CONFORMED COPY
CHASE MANHATTAN AUTO OWNER TRUST 1998-B
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of April 1, 1998
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms.................................................................... 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name................................................................................. 2
SECTION 2.2 Office............................................................................... 2
SECTION 2.3 Purposes and Powers.................................................................. 2
SECTION 2.4 Appointment of Owner Trustee......................................................... 3
SECTION 2.5 Initial Capital Contribution of Trust Estate......................................... 3
SECTION 2.6 Declaration of Trust................................................................. 3
SECTION 2.7 Title to Issuer Property............................................................. 3
SECTION 2.8 Situs of Issuer...................................................................... 3
SECTION 2.9 Representations and Warranties of the Depositor...................................... 3
SECTION 2.10 Liability of Certificateholders...................................................... 4
SECTION 2.11. Guaranteed Payments/Gross Income Allocations......................................... 4
SECTION 2.12. Deduction and Loss Allocations....................................................... 5
SECTION 2.13. Special Allocations.................................................................. 5
SECTION 2.14. Amended and Restated Trust Agreement................................................. 6
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership.................................................................... 6
SECTION 3.2 The Certificates..................................................................... 6
SECTION 3.3 Execution, Authentication and Delivery of Certificates............................... 6
SECTION 3.4 Registration of Transfer and Exchange of Certificates................................ 7
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates.................................... 8
SECTION 3.6 Persons Deemed Certificateholders.................................................... 8
SECTION 3.7 Access to List of Certificateholders' Names and
Addresses............................................................................ 9
SECTION 3.8 Maintenance of Office or Agency...................................................... 9
SECTION 3.9 Appointment of Paying Agent.......................................................... 9
SECTION 3.10 Book-Entry Certificates.............................................................. 10
SECTION 3.11 Notices to Clearing Agency........................................................... 11
SECTION 3.12 Definitive Certificates.............................................................. 11
SECTION 3.13 Authenticating Agent.................................................................. 12
SECTION 3.14 Actions of Certificateholders......................................................... 13
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to
Certain Matters....................................................................... 14
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters............................................................................... 14
SECTION 4.3 Action by Certificateholders with Respect to
Bankruptcy............................................................................ 15
SECTION 4.4 Restrictions on Certificateholders' Power............................................. 15
SECTION 4.5 Majority Control...................................................................... 15
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account..................................... 15
SECTION 5.2 Application of Funds in Certificate Distribution
Account............................................................................... 16
SECTION 5.3 Method of Payment..................................................................... 16
SECTION 5.4 No Segregation of Monies; No Interest................................................. 17
SECTION 5.5 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others........................... 17
SECTION 5.6 Signature on Returns; Tax Matters Partner............................................. 17
SECTION 5.7 Capital Accounts...................................................................... 17
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority..................................................................... 18
SECTION 6.2 General Duties........................................................................ 19
SECTION 6.3 Action upon Instruction............................................................... 19
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions.......................................................................... 19
SECTION 6.5 No Action Except under Specified Documents or
Instructions.......................................................................... 20
SECTION 6.6 Restrictions.......................................................................... 20
SECTION 6.7 Doing Business in Other Jurisdictions................................................. 20
ARTICLE VII
CONCERNING OWNER TRUSTEE
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SECTION 7.1 Acceptance of Trusts and Duties...................................................... 21
SECTION 7.2 Furnishing of Documents.............................................................. 23
SECTION 7.3 Representations and Warranties....................................................... 23
SECTION 7.4 Reliance; Advice of Counsel.......................................................... 24
SECTION 7.5 Not Acting in Individual Capacity.................................................... 24
SECTION 7.6 Owner Trustee May Own Certificates and Notes......................................... 24
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses.................................................... 25
SECTION 8.2 Indemnification...................................................................... 25
SECTION 8.3 Payments to Owner Trustee............................................................ 26
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement....................................................... 26
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee........................................... 27
SECTION 10.2 Resignation or Removal of Owner Trustee.............................................. 27
SECTION 10.3 Successor Owner Trustee.............................................................. 28
SECTION 10.4 Merger or Consolidation of Owner Trustee............................................. 29
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee........................................ 29
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments........................................................... 30
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders................................................................... 31
SECTION 11.3 Limitations on Rights of Others...................................................... 32
SECTION 11.4 Notices.............................................................................. 32
SECTION 11.5 Severability......................................................................... 32
SECTION 11.6 Separate Counterparts................................................................ 32
SECTION 11.7 Successors and Assigns............................................................... 32
SECTION 11.8 No Recourse.......................................................................... 32
SECTION 11.9 [Reserved]........................................................................... 33
SECTION 11.10 Headings............................................................................. 33
SECTION 11.11 GOVERNING LAW........................................................................ 33
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SECTION 11.12 Certificate Transfer Restrictions.................................................... 33
EXHIBITS
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate of Trust
Exhibit C - Form of Certificate Depository Agreement
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TRUST AGREEMENT dated as of April 1, 1998 between CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION ("Chase USA"), a national banking association having
its principal executive offices located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the depositor (in its capacity as the depositor, the
"Depositor") and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
the owner trustee (the "Owner Trustee").
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Capitalized terms are used
in this Agreement as defined in Section 1.1 to the Sale and Servicing Agreement
between the trust established by this Agreement and Chase USA, as Seller and
Servicer, dated as of April 1, 1998, as the same may be amended and supplemented
from time to time (the "Sale and Servicing Agreement").
(a) 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.
(b) 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.
(c) 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."
(d) 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.
(e) All calculations of the amount of interest
accrued on the Certificates shall be made on the basis of a 360-day year
consisting of twelve 30-day months.
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The trust created hereby shall be
known as "Chase Manhattan Auto Owner Trust 1998-B" (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
Certificateholders 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 Certificates pursuant to this Agreement, and
to sell, transfer or exchange the Notes and the Certificates;
(b) to acquire the property and assets set
forth in the Sale and Servicing Agreement from the Depositor
pursuant to the terms thereof, to make payments or distributions
on the Notes and Certificates, to make deposits to and
withdrawals from the Reserve Account and other accounts
established under this Agreement and the Sale and Servicing
Agreement;
(c) to assign, grant, transfer, pledge,
mortgage and convey the Trust Estate pursuant to the Indenture
and to hold, manage and distribute to the Certificateholders
pursuant to the terms of the Sale and Servicing Agreement any
portion of the 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 Certificateholders and the
Noteholders.
