Exhibit 4.10
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CHASE CREDIT CARD OWNER TRUST 2002-2
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of April 2, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms..............................................1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name...........................................................3
SECTION 2.2. Office.........................................................3
SECTION 2.3. Purposes and Powers............................................3
SECTION 2.4. Appointment of Owner Trustee...................................4
SECTION 2.5. Initial Capital Contribution of Trust Estate...................4
SECTION 2.6. Declaration of Trust...........................................5
SECTION 2.7. Title to Owner Trust Property..................................5
SECTION 2.8. Situs of Owner Trust...........................................5
SECTION 2.9. Representations and Warranties of the Depositor................5
SECTION 2.10. Liability of Certificateholder.................................6
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership..............................................6
SECTION 3.2. The Certificate................................................6
SECTION 3.3. Execution, Authentication and Delivery of Certificates.........7
SECTION 3.4. Restrictions on Transfer.......................................7
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate...............7
SECTION 3.6. Authenticating Agent...........................................8
SECTION 3.7. Actions of Certificateholder...................................9
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to
Certain Matters..............................................9
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority.............................................10
SECTION 5.2. General Duties................................................10
SECTION 5.3. Action upon Instruction.......................................11
SECTION 5.4. No Duties Except as Specified in this Agreement or in
Instructions................................................11
SECTION 5.5. No Action Except under Specified Documents or Instructions....12
SECTION 5.6. Restrictions..................................................12
SECTION 5.7. Doing Business in Other Jurisdictions.........................12
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ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties...............................13
SECTION 6.2. Furnishing of Documents.......................................14
SECTION 6.3. Representations and Warranties................................14
SECTION 6.4. Reliance; Advice of Counsel...................................15
SECTION 6.5. Not Acting in Individual Capacity.............................16
SECTION 6.6. Owner Trustee May Own Notes...................................16
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses.............................16
SECTION 7.2. Indemnification...............................................16
SECTION 7.3. Payments to Owner Trustee.....................................17
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement................................17
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee....................18
SECTION 9.2. Resignation or Removal of Owner Trustee.......................18
SECTION 9.3. Successor Owner Trustee.......................................19
SECTION 9.4. Merger or Consolidation of Owner Trustee......................19
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.................20
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments...................................21
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder....22
SECTION 10.3. Limitations on Rights of Others..............................22
SECTION 10.4. Notices......................................................22
SECTION 10.5. Severability.................................................23
SECTION 10.6. Separate Counterparts........................................23
SECTION 10.7. Successors and Assigns.......................................23
SECTION 10.8. Nonpetition Covenants. .....................................23
SECTION 10.10. Headings.....................................................23
SECTION 10.11. GOVERNING LAW................................................24
SECTION 10.12. Depositor Payment Obligation.................................24
SECTION 10.13. Acceptance of Terms of Agreement.............................24
SECTION 10.14. Integration of Documents.....................................24
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EXHIBITS
Exhibit A - Form of Certificate
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TRUST AGREEMENT dated as of April 2, 2002 between CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION ("Chase USA"), a national banking
association having its principal executive offices located at ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the depositor
(in its capacity as the depositor, the "Depositor") and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as the owner trustee (the "Owner
Trustee").
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms. (a) For all purposes of
this Agreement, the following terms shall have the meanings set forth
below:
"Administrator" means Chase Manhattan Bank USA, National
Association, or any successor Administrator under the Deposit and
Administration Agreement.
"Agreement" means this Chase Credit Card Owner Trust 2002-2 Trust
Agreement, as the same may be amended, modified or otherwise supplemented
from time to time.
"Basic Documents" means the Indenture, this Agreement, the Deposit
and Administration Agreement, the Note Underwriting Agreement and other
documents delivered in connection herewith and therewith.
"Certificate" means the certificate evidencing the beneficial
interest of the Certificateholder in the Owner Trust, substantially in the
form attached hereto as Exhibit A.
"Certificateholder" means Chase Manhattan Bank USA, National
Association, and its successors and permitted assigns.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; or such other
address as the Owner Trustee may designate by notice to the Depositor, or
the principal corporate trust office of any successor Owner Trustee (the
address of which the successor Owner Trustee will notify the
Certificateholder and the Depositor).
"Deposit and Administration Agreement" means the Deposit and
Administration Agreement, dated as of April 2, 2002, between the Owner
Trustee, on behalf of the Owner Trust, and Chase Manhattan Bank USA,
National Association, as Depositor and as Administrator, as the same may be
amended, supplemented or otherwise modified from time to time.
