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CHASE CREDIT CARD OWNER TRUST 1999-_
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
as Owner Trustee
Dated as of _____, 1999
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms......................................1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name...................................................3
SECTION 2.2. Office.................................................3
SECTION 2.3. Purposes and Powers....................................3
SECTION 2.4. Appointment of Owner Trustee...........................4
SECTION 2.5. Initial Capital Contribution of Trust Estate...........4
SECTION 2.6. Declaration of Trust...................................4
SECTION 2.7. Title to Owner Trust Property..........................5
SECTION 2.8. Situs of Owner Trust...................................5
SECTION 2.9. Representations and Warranties of the Depositor........5
SECTION 2.10. Liability of Certificateholder........................6
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership......................................6
SECTION 3.2. The Certificate........................................6
SECTION 3.3. Execution, Authentication and Delivery of
Certificates...........................................7
SECTION 3.4. Restrictions on Transfer...............................7
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate.......7
SECTION 3.6. Authenticating Agent...................................7
SECTION 3.7. Actions of Certificateholder...........................8
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect
to Certain Matters.....................................9
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority.....................................10
SECTION 5.2. General Duties........................................10
SECTION 5.3. Action upon Instruction...............................10
SECTION 5.4. No Duties Except as Specified in this Agreement
or in Instructions....................................11
SECTION 5.5. No Action Except under Specified Documents
or Instructions.......................................11
SECTION 5.6. Restrictions..........................................12
SECTION 5.7. Doing Business in Other Jurisdictions.................12
ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties.......................12
SECTION 6.2. Furnishing of Documents...............................14
SECTION 6.3. Representations and Warranties........................14
SECTION 6.4. Reliance; Advice of Counsel...........................15
SECTION 6.5. Not Acting in Individual Capacity.....................15
SECTION 6.6. Owner Trustee May Own Notes...........................15
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses.....................16
SECTION 7.2. Indemnification.......................................16
SECTION 7.3. Payments to Owner Trustee.............................17
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement........................17
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee............18
SECTION 9.2. Resignation or Removal of Owner Trustee...............18
SECTION 9.3. Successor Owner Trustee...............................19
SECTION 9.4. Merger or Consolidation of Owner Trustee..............19
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.........19
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments...........................21
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder....................................22
SECTION 10.3. Limitations on Rights of Others......................22
SECTION 10.4. Notices..............................................22
SECTION 10.5. Severability.........................................22
SECTION 10.6. Separate Counterparts................................22
SECTION 10.7. Successors and Assigns...............................23
SECTION 10.8. Nonpetition Covenants. .............................23
SECTION 10.10. Headings............................................23
SECTION 10.11. GOVERNING LAW.......................................23
SECTION 10.12. Depositor Payment Obligation........................23
SECTION 10.13. Acceptance of Terms of Agreement....................23
SECTION 10.14. Integration of Documents............................24
EXHIBITS
Exhibit A - Form of Certificate
TRUST AGREEMENT dated as of ____, 1999 between CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION ("Chase USA"), a national banking association
having its principal executive offices located at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, as the depositor (in its capacity as the
depositor, the "Depositor") and _________________, a Delaware banking
corporation, as the owner trustee (the "Owner Trustee").
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms. (a) For all purposes of
this Agreement, the following terms shall have the meanings set forth
below:
"Administrator" means Chase Manhattan Bank USA, National
Association, or any successor Administrator under the Deposit and
Administration Agreement.
"Agreement" means this Chase Credit Card Owner Trust 1999-__ Trust
Agreement, as the same may be amended, modified or otherwise supplemented
from time to time.
"Basic Documents" means the Indenture, this Agreement, the Deposit
and Administration Agreement, the Note Underwriting Agreement and other
documents delivered in connection herewith and therewith.
"Certificate" means the certificate evidencing the beneficial
interest of the Certificateholder in the Owner Trust, substantially in the
form attached hereto as Exhibit A.
"Certificateholder" means Chase Manhattan Bank USA, National
Association, and its successors and permitted assigns.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at
__________________________________; or such other address as the Owner
Trustee may designate by notice to the Transferor, or the principal
corporate trust office of any successor Owner Trustee (the address of which
the successor Owner Trustee will notify the Owner and the Transferor).
"Deposit and Administration Agreement" means the Deposit and
Administration Agreement, dated as of __________, 1999, between the Owner
Trustee, on behalf of the Owner Trust, and Chase Manhattan Bank USA,
National Association, as Depositor and as Administrator, as the same may be
amended, supplemented or otherwise modified from time to time.
"Depositor" means Chase Manhattan Bank USA, National Association,
in its capacity as Depositor hereunder and its successors and assigns in
such capacity.
"Expenses" has the meaning assigned to such term in Section 7.2.
"Indemnified Parties" shall have the meaning assigned to such term
in Section 7.2.
"Indenture Trustee" means The Bank of New York, not in its
individual capacity but solely as Indenture Trustee under the Indenture,
and any successor Indenture Trustee under the Indenture.
"Owner Trust" means the trust created by this Agreement.