Issuer is hereby authorized to engage in the foregoing activities. 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.
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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, the Reserve Account
Initial Deposit. 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 and shall be
deposited in the Reserve Account pursuant to Section 5.6(a) of the Sale
and Servicing Agreement. 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 Certificateholders, 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 partnership. The parties agree that, unless otherwise required by
appropriate tax authorities, the Issuer will file or cause to be filed
annual or other necessary returns, reports and other forms consistent
with the characterization of the Issuer as a partnership for such tax
purposes. 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:
4
(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, and had at all relevant times,
and has, power, authority and legal right to acquire and own the
Receivables.
(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.
SECTION 2.10 Liability of Certificateholders. No
Certificateholder shall have any personal liability for any liability or
obligation of the Issuer.
SECTION 2.11. Guaranteed Payments/Gross Income
Allocations. (a) Inasmuch as the Certificateholders' Interest
Distributable Amount is determined and paid hereunder without regard to
the income of the Issuer, the Issuer shall treat payments of such amounts
as "guaranteed payments" within the meaning of Section 707(c) of the
Code. Consequently, Certificateholders will have ordinary income equal to
their allocable share of the Certificateholders' Interest Distributable
Amount, the Issuer will have an equivalent deduction for United States
federal income tax purposes and no amount of the gross income of the
Issuer shall be allocable to the Certificateholders (and there will be no
corresponding increase in a Certificateholders's Capital Account (as
defined herein) under Section 5.7). In the event that any taxing
authority does not respect such tax treatment, the gross income of the
Issuer for any calendar month as determined for United States federal
income tax purposes shall be allocated, after giving effect to special
allocations set forth in Section 2.13 of this Agreement and for purposes
of maintaining Capital Accounts under Section 5.7 of this Agreement as
follows:
5
(1) first, among the Certificateholders as of
the close of the last day of such calendar month, in
proportion to their ownership of the principal amount
of Certificates outstanding on such date, an amount
of gross income equal to the amount of interest that
accrues in such calendar month on the Certificates in
accordance with their terms, including interest
accruing thereon at the Certificate Rate monthly and
interest on amounts previously due under the
Certificates and not yet paid as provided therein;
and
(2) the balance of gross income, if any, to the
Depositor.
If the gross income of the Issuer for any month is insufficient for the
allocations described in clause (1) above, subsequent items of gross
income shall first be allocated to make up such shortfall before being
allocated as provided in clause (2).
(b) In the event the initial issue price of the
Certificates differs from their initial principal amount, there shall be
specially allocated to the Certificateholders the portion, if any, of the
offset for premium (in the case the issue price of the Certificates
exceeds their principal amount) or market discount income (in the case
the principal amount of the Certificates exceeds their issue price) on
the Receivables accruing for a calendar month that is attributable to
such difference.
SECTION 2.12. Deduction and Loss Allocations. (a) All items
of deduction and loss of the Issuer shall be allocated to the Depositor.
(b) To the extent that an allocation of the gross
amount of deductions and losses to the Depositor pursuant to Section
2.12(a) above would cause the Capital Account of the Depositor to be
reduced below zero, such excess deductions and losses shall be allocated
to the Certificateholders on a pro rata basis until each of their Capital
Accounts has been reduced to zero. If any amount of gross deduction or
loss has not been allocated pursuant to the preceding sentence because
all of the Certificateholders' Capital Accounts have been reduced to
zero, the amount of such remaining unallocated deductions or losses shall
be allocated to the Depositor.
(c) If any deductions or losses have been allocated
to the Certificateholders under Section 2.12(b) above, an amount of gross
income shall be allocated to such Certificateholders under this Section
2.12(c) in subsequent taxable years sufficient to offset the amount of
any deductions or losses previously allocated to such Certificateholders
under Section 2.12(b) above and, thereafter, allocations of gross income
and deductions shall be made in accordance with Sections 2.11 and 2.12(a)
of this Agreement.
SECTION 2.13. Special Allocations. In the event any
Certificateholder unexpectedly receives any adjustments, allocations or
distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4),
(5) or (6), items of Issuer gross income and gain shall be specially allocated
to such Certificateholder in an amount and manner sufficient to eliminate, to
the extent required by the Treasury Regulations, the deficit, if any, in the
balance of the Capital Account of such Certificateholder as quickly as possible;
provided, that
6
subsequent allocations of gross income and gain, or deductions, shall
take into account any special allocations made to a Certificateholder
under this Section 2.13 and shall be adjusted so that the amount of gross
income and gain, or deductions, allocated to a Certificateholder will
equal the amount of gross income and gain, or deductions, that would have
been allocated to such Certificateholder had no such special allocations
been made to such Certificateholder under this Section 2.13. This Section
2.13 is intended to comply with the qualified income offset provision in
Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations.
SECTION 2.14. Amended and Restated Trust Agreement. This
Agreement amends and restates in its entirety the Trust Agreement dated as of
March 11, 1998 between the Depositor and Owner Trustee.
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
and until the issuance of the Certificates, the Depositor shall be the
sole beneficiary of the Trust.
SECTION 3.2 The Certificates. The Certificates shall
be issued in denominations of $1,000 and integral multiples thereof;
provided that one Certificate that constitutes the residual portion of
the initial Certificate Balance may be issued in the form of a Definitive
Certificate in a denomination less than an integral multiple of $1,000.
Upon initial issuance, the Certificates shall each be in the form of
Exhibit A, which is incorporated by reference, and shall be issued as
provided in Section 3.10 in an aggregate principal amount equal to the
Certificate Balance. The Certificates 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. Certificates 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 Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates. No Certificate shall
entitle the Holder to any benefit under this Agreement, or shall 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. All
Certificates shall be dated the date of their authentication. A
transferee of a Certificate shall become a Certificateholder, and shall
be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon due registration of such Certificate in
such transferee's name pursuant to Section 3.4.
SECTION 3.3 Execution, Authentication and Delivery of
Certificates. Concurrently with the transfer of the Receivables to the Issuer
pursuant to the Sale and
7
Servicing Agreement, the Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance 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, in authorized denominations.