"Depositor" means Chase Manhattan Bank USA, National Association,
in its capacity as Depositor hereunder and its successors and assigns in
such capacity.
"Expenses" has the meaning assigned to such term in Section 7.2.
"Indemnified Parties" shall have the meaning assigned to such term
in Section 7.2.
"Indenture Trustee" means The Bank of New York, not in its
individual capacity but solely as Indenture Trustee under the Indenture,
and any successor Indenture Trustee under the Indenture.
"Noteholder" has the meaning assigned to such term in the
Indenture.
"Owner Trust" means the trust created by this Agreement.
"Owner Trust Estate" means all right, title and interest of the
Owner Trustee in and to the property and rights assigned to the Owner
Trustee pursuant to Section 2.5 of this Agreement and Section 2.1 of the
Deposit and Administration Agreement, all monies, securities, instruments
and other property on deposit from time to time in the accounts established
hereunder and all other property of the Owner Trust from time to time,
including any rights of the Owner Trustee on behalf of the Owner Trust
pursuant to the Deposit and Administration Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee for
the Chase Credit Card Owner Trust 2002-2 under this Agreement (unless
otherwise specified herein), and any successor Owner Trustee hereunder.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other
organizational or governing documents of such Person, and any law, treaty,
rule or regulations, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to
which such Person is subject, whether federal, state or local (including
without limitation, usury laws, the federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the Federal
Reserve System).
"Secretary of State" means the Secretary of State of the State of
Delaware.
"SFAS 140" means Statement of Financial Accounting Standards No.
140, Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
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(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting
terms not defined in this Agreement or in any such certificate or other
document, and accounting terms partly defined in this Agreement or in any
such certificate or other document to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement;
Section and Exhibit references contained in this Agreement are references
to Sections and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without
limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The trust created hereby shall be
referred to for convenience as "Chase Credit Card Owner Trust 2002-2"
(hereinafter, the "Owner Trust"). The Owner Trust shall not be a "business
trust" as defined in 12 Del.C. 3801.
SECTION 2.2. Office. The office of the Owner Trust shall
be in care of the Owner Trustee at the Corporate Trust Office or at such
other address as the Owner Trustee may designate by written notice to the
Certificateholder and the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the
Owner Trust is, and the Owner Trustee shall have the power and authority,
on behalf of the Owner Trust to engage in the following activities:
(a) to issue the Notes in the name of the Owner Trust
pursuant to the Indenture and the Certificate pursuant to this Agreement,
and to sell, transfer or exchange the Notes and the Certificate;
(b) to acquire the property and assets set forth in the
Deposit and Administration Agreement from the Depositor pursuant to the
terms thereof, to make payments or distributions
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on the Notes and the Certificate and to make deposits to and withdrawals from
the Reserve Account and other accounts established under the Indenture;
(c) to assign, grant, transfer, pledge, mortgage and
convey the Owner Trust Estate to the Indenture Trustee pursuant to the
Indenture and to hold, manage and distribute to the Certificateholder
pursuant to the terms of the Deposit and Administration Agreement any
portion of the Owner Trust Estate released from the Lien of, and remitted
to the Owner Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to which it is a party;
(e) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith, which
activities cannot be contrary to the status of the Trust as a "qualifying
special purpose entity" under SFAS 140 and any successor rule thereto; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions to
the Certificateholder and the Noteholders, which activities cannot be
contrary to the status of the Trust as a "qualifying special purpose
entity" under SFAS 140 and any successor rule thereto.
The Owner Trustee, on behalf of the Owner Trust, is hereby authorized to
engage in the foregoing activities. Neither the Owner Trustee, nor the
Owner Trust, shall engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents. For purposes of SFAS 140, the
parties hereto intend that (a) the Trust shall be treated as a "qualifying
special purpose entity" as such term is used in SFAS 140 and any successor
rule thereto and (b) the power and authority of the Owner Trust as stated
this Section 2.3 shall be limited in accordance with paragraph 35 of SFAS
140.
SECTION 2.4. Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Owner Trust effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION 2.5. Initial Capital Contribution of Trust
Estate. The Depositor hereby sells, assigns, transfers, conveys and sets
over to the Owner Trustee, as of the date hereof, $1.00. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Owner Trust Estate. The Depositor shall pay the organizational expenses of
the Owner Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by
the Owner Trustee.
