EXHIBIT 4.3(C)(1)
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CHASE MANHATTAN AUTO OWNER TRUST 1998-A
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of February 1, 1998
TABLE OF CONTENTS
Page
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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................................................................................... 8
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 February 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 February 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-A" (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:
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(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 2.12 of this Agreement and for
purposes of maintaining Capital Accounts under Section 5.7 of this Agreement
as follows:
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(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 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 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. This Section 2.13 is
6
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
January 16, 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 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.
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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 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.
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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 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)
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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 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
10
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 instructions 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
11
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 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
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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.
(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:
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This is one of the Certificates referred to in the within
mentioned Agreement.
,
-----------------------------
as Owner Trustee
By:
-----------------------------
Authorized Officer
or
as Authenticating Agent
-----------------------------
for the Owner Trustee,
-----------------------------
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 $238,000,000.00, Class
A-2 Notes in the aggregate principal amount of $204,000,000.00, Class A-3
Notes in the aggregate principal amount of $294,000,000.00 and Class A-4 Notes
in the aggregate principal amount of $246,000,000.00. 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
22
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.
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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: Assistant 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-A
6.000% 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-A (the "Issuer") formed by Chase Manhattan Bank USA, National
Association, a national banking association (the "Depositor"). This
Certificate has a Certificate Rate of 6.000% 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 but or not in its individual capacity but
solely as Owner Trustee solely as Owner Trustee
By:_____________________ By:__________________________
Authenticating Agent
4
Issuer was created pursuant to a Trust Agreement dated as of February
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 February 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 "6.000% Asset Backed Certificates" (herein called the
"Certificates"). Issued under the Indenture dated as of February 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
5.549% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 5.679% Asset
Backed Notes" (the "Class A-2 Notes"), "Class A-3 5.700% 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-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
Dated: By:
-------------------------------
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