SECTION 3.4 Registration of Transfer and Exchange of
Certificates. The Owner Trustee shall cause to be kept at the office or
agency to be maintained pursuant to Section 3.8 by a certificate
registrar (the "Certificate Registrar"), a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided. Chase shall be the initial Certificate Registrar. In the event
that, subsequent to the date of issuance of the Certificates, Chase
notifies the Owner Trustee that it is unable to act as the Certificate
Registrar, the Owner Trustee shall act, or the Owner Trustee shall, with
the consent of the Depositor, appoint another bank or trust company,
having an office or agency located in The City of New York and which
agrees to act in accordance with the provisions of this Agreement
applicable to it, to act, as successor Certificate Registrar under this
Agreement.
The Owner Trustee may revoke such appointment and
remove Chase as the Certificate Registrar if the Owner Trustee determines
in its sole discretion that Chase failed to perform its obligations under
this Agreement in any material respect. Chase shall be permitted to
resign as the Certificate Registrar upon 30 days' written notice to the
Owner Trustee, the Depositor and the Issuer; provided, however, that such
resignation shall not be effective and Chase shall continue to perform
its duties as the Certificate Registrar until the Owner Trustee has
appointed a successor Certificate Registrar with the consent of the
Depositor.
An institution succeeding to the corporate agency
business of the Certificate Registrar shall continue to be the
Certificate Registrar without the execution or filing of any paper or any
further act on the part of the Owner Trustee or such Certificate
Registrar.
Upon surrender for registration of transfer of any
Certificate at the office or agency maintained pursuant to Section 3.8,
the Owner Trustee shall execute, authenticate and (if the Certificate
Registrar is different than the Owner Trustee, then the Certificate
Registrar shall) deliver (or shall cause Chase as its authenticating
agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like class and aggregate face amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the
option of a Holder, Certificates may be exchanged for other Certificates
of the same class in authorized denominations of a like aggregate amount
upon surrender of the Certificates to be exchanged at the office or
agency maintained pursuant to Section 3.8.
Whenever any Certificate is surrendered for exchange,
the Owner Trustee shall execute, authenticate and (if the Certificate
Registrar is different than the Owner Trustee, then the Certificate
Registrar shall) deliver the Certificates which the Certificateholder
making
8
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Owner
Trustee and the Certificate Registrar duly executed by the Holder, which
signature on such assignment must be guaranteed by a member of the New
York Stock Exchange or a commercial bank or trust company.
Each Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by
the Owner Trustee or Certificate Registrar in accordance with its
customary practice.
No service charge shall be made for any registration
of transfer or exchange of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered to
the Certificate Registrar, of if the Certificate Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there shall be delivered to the Certificate Registrar
and the Owner Trustee such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that
such Certificate shall have been acquired by a bona fide purchaser, the
Owner Trustee on behalf of Issuer shall execute and the Owner Trustee, or
Chase, as the Owner Trustee's authenticating agent, shall authenticate
and (if the Certificate Registrar is different from the Owner Trustee,
then the Certificate Registrar shall) deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like class, tenor and denomination. If, after delivery of
such replacement Certificate, a bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued
presents for payment such original Certificate, the Owner Trustee or the
Certificate Registrar shall be entitled to recover such replacement
Certificate from such Person to whom such replacement Certificate was
delivered or any assignee of such Person, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by
the Owner Trustee or the Certificate Registrar in connection therewith.
In connection with the issuance of any new Certificate under this Section
3.5, the Owner Trustee or the Certificate Registrar 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 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 mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior
to due presentation of a Certificate for registration of transfer, the
Owner Trustee or the Certificate Registrar may treat the Person in whose
name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
9
pursuant to Section 5.2 and for all other purposes whatsoever, and
neither the Owner Trustee nor the Certificate Registrar shall be bound by
any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders'
Names and Addresses. The Certificate Registrar shall furnish or cause to be
furnished to the Servicer and the Depositor (and to the Owner Trustee, if the
Owner Trustee is not the Certificate Registrar) within 15 days after receipt by
the Certificate Registrar of a request therefor from the Servicer or the
Depositor (or the Owner Trustee) in writing, a list, in such form as the
Servicer or the Depositor (or the Owner Trustee) may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date.
If, at such time, if any, as Definitive Certificates have been issued, if three
or more Holders of Certificates or one or more Holders of Certificates
evidencing not less than 25% of the Certificate Balance apply in writing to the
Certificate Registrar, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and such application is accompanied by
a copy of the communication that such applicants propose to transmit, then the
Certificate Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed to hold none of the Depositor, the
Certificate Registrar, the Servicer or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
SECTION 3.8 Maintenance of Office or Agency. The
Owner Trustee shall maintain in the City of New York, an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Owner Trustee initially designates the offices of The
Chase Manhattan Bank located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ as its office for such purposes. The Owner Trustee shall give prompt
written notice to the Depositor, the Servicer and to the Certificateholders of
any change in the location of the Certificate Register or any such office or
agency.