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SECTION 2.6. Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholder, subject to the obligations of the Owner Trustee, on
behalf of the Owner Trust, under the Basic Documents. It is the intention
of the parties hereto that the Owner Trust constitute a common law trust
duly formed in accordance with the laws of the State of Delaware and that
this Agreement constitutes the governing instrument of such trust. It is
the intention of the parties hereto that, solely for United States income
and franchise tax purposes, the Owner Trust shall be treated as a division
or branch of the Depositor. The parties agree that, unless otherwise
required by appropriate tax authorities, they will take no action contrary
to the foregoing intention. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein with
respect to accomplishing the purposes of the Owner Trust.
SECTION 2.7. Title to Owner Trust Property. Legal title
to all the Owner Trust Estate shall be vested at all times in the Owner
Trustee, on behalf of the Owner Trust, except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a co-trustee or a separate trustee, in which case title to such
part shall be deemed to be vested in the co-trustee and/or separate
trustee, as the case may be.
SECTION 2.8. Situs of Owner Trust. The Owner Trust will
be located and administered in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Owner Trust shall be
located in the State of Delaware or the State of New York. Payments will be
received by the Owner Trust only in Delaware or New York, and payments and
distributions will be made by the Owner Trust only from Delaware or New
York. The only office of the Owner Trust will be at the Corporate Trust
Office of the Owner Trustee in Delaware.
SECTION 2.9. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Owner
Trustee that:
(i) The Depositor has been duly organized and is
validly existing as a national banking association in good
standing under the laws of the United States of America, with
power and authority to own its properties and to conduct its
business as such properties are currently owned and such business
is presently conducted.
(ii) The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out
its terms; the Depositor has full power and authority to sell and
assign the property to be sold and assigned to and deposited with
the Owner Trustee pursuant to this Agreement and the Deposit and
Administration Agreement, on behalf of the Owner Trust, and the
Depositor has duly authorized such sale and assignment and
deposit to the Owner Trustee, on behalf of the Owner Trust, by all
necessary
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action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary
action.
(iii) The consummation of the transactions contemplated
by this Agreement and the other Basic Documents and the
fulfillment of the terms hereof, do not conflict with, result in
any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a default under, the
articles of association or bylaws of the Depositor, or conflict
with or breach any of the material terms or provisions of or
constitute (with or without notice or lapse of time) a default
under any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other
instrument; nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(iv) There are no proceedings or investigations pending
or, to the best knowledge of the Depositor, threatened against
the Depositor before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality having
jurisdiction over the Depositor (i) asserting the invalidity of
any of the Basic Documents to which the Depositor is a party, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by any of the Basic Documents, to which the Depositor
is a party, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Depositor, would materially and
adversely affect the performance by the Depositor of its
obligations under the Basic Documents to which the Depositor is a
party, or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of
the Basic Documents to which the Depositor is a party.
SECTION 2.10. Liability of Certificateholder. The
Certificateholder shall not have any personal liability for any liability
or obligation of the Owner Trustee or the Owner Trust.
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the
Owner Trust by the contribution by the Depositor pursuant to Section 2.5,
the Depositor shall be the sole beneficiary of the Owner Trust.
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SECTION 3.2. The Certificate. (a) The Certificate shall
be issued substantially in the form of Exhibit A, which is incorporated by
reference herein. The Certificate shall be executed on behalf of the Owner
Trust by manual or facsimile signature of an Authorized Officer or other
authorized signatory of the Owner Trustee. A Certificate bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Owner Trust, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificate or did not hold such offices at the date of authentication and
delivery of such Certificate. The Certificate shall not entitle its Holder
to any benefit under this Agreement, or be valid for any purpose, unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner
Trustee, or the Owner Trustee's authentication agent, by manual or
facsimile signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and
delivered hereunder. The Certificate shall be dated the date of its
authentication.
(b) The Certificateholder shall be entitled to receive
distributions from the Owner Trust Estate only in accordance with this
Agreement and the Deposit and Administration Agreement. In no event shall
the Depositor or the Certificateholder be entitled to possession of, or be
permitted to encumber any part of, the Owner Trust Estate.
SECTION 3.3. Execution, Authentication and Delivery of
Certificates. Concurrently with the initial deposit of the Series
Certificate with the Owner Trustee, on behalf of the Owner Trust, pursuant
to the Deposit and Administration Agreement, the Owner Trustee shall cause
the Certificate to be executed on behalf of the Owner Trust, authenticated
and delivered to or upon the written order of the Depositor, signed by its
chairman of the board, its president or any vice president, without further
action by the Depositor.