"Owner Trust Estate" means all right, title and interest of the
Owner Trust in and to the property and rights assigned to the Owner Trustee
pursuant to Section 2.5 of this Agreement and Section 2.1 of the Deposit
and Administration Agreement, all monies, securities, instruments and other
property on deposit from time to time in the accounts established hereunder
and all other property of the Owner Trust from time to time, including any
rights of the Owner Trustee on behalf of the Owner Trust pursuant to the
Deposit and Administration Agreement.
"Owner Trustee" means , a Delaware banking corporation, not in its
individual capacity but solely as owner trustee under this Agreement
(unless otherwise specified herein), and any successor Owner Trustee
hereunder.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other
organizational or governing documents of such Person, and any law, treaty,
rule or regulations, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to
which such Person is subject, whether federal, state or local (including
without limitation, usury laws, the federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the Federal
Reserve System).
"Secretary of State" means the Secretary of State of the State of
Delaware.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting
terms not defined in this Agreement or in any such certificate or other
document, and accounting terms partly defined in this Agreement or in any
such certificate or other document to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and words
of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement; Section
and Exhibit references contained in this Agreement are references to
Sections and Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The trust created hereby shall be known
as "Chase Credit Card Owner Trust 1999-_" (hereinafter, the "Owner Trust").
SECTION 2.2. Office. The office of the Owner Trust shall
be in care of the Owner Trustee at the Corporate Trust Office or at such
other address as the Owner Trustee may designate by written notice to the
Certificateholder and the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Owner
Trust is, and the Owner Trustee shall have the power and authority, on
behalf of the Owner Trust to engage in the following activities:
(a) to issue the Notes in the name of the Owner Trust
pursuant to the Indenture and the Certificate pursuant to this Agreement,
and to sell, transfer or exchange the Notes and the Certificate;
(b) to acquire the property and assets set forth in the
Deposit and Administration Agreement from the Depositor pursuant to the
terms thereof, to make payments or distributions on the Notes and the
Certificate, to make deposits to and withdrawals from the Reserve Account
and other accounts established under the Indenture;
(c) to assign, grant, transfer, pledge, mortgage and
convey the Owner Trust Estate pursuant to the Indenture and to hold, manage
and distribute to the Certificateholder pursuant to the terms of the
Deposit and Administration Agreement any portion of the Owner Trust Estate
released from the Lien of, and remitted to the Owner Trust pursuant to, the
Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions to
the Certificateholder and the Noteholders.
The Owner Trustee, on behalf of the Owner Trust, is hereby authorized to
engage in the foregoing activities. Neither the Owner Trustee, nor the
Owner Trust, shall engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Owner Trust effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate.
The Depositor hereby sells, assigns, transfers, conveys and sets over to
the Owner Trustee, as of the date hereof, $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate. The Depositor shall pay the organizational expenses of the Owner
Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
SECTION 2.6. Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholder, subject to the obligations of the Owner Trustee, on
behalf of the Owner Trust, under the Basic Documents. It is the intention
of the parties hereto that the Owner Trust constitute a common law business
trust duly formed in accordance with the laws of the State of Delaware
and that this Agreement constitutes the governing instrument of such trust.
It is the intention of the parties hereto that, solely for United States
income and franchise tax purposes, the Owner Trust shall be treated as a
division or branch of the Depositor. The parties agree that, unless
otherwise required by appropriate tax authorities, they will take no action
contrary to the foregoing intention. Effective as of the date hereof, the
Owner Trustee shall have all rights, powers and duties set forth herein
with respect to accomplishing the purposes of the Owner Trust.
SECTION 2.7. Title to Owner Trust Property. Legal title to
all the Owner Trust Estate shall be vested at all times in the Owner
Trustee, on behalf of the Owner Trust, except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a co-trustee or a separate trustee, in which case title to such
part shall be deemed to be vested in the co-trustee and/or separate
trustee, as the case may be.
SECTION 2.8. Situs of Owner Trust. The Owner Trust will be
located and administered in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Owner Trust shall be
located in the State of Delaware or the State of New York. Payments will be
received by the Owner Trust only in Delaware or New York, and payments and
distributions will be made by the Owner Trust only from Delaware or New
York. The only office of the Owner Trust will be at the Corporate Trust
Office of the Owner Trustee in Delaware.
SECTION 2.9. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Owner
Trustee that:
(i) The Depositor has been duly organized and is validly
existing as a national banking association in good standing under
the laws of the United States of America, with power and authority
to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted.
(ii) The Depositor has the corporate power and authority
to execute and deliver this Agreement and to carry out its terms;
the Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Owner
Trustee, on behalf of the Owner Trust, and the Depositor has duly
authorized such sale and assignment and deposit to the Owner
Trustee, on behalf of the Owner Trust, by all necessary action; and
the execution, delivery and performance of this Agreement has been
duly authorized by the Depositor by all necessary action.
(iii) The consummation of the transactions contemplated by
this Agreement and the other Basic Documents and the fulfillment of
the terms hereof, do not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of
association or bylaws of the Depositor, or conflict with or breach
any of the material terms or provisions of or constitute (with or
without notice or lapse of time) a default under any indenture,
agreement or other instrument to which the Depositor is a party or
by which it is bound; nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument; nor violate any law
or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any
Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor
or its properties.