SECTION 3.9 Appointment of Paying Agent. The Owner
Trustee may appoint a Paying Agent with respect to the Certificates. The Owner
Trustee hereby appoints Chase as the initial Paying Agent. The Paying Agent
shall have the revocable power to withdraw funds from the Certificate
Distribution Account, make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and shall report the
amounts of such distributions to the Owner Trustee. The Owner Trustee may revoke
such power and remove the Paying Agent if the Owner Trustee determines in its
sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect or for other good
cause. The Paying Agent shall be permitted to resign upon 30 days' written
notice to the Owner Trustee and the Servicer. In the event that Chase shall no
longer be the Paying Agent, the Owner Trustee shall appoint a successor to act
as Paying Agent (which shall be a bank or trust company and may be the Owner
Trustee), with the consent of the Depositor (which consent shall not be
unreasonably withheld). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee (unless it
is the Owner Trustee) to execute and deliver to the Owner Trustee an instrument
in which such successor Paying Agent or
10
additional Paying Agent shall agree with the Owner Trustee that as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee and upon the removal of a Paying Agent, such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.1, 7.3, 7.4, 7.6, 8.1 and 8.2 shall apply to the Owner Trustee also
in its role as Paying Agent, for so long as the Owner Trustee shall act as
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
SECTION 3.10 Book-Entry Certificates. The
Certificates, upon original issuance, will be issued in the form of a
typewritten Certificate or Certificates representing Book-Entry Certificates, to
be delivered to The Depository Trust Company, the initial Clearing Agency, by or
on behalf of the Issuer; provided that one Certificate that constitutes the
residual portion of the Certificate Balance may be issued in the form of a
Definitive Certificate in a denomination less than an integral multiple of
$1,000. Such Book-Entry Certificate or Certificates shall initially be
registered on the Certificate Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no beneficial owner (other than Chase
Securities Inc.) will receive a definitive Certificate representing such
beneficial owner's interest in such Certificate, except as provided in Section
3.12. Unless and until Definitive Certificates have been issued to beneficial
owners pursuant to Section 3.12:
(a) the provisions of this Section 3.10 shall be in
full force and effect;
(b) the Certificate Registrar, the Paying
Agent and the Owner Trustee shall be entitled to deal
with the Clearing Agency and the Clearing Agency
Participants for all purposes of this Agreement
relating to the Book-Entry Certificates (including
the payment of principal of and interest on the
Book-Entry Certificates and the giving of
instructions or directions to Certificate Owners of
Book-Entry Certificates) as the sole Holder of
Book-Entry Certificates and shall have no obligations
to Certificate Owners thereof;
(c) to the extent that the provisions of this
Section conflict with any other provisions of this
Agreement, the provisions of this Section shall
control;
(d) the rights of Certificate Owners of the
Book-Entry Certificates shall be exercised only
through the Clearing Agency (or to the extent
Certificateholders are not Clearing Agency
Participants, through the Clearing Agency
Participants through which such Certificateholders
own Book-Entry Certificates), and shall be limited to
those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or
Clearing Agency Participants, and all references in
this Agreement to actions by Cer-tificateholders
shall refer to actions taken by the Clearing Agency
upon in-
11
structions from the Clearing Agency Participants, and
all references in this Agreement to distributions,
notices, reports and statements to
Certificate-holders shall refer to distributions,
notices, reports and statements to the Clearing
Agency, as registered holder of the Certificates, as
the case may be, for distribution to
Certificateholders in accordance with the procedures
of the Clearing Agency. Pursuant to the Certificate
Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 3.12, the
initial Clearing Agency will make book-entry
transfers among Clearing Agency Participants and
receive and transmit payments of principal of and
interest on the Book-Entry Certificates to such
Clearing Agency Participants; and
(e) whenever this Agreement requires or
permits actions to be taken based upon instructions
or directions of the Holders of Certificates
evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it
has received instructions to such effect from
Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively,
such required percentage of the beneficial interest
in the Book-Entry Certificates and has delivered such
instructions to the Owner Trustee.
SECTION 3.11 Notices to Clearing Agency. Whenever a
notice or other communication to Certificateholders is required under
this Agreement, unless and until Definitive Certificates shall have been
issued to Certificate Owners pursuant to Section 3.12, the Owner Trustee
and the Paying Agent shall give all such notices and communications
specified herein to be given to Certificateholders to the Clearing
Agency, and shall have no obligations to Certificate Owners.
SECTION 3.12 Definitive Certificates. If (a) the
Servicer advises the Owner Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities with
respect to the Certificates, and the Servicer is unable to locate a
qualified successor, (b) the Servicer at its option elects to terminate
the book-entry system through the Clearing Agency, or (c) after the
occurrence of an Event of Servicing Termination or Event of Default,
Certificate Owners of the Certificates representing beneficial interests
aggregating not less than a majority of the Certificate Balance advise
the Clearing Agency through the Clearing Agency Participants, and the
Owner Trustee, in writing, and if the Clearing Agency shall so notify the
Owner Trustee, that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of Certificate Owners,
then the Owner Trustee shall notify the Clearing Agency of the occurrence
of any such event, which shall be responsible to notify the Certificate
Owners of the occurrence of such event and of the availability of the
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the typewritten Certificate or
Certificates representing the Book-Entry Certificates by the Clearing
Agency, accompanied by re-registration instructions, the Owner Trustee
shall execute, authenticate, or cause to be authenticated, and (if the
Certificate Registrar is different than the Owner Trustee, then the
Certificate Registrar shall) deliver the Definitive Certificates in
accordance with the instructions of the Clearing Agency. Neither the
Certificate Registrar nor the Owner Trustee
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shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Certificate Registrar, to the
extent applicable with respect to such Definitive Certificates, and the Owner
Trustee and the Paying Agent shall recognize the Holders of the Definitive
Certificates as Certificateholders. The Definitive Certificates shall be
printed, lithographed or engraved or may be produced in any other matter as is
reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof.
SECTION 3.13 Authenticating Agent. (a) The Owner
Trustee may appoint one or more authenticating agents with respect to the
Certificates which shall be authorized to act on behalf of the Owner Trustee in
authenticating the Certificates in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the Certificates. The Owner
Trustee hereby appoints Chase as Authenticating Agent for the authentication of
Certificates upon any registration of transfer or exchange of such Certificates.
Whenever reference is made in this Agreement to the authentication of
Certificates 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 3.13.
(e) The provisions of Sections 7.1, 7.3, 7.4, 7.6,
8.1 and 8.2 shall be applicable to any authenticating agent.
13
(f) Pursuant to an appointment made under this
Section 3.13, the Certificates 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.
,
as Owner Trustee
By: /s/
--------------------
Authorized Officer
or
/s/
------------------------
as Authenticating Agent
for the Owner Trustee,
/s/
--------------------
Authorized Officer
SECTION 3.14 Actions of Certificateholders. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders 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 3.14.
(b) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Owner Trustee deems sufficient.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other act by a Certificateholder shall bind every
Holder of every Certificate issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof, in respect of anything done, or omitted
to be done, by the Owner Trustee, the Depositor or the Servicer in reliance
thereon, regardless of whether notation of such action is made upon such
Certificate.