SECTION 3.4. Restrictions on Transfer. To the fullest
extent permitted by applicable law, the Certificate (or any interest
therein) may not be sold, transferred, assigned, participated, pledged or
otherwise disposed of by the Depositor to any Person.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificate. If (a) the mutilated Certificate shall be surrendered to the
Owner Trustee, or if the Owner Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of the Certificate and (b)
there shall be delivered to the Owner Trustee such security or indemnity as
may be required by it to save it harmless, then the Owner Trustee shall
execute and the Owner Trustee, or the Owner Trustee's authenticating agent,
shall authenticate and deliver, in exchange for or in lieu of the
mutilated, destroyed, lost or stolen Certificate, a new Certificate. In
connection with the issuance of any new Certificate under this Section 3.5,
the Owner Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the Owner Trust,
as if originally issued, whether or not the
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lost, stolen or destroyed Certificate shall be found at any time. The
provisions of this Section 3.5 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of the
mutilated, destroyed, lost or stolen Certificate.
SECTION 3.6. Authenticating Agent. (a) The Owner Trustee
may appoint one or more authenticating agents with respect to the
Certificate which shall be authorized to act on behalf of the Owner
Trustee in authenticating the Certificate in connection with the issuance,
delivery, registration of transfer, exchange or repayment of the Certificate.
Whenever reference is made in this Agreement to the authentication of the
Certificate by the Owner Trustee or the Owner Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Owner Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Owner Trustee by an authenticating
agent. Each authenticating agent shall be subject to acceptance by the
Depositor.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating
agent without the execution or filing of any paper or any further act on
the part of the Owner Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Owner Trustee and the
Depositor. The Owner Trustee may at any time terminate the agency of an
authenticating agent by giving notice of termination to such authenticating
agent and to the Depositor. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an
authenticating agent shall cease to be acceptable to the Owner Trustee or
the Depositor, the Owner Trustee promptly may appoint a successor
authenticating agent with the consent of the Depositor. Any successor
authenticating agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an authenticating
agent.
(d) The Depositor shall pay the authenticating agent from
time to time reasonable compensation for its services under this Section
3.6.
(e) The provisions of Sections 6.1, 6.3, 6.4, 6.6, 7.1
and 7.2 shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
3.6, the Certificate may have endorsed thereon, in lieu of the Owner
Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is the Certificate referred to in the within-mentioned Trust
Agreement.
or
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
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not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
for the Chase Credit Card Owner for the Chase Credit Card Owner
Trust 2002-2 Trust 2002-2
By:
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Authenticating Agent
By: By:
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Authorized Signatory Authorized Signatory
SECTION 3.7. Actions of Certificateholder. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the
Certificateholder may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by the Certificateholder
in person or by agent duly appointed in writing; and except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Owner Trustee and, when
required, to the Depositor or the Servicer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Owner
Trustee, the Depositor and the Servicer, if made in the manner provided in
this Section 3.7.
(b) The fact and date of the execution by the
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Owner Trustee deems sufficient.
(c) The Owner Trustee may require such additional proof
of any matter referred to in this Section 3.7 as it shall deem necessary.
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with
Respect to Certain Matters. With respect to the following matters, the
Owner Trustee shall not take action unless at least 30 days before the
taking of such action, the Owner Trustee shall have notified the
Certificateholder in writing of the proposed action:
(a) the initiation of any claim or lawsuit on behalf of
the Owner Trust (except claims or lawsuits brought to collect on the Series
Certificate) and the compromise of any
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material action, claim or lawsuit brought by or against the Owner Trust or the
Owner Trustee (except with respect to the aforementioned claims or lawsuits to
collect on the Series Certificate);
(b) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is
required;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest of
the Certificateholder;
(d) the amendment, change or modification of the
Deposit and Administration Agreement, except any amendment where the
consent of the Certificateholder is not required under the terms of the
Deposit and Administration Agreement; or
(e) the appointment pursuant to the Indenture of a
successor Indenture Trustee or the consent to the assignment by the Note
Registrar, the Paying Agent, the Indenture Trustee or the Certificate
Registrar of its obligations under the Indenture.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Paying Agent, Authenticating Agent or
Certificate Registrar within five Business Days thereof.