(d) The Owner Trustee may require such additional
proof of any matter referred to in this Section 3.14 as it shall deem necessary.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders 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 Certificateholders in writing
of the proposed action and the Certificateholders shall not have notified the
Owner Trustee in writing prior to the 30th day after such notice is given that
such Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or
lawsuit by the Issuer (except claims or lawsuits
brought in connection with the collection of the
Receivables) 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 for collection of the
Receivables);
(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 Certificateholders;
(e) the amendment, change or modification of
the Sale and Servicing Agreement, except to any
amendment where the consent of any Certificateholder
is not required under the terms of the Sale and
Servicing 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 or this
Agreement, as applicable.
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Paying Agent, Authenticating Agent or Certificate
Registrar within five Business Days thereof.
SECTION 4.2 Action by Certificateholders with Respect
to Certain Matters. The Owner Trustee shall not have the power, except upon the
direction of the Certificateholders, to (a) remove the Servicer under the Sale
and Servicing Agreement pursuant to Article VIII thereof, (b) remove the
Administrator under the Administration
15
Agreement pursuant to Section 8 thereof or (c) except as expressly provided in
the Basic Documents, sell the Receivables or any interest therein after the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed by the
Certificateholders.
SECTION 4.3 Action by Certificateholders with Respect
to Bankruptcy. The Owner Trustee shall not have the power to commence a
voluntary proceeding in bankruptcy relating to the Issuer without the unanimous
prior approval of all Certificateholders unless the Owner Trustee reasonably
believes that the Issuer is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Issuer or the Owner Trustee under this Agreement or any of the other
Basic Documents or would be contrary to Section 2.3 nor shall the Owner Trustee
be obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Holders of Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by the Holders of Certificates evidencing not less
than a majority of the Certificate Balance at the time of the delivery of such
notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution
Account. The Owner Trustee, for the benefit of Certificateholders, shall
establish and maintain in the name of the Issuer an Eligible Deposit Account
(the "Certificate Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee for the benefit of the Certificateholders.
The Owner Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Certificate
Distribution Account and in all proceeds thereof. If, at any time, the
Certificate Distribution Account ceases to be an Eligible Deposit Account, the
Servicer shall establish a new Certificate Distribution Account as an Eligible
Deposit Account in accordance with Section 5.1(b) of the Sale and Servicing
Agreement, and the Owner Trustee shall transfer any cash and/or any investments
to such new Certificate Distribution Account and shall assist the Servicer in
establishing such account as necessary.
Amounts on deposit in the Certificate Distribution Account
shall not be invested.
16
SECTION 5.2 Application of Funds in Certificate Distribution
Account. (a) Not later than 12:00 noon, New York City time, on each Distribution
Date, the Owner Trustee or the Paying Agent on behalf of the Owner Trustee will,
based on the information contained in the Servicer's Certificate delivered on
the related Determination Date pursuant to Section 4.8 of the Sale and Servicing
Agreement, distribute to Certificateholders, to the extent of the funds
available, amounts deposited in the Certificate Distribution Account pursuant to
Section 5.5 of the Sale and Servicing Agreement on such Distribution Date in the
following order of priority:
(i) first, to the Certificateholders,
on a pro rata basis, an amount equal to the
Certificateholders' Interest Distributable Amount;
and
(ii) second, to the
Certificateholders, on a pro rata basis, an amount
equal to the Certificateholders' Principal
Distributable Amount.
(b) On each Distribution Date, the Owner Trustee
shall send, or cause to be sent, to each Certificateholder the statement
provided to the Owner Trustee by the Servicer pursuant to Section 5.8 of
the Sale and Servicing Agreement on such Distribution Date.
(c) In the event that any withholding tax is imposed on the
Issuer's payment (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. Each of the Owner Trustee and the Paying Agent is
hereby authorized and directed to retain from amounts otherwise distributable to
the Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Issuer (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Issuer and remitted to the appropriate taxing
authority. The Owner Trustee or the Paying Agent, on its behalf, intends to
withhold United States withholding taxes from any amounts allocable or
distributed to nonUnited States Certificateholders at a rate of 35% for
non-United States Certificateholders that are classified as corporations for
United States federal income tax purposes and at a rate of 39.6% for all other
non-United States Certificateholders. In the event that a Certificateholder
wishes to apply for a refund of any such withholding tax, the Owner Trustee and
the Paying Agent shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee and the Paying Agent for any out-of-pocket expenses incurred.
SECTION 5.3 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the preceding Record Date
either (a) by wire transfer, in immediately available funds, to the account of
such Holder at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Distribution Date and such Holder's Certificates in the aggregate evidence a
denomination of not less than
17
$1,000,000 or (b) by check mailed to such Certificateholder at the address of
such Holder appearing in the Certificate Register; provided that, unless
Definitive Certificates have been issued pursuant to Section 3.12, with respect
to Certificates registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), distributions will
be made by wire transfer in immediately available funds to the account
designated by such nominee.
SECTION 5.4 No Segregation of Monies; No Interest. Subject
to Sections 5.1 and 5.2, monies received by the Owner Trustee or any Paying
Agent hereunder need not be segregated in any manner except to the extent
required by law and may be deposited under such general conditions as may be
prescribed by law, and neither the Owner Trustee nor any Paying Agent shall be
liable for any interest thereon.
SECTION 5.5 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Issuer on a
calendar year basis on the accrual method of accounting, (b) deliver (or cause
to be delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including
Schedule K-1) to enable each Certificateholder to prepare its Federal and state
income tax returns, (c) prepare or cause to be prepared and file such tax
returns relating to the Issuer (including a partnership information return, Form
1065), and make such elections as may from time to time be required or
appropriate under any applicable state or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership for
Federal income tax purposes and (d) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.2(c) with
respect to income or distributions to Certificateholders. The Depositor shall
sign all tax information returns filed pursuant to this Section 5.5 and any
other returns as may be required by law. The Owner Trustee shall elect under
Section 1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
SECTION 5.6 Signature on Returns; Tax Matters Partner.
Notwithstanding the provisions of Section 5.5, the Depositor shall sign on
behalf of the Issuer the tax returns of the Issuer, unless applicable law
requires the Owner Trustee to sign such documents, in which case such documents
shall be signed by the Owner Trustee at the written direction of the Depositor.
The Depositor shall be the "tax matters partner" of the
Issuer pursuant to the Code.
SECTION 5.7 Capital Accounts. The Issuer shall maintain
accounts ("Capital Accounts") with respect to each Certificateholder and the
Depositor (each an "Owner"). For this purpose, Capital Accounts shall be
maintained in accordance with the following provisions:
18
(a) Each Owner's Capital Account shall be
increased by the Capital Contributions (as defined
below) of such Owner, such Owner's distributive share
of gross income (if any) and any items in the nature
of income or gain that are allocated to such Owner
pursuant to Section 2.11, 2.12(c) or 2.13.
(b) Each Owner's Capital Account shall be
reduced by any amount distributed to such Owner
(including, in the case of the Depositor, any amount
released or otherwise distributed to the Depositor
from the Reserve Account under Section 5.6 of the
Sale and Servicing Agreement) and any items in the
nature of deductions or losses that are allocated to
such Owner pursuant to Section 2.12 or 2.13.
(c) In the event all or a portion of a
Certificate is transferred in accordance with the
terms of this Agreement, the transferee shall succeed
to the Capital Account of the transferor to the
extent it related to such Certificate or a portion
thereof.
"Capital Contribution" means the amount of any cash
contributed to the Issuer by an Owner (including any amounts deemed to be
contributed in connection with the original issuance of the Certificates),
including, in the case of the Depositor, the amount of any Receivables deemed to
have been contributed by the Depositor (with such amount for Receivables
intended to reflect the amount of the Receivables and monies due thereon or with
respect thereto, including accrued but unpaid interest and finance charges,
conveyed to the Issuer by the Depositor on the Closing Date under Article II of
the Sale and Servicing Agreement). The foregoing provisions and the other
provisions of this Agreement relating to the maintenance of Capital Accounts are
intended to comply with Section 1.704-l(b) of the Treasury Regulations and shall
be interpreted in a manner consistent therewith.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Issuer is named as a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Issuer is named
as a party and any amendment thereto, in each case, in such form as the
Depositor shall approve as evidenced conclusively by the Owner Trustee's
execution thereof, and, on behalf of the Issuer at the written direction of the
Depositor, to direct the Indenture Trustee to authenticate and deliver Class A-1
Notes in the aggregate principal amount of $250,000,000.00, Class A-2 Notes in
the aggregate principal amount of $200,000,000.00, Class A-3 Notes in the
aggregate principal amount of $321,000,000.00 and Class A-4 Notes in the
aggregate principal amount of $282,800,000.00. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Issuer pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Administrator
recommends or directs in writing with respect to the Basic Documents.
19
SECTION 6.2 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 Certificateholders,
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 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 Administration Agreement.
SECTION 6.3 Action upon Instruction. (a) Subject to Article
IV, the Certificateholders 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 Certificateholders pursuant to Section 4.5.
(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 Certificateholders
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 Certificateholders 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
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.4 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
20
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 6.3;
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 6.5 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 6.3.
SECTION 6.6 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 the Owner Trustee, would result in the Issuer's
becoming taxable as a corporation for United States federal income tax purposes.
The Owner Trustee and Depositor agree that no election to treat the Issuer other
than as a partnership for United States federal income tax purposes or any
relevant state tax purposes shall be made by or on behalf of the Issuer. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
SECTION 6.7 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
6.7, 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)
21
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 appoint an additional trustee pursuant to Section 10.5 to proceed with such
action.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the other Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or gross negligence or (ii)
in the case of the breach of any representation or warranty contained in Section
7.3 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer of the Owner Trustee unless it is
proved that the Owner Trustee was grossly negligent
in ascertaining the pertinent facts;
(b) The Owner Trustee shall not be liable with
respect to any action it takes or omits to take in
good faith in accordance with the instructions of the
Certificateholders given pursuant to Section 6.3;
(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
Certificates, shall not be accountable for
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the use or application by the Depositor of the
proceeds from the Certificates, and the Owner Trustee
shall in no event assume or incur any liability, duty
or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided
for herein and in the Basic 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 Receivable, or the
perfection and priority of any security interest
created by any Receivable in any Financed Vehicle or
the maintenance of any such perfection and priority;
or the ability of the Owner Trust Estate to generate
the payments to be distributed to Certificateholders
under this Agreement or the Noteholders under the
Indenture, including: the existence, condition and
ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the
existence and contents of any Receivable on any
computer or other record thereof; the validity of the
assignment of any Receivable to the Issuer or of any
intervening assignment; the completeness of any
Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the
Servicer with any warranty or representation made
under any Basic Document or in any related document
or the accuracy of any such warranty or
representation or any action of the Indenture
Trustee, the Administrator or the Servicer or any
subservicer taken in the name of the Owner Trustee;
(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 Administration Agreement,
the Indenture Trustee under the Indenture or the
Servicer under the Sale and Servicing Agreement;
(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 any of the Certificateholders, unless
such Certificateholders have 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
23
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 7.2 Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholders 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 7.3 Representations and Warranties. The Owner
Trustee hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, 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
24
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 7.4 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 7.5 Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created, Wilmington
Trust Company 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 7.6 Owner Trustee May Own Certificates and Notes.
The Owner Trustee in its individual or any other capacity may become the owner
or pledgee of the Certificates or 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.
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ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses. In accordance
with Section 4.7 of the Sale and Servicing Agreement, 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 Servicer and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Servicer for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder except any such
expenses as may arise from its gross negligence, wilful misfeasance, or bad
faith or that is the responsibility of Certificateholders under this Agreement.
SECTION 8.2 Indemnification. In accordance with Section 7.2
of the Sale and Servicing Agreement, the Servicer 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 Servicer 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 7.1. 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 8.2, such Indemnified Party shall promptly notify the Servicer in
writing, and the Servicer upon request of the Indemnified Party shall retain
counsel reasonably satisfactory to the Indemnified Party (or, with the consent
of the Servicer, counsel selected by the Indemnified Party acceptable to the
Servicer) to represent the Indemnified Party and any others the Servicer may
designate in such proceeding and shall pay the reasonable fees and expenses of
such counsel related to such proceeding. The Servicer 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 Servicer agrees to indemnify any Indemnified Party from and
against any loss or liability by reason of such settlement or judgment. The
Servicer 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.