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which
the Owner Trustee, on behalf of the Owner Trust, is to be a party and each
certificate or other document required to be executed on behalf of the
Owner Trust that is attached as an exhibit to or contemplated by the Basic
Documents or any amendment thereto or other agreement, in each case, in
such form as the Depositor shall approve as evidenced conclusively by the
Owner Trustee's execution thereof and the Depositor's execution of the
related documents. In addition to the foregoing, the Owner Trustee is
authorized to take all actions required to be taken on behalf of the Owner
Trust pursuant to the Basic Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator
directs in writing with respect to the Basic Documents, except to extent
that the Basic Documents expressly require the consent of the Depositor for
such action.
SECTION 5.2. General Duties. It shall be the duty of
the Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other
Basic Documents and to administer the Owner Trust in the interest of the
Certificateholder, subject to the Basic Documents and in accordance with
the provisions of
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this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the Deposit
and Administration Agreement to perform any act or to discharge any duty of
the Owner Trustee hereunder or under any other Basic Document, and the Owner
Trustee shall not be liable for the default or failure of the Administrator to
carry out its obligations under the Deposit and Administration Agreement.
SECTION 5.3. Action upon Instruction. (a) The
Certificateholder may, by written instruction, direct the Owner Trustee in
the management of the Owner Trust. Such direction may be exercised at any
time by written instruction of the Certificateholder.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any other Basic
Document if the Owner Trustee shall reasonably determine, or shall have
been advised by counsel in writing, that such action is likely to result in
personal liability to the Owner Trustee (in such capacity or individually),
is contrary to the terms of this Agreement or any other Basic Document or
is contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by the terms of
this Agreement or any other Basic Document or is unsure as to the
application of any provision of this Agreement or any other Basic Document,
or if any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or
is silent or is incomplete as to the course of action that the Owner
Trustee is required to take with respect to a particular set of facts, the
Owner Trustee may give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholder requesting instruction as to
the course of action to be adopted, and to the extent the Owner Trustee
acts in good faith in accordance with any written instruction of the
Certificateholder received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no
duty to, take or refrain from taking such action, not inconsistent with
this Agreement or the other Basic Documents, as it shall deem to be in the
best interests of the Certificateholder, and shall have no liability to any
Person for such action or inaction.
SECTION 5.4. No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall undertake to perform
such duties and only such duties as are specifically set forth in this
Agreement and the other Basic Documents, and no implied covenants or
obligations shall be read into this Agreement or the other Basic Documents.
The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise
deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided
by the terms of this
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Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 5.3; and no implied duties or obligations shall be
read into this Agreement or any other Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any filing for the Owner Trust
with the Securities and Exchange Commission or to record this Agreement or any
other Basic Document. The Owner Trustee nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any Liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee, in its individual capacity,
that are not related to the ownership or the administration of the Owner
Trust Estate.
SECTION 5.5. No Action Except under Specified Documents
or Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred
upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with
the Basic Documents, and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not
(a) take any action that is inconsistent with the purposes of the Owner
Trust set forth in Section 2.3 or (b) take any action or amend this
Agreement in any manner that, to the actual knowledge of a Responsible
Officer of the Owner Trustee, would result in the Owner Trust becoming
taxable as a corporation for United States federal income tax purposes. The
Certificateholder shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
SECTION 5.7. Doing Business in Other Jurisdictions. (a)
Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware, other than as set forth in the last sentence
of this Section 5.7, if the taking of such action will (i) require the
consent or approval or authorization or order of or the giving of notice
to, or the registration with or the taking of any other action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State
of Delaware becoming payable by the Owner Trustee; or (iii) subject the
Owner Trustee to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Owner Trustee, as the case may be,
contemplated hereby. The Owner Trustee shall be entitled to obtain advice
of counsel (which advice shall be an expense of the Depositor) to determine
whether any action required to be taken pursuant to this Agreement results
in the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence. In the event that said counsel advises the Owner
Trustee that such action will result in such consequences, the Owner
Trustee will, at the expense
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of the Depositor, appoint an additional trustee pursuant to Section 9.5 to
proceed with such action.
ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Owner Trust Estate upon the terms
of the other Basic Documents and this Agreement. The Owner Trustee shall
not be answerable or account able hereunder or under any Basic Document
under any circumstances, except (i) for its own willful misconduct, bad
faith or gross negligence or (ii) in the case of the breach of any
representation or warranty contained in Section 6.3 expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Owner
Trustee unless it is proved that the Owner Trustee was grossly negligent in
ascertaining the pertinent facts;
(b) The Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with the
instructions of the Certificateholder given pursuant to Section 5.3;
(c) No provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in its own performance of any of
its rights or powers hereunder or under any other Basic Document if the
Owner Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Agreement
or for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of the Owner
Trust Estate or for or in respect of the validity or sufficiency of the
Basic Documents, other than the certificate of authentication on the
Certificate, shall not be accountable for the use or application by the
Depositor of the proceeds from the Certificate, and the Owner Trustee shall
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in no event assume or incur any liability, duty or obligation to any
Noteholder or to the Certificateholder, other than as expressly provided
for herein and in the other Basic Documents;
(f) The Owner Trustee shall not be liable for the
default or misconduct of the Indenture Trustee, the Administrator or the
Servicer under any of the Basic Documents or otherwise, and the Owner
Trustee shall have no obligation or liability to perform the obligations to
be performed on behalf of the Owner Trust under this Agreement or the other
Basic Documents that are required to be performed by the Administrator
under the Deposit and Administration Agreement or the Indenture Trustee
under the Indenture;
(g) The Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document, at
the request, order or direction of the Certificateholder, unless the
Certificateholder has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in
any other Basic Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable for other than its gross negligence, bad
faith or willful misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically
required to be furnished pursuant to any provision of this Agreement or the
other Basic Documents, shall examine them to determine whether they conform
to the requirements of this Agreement or such other Basic Document;
provided, however, that the Owner Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement,
opinion, report, document, order or other instrument furnished to the Owner
Trustee pursuant to this Agreement or the other Basic Documents.
SECTION 6.2. Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholder promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Basic Documents.
SECTION 6.3. Representations and Warranties. Wilmington
Trust Company, in its individual capacity, hereby represents and warrants
to the Depositor, for the benefit of the Certificateholder, that:
(a) It is a banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware
and having an office within the State of Delaware. It has all requisite
corporate power, authority and legal right to execute, deliver and perform
its obligations under this Agreement.
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(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment,
writ, decree or order applicable to it, or constitute any default under its
charter documents or by-laws or, with or without notice or lapse of time,
any indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.
(d) The execution, delivery and performance by
Wilmington Trust Company of this Agreement does not require the
authorization, consent, or approval of, the giving of notice to, the filing
or registration with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the United
States of America regulating the corporate trust activities of Wilmington
Trust Company.
(e) This Agreement has been duly authorized, executed
and delivered by Wilmington Trust Company and shall constitute the legal,
valid, and binding agreement of Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee for the Chase Credit Card
Owner Trust 2002-2, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization
and other laws affecting the rights of creditors generally, and by general
principles of equity regardless of whether enforcement is pursuant to a
proceeding in equity or at law.
SECTION 6.4. Reliance; Advice of Counsel. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that
the same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or the other Basic Documents, the Owner Trustee (i) may act
directly or through its agents or attorneys pursuant to agreements
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entered into with any of them, and the Owner Trustee shall not be liable for
the conduct or misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with due care and (ii)
may consult with counsel, accountants and other skilled persons knowledgeable
in the relevant area to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons and not contrary to this
Agreement or any other Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except
as provided in this Article VI, in accepting the trusts hereby created,
Wilmington Trust Company, not in its individual capacity but solely as
Owner Trustee for the Chase Credit Card Owner Trust 2002-2, acts solely as
the Owner Trustee hereunder and not in its individual capacity and all
Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Agreement or any other Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
SECTION 6.6. Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of the Notes and may deal with the Depositor, the Indenture Trustee
and the Servicer in banking transactions with the same rights as it would
have if it were not the Owner Trustee.
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The
Owner Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Depositor and the Owner Trustee, and the Owner Trustee shall be entitled to
be reimbursed by the Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and
its duties hereunder except any such expenses as may arise from its gross
negligence, wilful misfeasance, or bad faith or that is the responsibility
of the Certificateholder under this Agreement.