26
SECTION 8.3 Payments to Owner Trustee. Any amounts paid to
the Owner Trustee pursuant to this Article VIII shall be deemed not to be a part
of the Owner Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement. (a) This
Agreement (other than Article VIII) and the Issuer shall terminate and be of no
further force or effect, on the Distribution Date next succeeding the month
which is six months after 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, the Sale and Servicing Agreement and Article V,
including the payment to the Certificateholders of all amounts required to be
paid to them pursuant to this Agreement; provided, however, that in no event
shall the Trust created by this Agreement continue beyond the expiration of 21
years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador to the Court of St. James's, living on the date of
this Agreement. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder or Certificate Owner shall not (x) operate to terminate
this Agreement or the Issuer, nor (y) entitle such Certificateholder's or
Certificate Owner'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 Issuer or the Owner Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Issuer, specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee or the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner Trustee by letter to
the Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 9.1(c) of the Sale
and Servicing Agreement, stating (i) the Distribution Date upon or with respect
to which final payment of the Certificates shall be made upon or with respect to
which final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Owner Trustee or the Paying
Agent therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Owner Trustee or the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Paying Agent at the time such notice
is given to the Certificateholders. Upon presentation and surrender of the
Certificates, the Owner Trustee or the Paying Agent shall cause to be
distributed to the Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.2.
27
If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Owner Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Owner Trust Estate after
exhaustion of such remedies shall be distributed, subject to applicable escheat
laws, by the Owner Trustee to the Depositor.
(d) Any funds remaining in the Issuer after funds for final
distribution have been distributed or set aside for distribution shall be
distributed by the Owner Trustee to the Depositor.
(e) Upon the winding up of the Issuer and its termination,
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.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation authorized to exercise
corporate trust powers; and having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by Federal or state
authorities. 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 10.2. 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 10.2 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
28
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 10.1 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 10.3 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 10.3 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.2 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 10.1.
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 all Certificateholders, 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
29
Owner Trustee, the successor Owner Trustee shall cause such notice to be
mailed at the expense of the Administrator.
SECTION 10.4 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 form 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 10.1,
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 10.5 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 10.5 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 10.1 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.3.
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
30
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 XI
MISCELLANEOUS
SECTION 11.1 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
Certificateholders, 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
Certificateholders; provided that such action shall not, as evidenced by an
Opinion of Counsel, materially and adversely affect the interests of any
Noteholder or Certificateholder; provided, further, that the Depositor shall
deliver written notice of such amendments to each Rating Agency prior to the
execution of any such amendment. Notwithstanding the foregoing, no amendment
modifying the provisions of Section 5.2 shall become effective without
satisfaction of the Rating Agency Condition.
31
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 and, to the extent affected
thereby, the consent of the Holders of Certificates evidencing not less than a
majority of the Certificate Balance 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
Certificateholders; 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 on the Receivables or distributions that shall be required to be
made for the benefit of the Noteholders or the Certificateholders, or (b) reduce
the aforesaid percentage of the Outstanding Amount of the Notes and the
Certificate Balance 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
Certificateholders or 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. The manner of obtaining
such consents (and any other consents of the Certificateholders provided for in
this Agreement or in any other Basic Document) and of evidencing the
authorization of the execution thereof by the Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
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 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their 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.
32
SECTION 11.3 Limitations on Rights of Others. Except for
Sections 2.7 and 2.10, the provisions of this Agreement are solely for the
benefit of the Owner Trustee, the Depositor, the Certificateholders 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 11.4 Notices. (a) Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing and
shall be deemed given upon receipt personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested and shall be deemed
to have been duly given upon receipt, if to the Owner Trustee, addressed to
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Corporate Trust Department, if to the
Depositor, addressed to, Chase Manhattan Bank USA, National Association, c/o
Chase Manhattan Automotive Finance Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Financial Controller; or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, regardless of whether the Certificateholder
receives such notice.
SECTION 11.5 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 11.6 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 11.7 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 each Certificateholder
and its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8 No Recourse. Each Certificateholder by
accepting a Certificate acknowledges that such Certificateholder's Certificates
represent equity interests in the Issuer only and do not represent interests in
or obligations of the Depositor, the Servicer, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof, and no recourse may be
33
had against such parties or their assets, except as may be expressly set forth
or contemplated in this Agreement, the Certificates or the other Basic
Documents.
SECTION 11.9 [Reserved].
SECTION 11.10 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 11.11 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 11.12 Certificate Transfer Restrictions. (a) The
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) which is subject to the provisions
of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of the Code
other than a governmental or church plan described in Section 4975(g)(2) or (3)
of the Code), or (iii) any entity whose underlying assets include "plan assets"
by reason of any such plan's investment in the entity (excluding any investment
company that is registered under the Investment Company Act of 1940, as amended)
(each, a "Benefit Plan"). By accepting and holding a Certificate, the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan, and that no assets of a Benefit Plan were used to acquire the
Certificate. The foregoing restrictions shall not apply to acquisitions or
holdings of Certificates with assets of the general account of an insurance
company, to the extent that the acquisition or holding, respectively, of such
Certificates (i) is and will be permissible under Section 401(c) of ERISA and
final regulations thereunder or another exemption under ERISA and (ii) does not
and will not result in the contemplated operations of the Trust being treated as
non-exempt prohibited transactions.
(b) The Certificates may not be acquired by or for the
account of an individual or entity that is not a U.S. person as defined in
Section 7701(a)(30) of the Code and any transfer of a Certificate to a person
that is not a U.S. Person shall be void. By accepting and holding a Certificate,
the Holder shall be deemed to have represented and warranted under penalties of
perjury that it (or, if it is acting as a nominee, the beneficial owner) is a
U.S. Person.
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Title: Vice President
EXHIBIT A
NUMBER $
R- CUSIP NO. _________
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) WHICH IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN (AS DEFINED IN
SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") OTHER THAN A PLAN DESCRIBED IN SECTION 4975(g)(2) OR (3) OF THE
CODE), OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS"
BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY (EXCLUDING ANY INVESTMENT
COMPANY THAT IS REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) (EACH, A "PLAN"). BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE
HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT IS NOT SUCH A PLAN AND THAT NO ASSETS
OF SUCH A PLAN WERE USED TO ACQUIRE THIS CERTIFICATE. THE FOREGOING
RESTRICTIONS SHALL NOT APPLY TO ACQUISITIONS OR HOLDINGS OF CERTIFICATES
WITH ASSETS OF THE GENERAL ACCOUNT OF AN INSURANCE COMPANY, TO THE EXTENT
THAT THE ACQUISITION OR HOLDING, RESPECTIVELY, OF SUCH CERTIFICATES (i)
IS AND WILL BE PERMISSIBLE UNDER SECTION 401(c) OF ERISA AND FINAL
REGULATIONS THEREUNDER OR ANOTHER EXEMPTION UNDER ERISA AND (ii) DOES NOT
AND WILL NOT RESULT IN THE CONTEMPLATED OPERATIONS OF THE TRUST BEING
TREATED AS NON-EXEMPT PROHIBITED TRANSACTIONS.