SECTION 7.2. Indemnification. The Depositor shall be
liable as primary obligor for, and shall indemnify the Owner Trustee (in
such capacity or individually) and its successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any
and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be imposed on,
incurred by, or asserted against the Owner Trustee or any Indemnified Party
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in any way relating to or arising out of this Agreement, the other Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except
only that the Depositor shall not be liable for or required to indemnify
the Owner Trustee from and against Expenses arising or resulting from any
of the matters described in the third sentence of Section 6.1. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. If
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any
Indemnified Party in respect of which indemnity may be sought pursuant to
this Section 7.2, such Indemnified Party shall promptly notify the
Depositor in writing, and the Depositor upon request of the Indemnified
Party shall retain counsel reasonably satisfactory to the Indemnified Party
(or, with the consent of the Depositor, counsel selected by the Indemnified
Party acceptable to the Depositor) to represent the Indemnified Party and
any others the Depositor may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding.
The Depositor shall not be liable for any settlement of any claim or
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Depositor
agrees to indemnify any Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. The Depositor shall
not, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
SECTION 7.3. Payments to Owner Trustee. Any amounts paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to be
a part of the Owner Trust Estate immediately after such payment.
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement. (a) The
Owner Trust shall terminate upon the final distribution by the Owner
Trustee of all moneys or other property or proceeds of the Owner Trust
Estate in accordance with the terms of the Indenture and the Deposit and
Administration Agreement; provided, that in no event will the Owner Trust
continue more than 21 years after the date hereof. Any money or other
property held as part of the Owner Trust Estate following such distribution
shall be distributed to the Certificateholder. The bankruptcy, death,
incapacity, liquidation, dissolution or termination of the Depositor or
Certificateholder (or any other beneficiary) shall not (x) operate to
revoke or terminate this Agreement or the Owner Trust, or (y) entitle the
Certificateholder's (or any other beneficiary) legal representatives to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all
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or any part of the Owner Trust or Owner Trustee Estate or (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a) or 8.1(c),
neither the Depositor nor the Certificateholder shall be entitled to revoke
or terminate the Owner Trust.
(c) Except as provided in this Section 8.1(c), neither
the Depositor nor the Certificateholder shall be entitled to revoke or
terminate the Owner Trust or this Agreement. The Depositor and the Owner
Trustee acknowledge that the Indenture Trustee, on behalf of the
Noteholders, is a third-party beneficiary of this Agreement and shall be
entitled to enforce the terms of this Agreement to the same extent as if
they were signatories hereto. For so long as the Notes are outstanding,
neither the Owner Trust nor this Agreement shall be revoked without the
prior written consent of the Indenture Trustee. The Depositor and the Owner
Trustee acknowledge that the Indenture Trustee, as an agent of the
Noteholders, maintains a legitimate interest in ensuring the Owner
Trust is not revoked prior to the fulfillment of the Owner Trust
objectives. In no event may this Agreement be amended without the prior
written consent of the Indenture Trustee if the effect of such amendment is
the revocation or termination of this Owner Trust other than in accordance
with this Section 8.1.
ArTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner
Trustee. The Owner Trustee shall at all times be a corporation authorized
to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by
federal or state authorities; and having (or having a parent) which has a
rating of at least Baa3 by ▇▇▇▇▇'▇, at least BBB- by Standard & Poor's and,
if rated by Fitch, at least BBB- by Fitch, or if not rated, otherwise
satisfactory to each Note Rating Agency. If such corporation shall publish
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly
appoint successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning
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Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 9.1 and shall fail to
resign after written request therefor by the Administrator, or if at any
time the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Administrator may
remove the Owner Trustee. If the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered
to the outgoing Owner Trustee so removed and one copy of which shall be
delivered to the successor Owner Trustee, and payment of all fees owed to
the outgoing Owner Trustee shall be made to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions
of this Section shall not become effective until acceptance of appointment
by the successor Owner Trustee pursuant to Section 9.3 and payment of all
fees and expenses owed to the outgoing Owner Trustee. The Administrator
shall provide notice of such resignation or removal of the Owner Trustee to
each of the Note Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor
Owner Trustee appointed pursuant to Section 9.2 shall execute, acknowledge
and deliver to the Administrator and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon
the resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as the Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the
successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things
as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties
and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such
successor Owner Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail notice of
the successor of such Owner Trustee to the Certificateholder, the Indenture
Trustee, the Noteholders and the Note Rating Agencies. If the
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Administrator shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 9.4. Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall be the successor of
the Owner Trustee hereunder, provided such corporation shall be eligible
pursuant to Section 9.1, without the execution or filing of any instrument
or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided further that the Owner
Trustee shall mail notice of such merger or consolidation to the Note
Rating Agencies.
SECTION 9.5. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Owner Trust Estate may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint at the expense of the
Depositor one or more Persons approved by the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Owner Trust, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall
be required to meet the terms of eligibility as a successor trustee
pursuant to Section 9.1 and no notice of the appointment of any co-trustee
or separate trustee shall be required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations
(including the holding of title to the Owner Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co- trustee, but solely at the
direction of the Owner Trustee;
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(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any other
trustee under this Agreement; and
(iii) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice
to the Note Rating Agencies, without the consent of the Indenture Trustee,
any of the Noteholders or the Certificateholder, to cure any ambiguity or
defect, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholder; provided,
however, that such amendment will not (i) as evidenced by an Officer's
Certificate of the Depositor addressed and delivered to the Owner Trustee
and the Indenture Trustee, materially and adversely affect the interest of
any Noteholder or the Owner Trust or significantly change any of the
Trust's permitted activities as described in Section 2.3 and (ii) as
evidenced by an Opinion of Counsel addressed and delivered to the Owner
Trustee and the Indenture Trustee, cause the Owner Trust to be classified
as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes; provided
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further, that the Depositor shall deliver written notice of such amendments to
each Note Rating Agency prior to the execution of any such amendment.
This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Note
Rating Agencies, with the prior written consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any
manner the rights of the Noteholders or the Certificateholder; provided
that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments in
respect of the Series Certificate or distributions that shall be required
to be made for the benefit of the Noteholders or the Certificateholder, or
(b) reduce the aforesaid percentage of the Outstanding Amount of the Notes,
the Holders of which are required to consent to any such amendment.
Promptly after the execution of any amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Indenture Trustee and
each of the Note Rating Agencies.
It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any
specific property in the Owner Trust Estate. No transfer, by operation of
law or otherwise, of any right, title or interest of the Certificateholder
to and in its ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee
to an accounting or to the transfer to it of legal title to any specific
property in the Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Owner Trustee, the
Depositor, the Certificateholder and, to the extent expressly provided
herein, the Indenture Trustee, the Administrator and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim
in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
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SECTION 10.4. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested and shall be
deemed to have been duly given upon receipt, if to the Owner Trustee,
addressed to Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Corporate Trust
Administration, if to the Depositor, addressed to, Chase Manhattan Bank
USA, National Association, Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or, as to each party,
at such other address as shall be designated by such party in a written
notice to each other party.
SECTION 10.5. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and the Certificateholder
and its successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action
by the Certificateholder shall bind the successors and assigns of the
Certificateholder.
SECTION 10.8. Nonpetition Covenants. Notwithstanding any prior
termination of the Owner Trust or this Agreement, each of the Owner Trustee
(not in its individual capacity) and the Certificateholder, by its
acceptance of the Certificate, covenants and agrees that it shall not at
any time with respect to the Owner Trust or the Master Trust, acquiesce,
petition or otherwise invoke or cause the Owner Trust or the Master Trust
to invoke the process of any court or government authority for the purpose
of commencing or sustaining a case against the Owner Trust or the Master
Trust under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Owner Trust or the
Master Trust or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Owner Trust or the Master
Trust; provided, however, that this Section 10.8 shall not operate to
preclude any remedy described in Article V of the Indenture.
SECTION 10.9. No Recourse. The Certificateholder by accepting the
Certificate acknowledges that the Certificate does not represent an
interest in or obligation of the Depositor, the Administrator, the Owner
Trustee (in its individual capacity), the Indenture
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Trustee or any Affiliate thereof, and no recourse may be had against such
parties or their assets, or against the assets pledged under the Indenture.
SECTION 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.12. Depositor Payment Obligation. The Depositor shall
be responsible for payment of the Administrator's fees under the Deposit
and Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder.
SECTION 10.13. Acceptance of Terms of Agreement. THE RECEIPT AND
ACCEPTANCE OF THE CERTIFICATE BY THE CERTIFICATEHOLDER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE CERTIFICATEHOLDER OF ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE
OWNER TRUSTEE, ON BEHALF OF THE OWNER TRUST, THAT THE TERMS AND PROVISIONS
OF THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
OWNER TRUSTEE AND THE CERTIFICATEHOLDER.
SECTION 10.14. Integration of Documents. This Agreement, together
with the Deposit and Administration Agreement, constitutes the entire
agreement of the parties hereto and thereto with respect to the subject
matter hereof and thereof and supercedes all prior agreements relating to
the subject matter hereof and thereof.
[Signature Page to Follow]
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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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President