THE CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN
INDIVIDUAL OR ENTITY THAT IS NOT A U.S. PERSON AS DEFINED IN SECTION
7701(A)(30) OF THE CODE. BY ACCEPTING AND HOLDING A CERTIFICATE, THE
HOLDER SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT (OR, IF
IT IS ACTING AS A NOMINEE, THE BENEFICIAL OWNER) IS A U.S. PERSON.
2
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN
INSTALLMENTS AS SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1998-B
6.050% ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of
the Issuer, as defined below, the property of which includes a pool of
retail installment sales contracts or purchase money notes and security
agreements and other notes secured by new or used automobiles or light
duty trucks and sold to the Issuer by Chase Manhattan Bank USA, National
Association, a national banking association.
(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 ___________________________ is the
registered owner of ___________________________ nonassessable,
fully-paid, beneficial ownership interest in certain distributions of
Chase Manhattan Auto Owner Trust 1998-B (the "Issuer") formed by Chase
Manhattan Bank USA, National Association, a national banking association
(the "Depositor"). This Certificate has a Certificate Rate of 6.050% per
annum.
3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
not in its individual capacity or not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By:_____________________ By:__________________________
Authenticating Agent
4
Issuer was created pursuant to a Trust Agreement dated as of
April 1, 1998 (the "Trust Agreement"), between the Depositor and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"), a
summary of certain of the pertinent provisions of which is set forth
below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in Section 1.1 of the Sale
and Servicing Agreement between the Issuer and Chase Manhattan Bank USA,
National Association, as Seller and Servicer, dated as of April 1, 1998,
as the same may be amended or supplemented from time to time (the "Sale
and Servicing Agreement").
This Certificate is one of the duly authorized Certificates of
the Issuer designated as "6.050% Asset Backed Certificates" (herein
called the "Certificates"). Issued under the Indenture dated as of April
1, 1998, between the Issuer and Norwest Bank Minnesota, National
Association, as trustee (the "Indenture"), are four classes of Notes
designated as "Class A-1 5.578% Asset Backed Notes" (the "Class A-1
Notes"), "Class A-2 5.729% Asset Backed Notes" (the "Class A-2 Notes"),
"Class A-3 5.750% Asset Backed Notes" (the "Class A-3 Notes") and "Class
A-4 5.800% Asset Backed Notes" (the "Class A-4 Notes" and, together with
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, the "Notes"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the holder of this Certificate by virtue of the
acceptance hereof assents and by which such holder is bound.
The holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Sale
and Servicing Agreement, the Indenture and the Trust Agreement, as
applicable.
It is the intent of the Depositor and Certificateholders that,
for United States federal income tax purposes, the Issuer will be treated
as a partnership and the Depositor and the Certificateholders will be
treated as partners in that partnership. The Certificateholders by
acceptance of a Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Certificates for such tax
purposes as equity (i.e., partnership interests) in the Issuer.
Each Certificateholder, by its acceptance of a Certificate or a
beneficial interest in a Certificate, acknowledges and agrees that
neither the Depositor nor the Owner Trustee is authorized to elect to
treat the Issuer other than as a partnership for United States federal
income tax purposes or any relevant state tax purposes. Each
Certificateholder, by its acceptance of a Certificate or a beneficial
interest in a Certificate, agrees not to take any actions (or direct the
Owner Trustee to take such acts or actions) that would violate such
restriction.
The Certificates do not represent an obligation of, or an
interest in, the Depositor, the Servicer, the Owner Trustee, the
Indenture Trustee or any Affiliates of any of them and no recourse may be
had against such parties or their assets, except as may be expressly set
forth or contemplated herein or in the Trust Agreement, the Indenture or
the other Basic Documents.
5
This certificate may not be acquired by or for the account of
(i) an employee benefit plan (as defined in section 3(3) of the employee
retirement income security act of 1974, as amended ("ERISA")) which is
subject to the provisions of Title I of ERISA, (ii) a plan (as defined in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code") other than a plan described in Section 4975(g)(2) or (3) of the
Code), or (iii) any entity whose underlying assets include "plan assets"
by reason of a plan's investment in the entity (excluding any investment
company that is registered under the Investment Company Act of 1940, as
amended) (each, a "Plan"). By accepting and holding this Certificate, the
holder hereof and the Certificate Owner shall each be deemed to have
represented and warranted that it is not such a Plan and that no assets
of such a Plan were used to acquire this Certificate. The foregoing
restrictions shall not apply to acquisitions or holdings of Certificates
with assets of the general account of an insurance company, to the extent
that the acquisition or holding, respectively, of such Certificates (i)
is and will be permissible under Section 401(c) of ERISA and final
regulations thereunder or another exemption under ERISA and (ii) does not
and will not result in the contemplated operations of the Trust being
treated as non-exempt prohibited transactions.
The Certificates may not be acquired by or for the account of an
individual or entity that is not a U.S. Person as defined in Section
7701(A)(30) of the Code. By accepting and holding a Certificate, the
Holder shall be deemed to have represented and warranted that it (or, if
it is acting as a nominee, the Beneficial Owner) is a U.S. Person.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee or the
Authentication Agent, by manual or facsimile signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of Issuer and
not in its individual capacity, has caused this Certificate to be duly
executed.
CHASE MANHATTAN AUTO
OWNER TRUST 1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
Dated: By: /s/
----------------------------
6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ____________________ as Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
_________________________*
Signature Guaranteed:
_________________________*
--------
* NOTICE: The signature to this assignment must correspond with
the name of the registered owner as it appears on the face of
the within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a
commercial bank or trust company.
EXHIBIT B
CERTIFICATE OF TRUST
EXHIBIT C
CERTIFICATE DEPOSITORY AGREEMENT