(iv) There are no proceedings or investigations pending
or, to the best knowledge of the Depositor, threatened against the
Depositor before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality having
jurisdiction over the Depositor (i) asserting the invalidity of any
of the Basic Documents to which the Depositor is a party, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by any of the Basic Documents, to which the Depositor
is a party, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Depositor, would materially and
adversely affect the performance by the Depositor of its
obligations under the Basic Documents to which the Depositor is a
party, or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of
the Basic Documents to which the Depositor is a party.
SECTION 2.10. Liability of Certificateholder. The
Certificateholder shall not have any personal liability for any liability
or obligation of the Owner Trustee or the Owner Trust.
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the
Owner Trust by the contribution by the Depositor pursuant to Section 2.5,
the Depositor shall be the sole beneficiary of the Owner Trust.
SECTION 3.2. The Certificate. The Certificate shall be
issued substantially in the form of Exhibit A, which is incorporated by
reference. The Certificate shall be executed on behalf of the Owner Trust
by manual or facsimile signature of an Authorized Officer or other
authorized signatory of the Owner Trustee. A Certificate bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Owner Trust, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificate or did not hold such offices at the date of authentication and
delivery of such Certificate. The Certificate shall not entitle its Holder
to any benefit under this Agreement, or be valid for any purpose, unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner
Trustee or Chase, as the Owner Trustee's authentication agent, by manual or
facsimile signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and
delivered hereunder. The Certificate shall be dated the date of its
authentication.
SECTION 3.3. Execution, Authentication and Delivery of
Certificates. Concurrently with the initial deposit of the Series
Certificate with the Owner Trustee, on behalf of the Owner Trust, pursuant
to the Deposit and Administration Agreement, the Owner Trustee shall cause
the Certificate to be executed on behalf of the Owner Trust, authenticated
and delivered to or upon the written order of the Depositor, signed by its
chairman of the board, its president or any vice president, without further
action by the Depositor.
SECTION 3.4. Restrictions on Transfer. To the fullest
extent permitted by applicable law, the Certificate (or any interest
therein) may not be sold, transferred, assigned, participated, pledged or
otherwise disposed of by the Depositor to any Person.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificate. If (a) the mutilated Certificate shall be surrendered to the
Owner Trustee, or if the Owner Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of the Certificate and (b)
there shall be delivered to the Owner Trustee such security or indemnity as
may be required by it to save it harmless, then the Owner Trustee shall
execute and the Owner Trustee, or Chase, as the Owner Trustee's
authenticating agent, shall authenticate and deliver, in exchange for or in
lieu of the mutilated, destroyed, lost or stolen Certificate, a new
Certificate. In connection with the issuance of any new Certificate under
this Section 3.5, the Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of an ownership
interest in the Owner Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time. The
provisions of this Section 3.5 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the
replacement of the mutilated, destroyed, lost or stolen Certificate.
SECTION 3.6. Authenticating Agent. (a) The Owner Trustee
may appoint one or more authenticating agents with respect to the
Certificate which shall be authorized to act on behalf of the Owner Trustee
in authenticating the Certificate in connection with the issuance,
delivery, registration of transfer, exchange or repayment of the
Certificate. The Owner Trustee hereby appoints Chase as Authenticating
Agent for the authentication of the Certificate upon any registration of
transfer or exchange of the Certificate. Whenever reference is made in this
Agreement to the authentication of the Certificate by the Owner Trustee or
the Owner Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Owner Trustee by an
authenticating agent and a certificate of authentication executed on behalf
of the Owner Trustee by an authenticating agent. Each authenticating agent
(other than Chase) shall be subject to acceptance by the Depositor.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating
agent without the execution or filing of any paper or any further act on
the part of the Owner Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Owner Trustee and the
Depositor. The Owner Trustee may at any time terminate the agency of an
authenticating agent by giving notice of termination to such authenticating
agent and to the Depositor. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an authenticating agent
shall cease to be acceptable to the Owner Trustee or the Depositor, the
Owner Trustee promptly may appoint a successor authenticating agent with
the consent of the Depositor. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an authenticating agent.
(d) The Depositor shall pay the authenticating agent from
time to time reasonable compensation for its services under this Section
3.6.
(e) The provisions of Sections 6.1, 6.3, 6.4, 6.6, 7.1 and
7.2 shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
3.6, the Certificate may have endorsed thereon, in lieu of the Owner
Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is the Certificate referred to in the within-mentioned Trust
Agreement.
or
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By:____________________________
Authenticating Agent
By: ______________________________ By:___________________________
Authorized Signatory Authorized Signatory
SECTION 3.7. Actions of Certificateholder. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the
Certificateholder may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by the Certificateholder
in person or by agent duly appointed in writing; and except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Owner Trustee and, when
required, to the Depositor or the Servicer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Owner
Trustee, the Depositor and the Servicer, if made in the manner provided in
this Section 3.7.
(b) The fact and date of the execution by the
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Owner Trustee deems sufficient.
(c) The Owner Trustee may require such additional proof of
any matter referred to in this Section 3.7 as it shall deem necessary.
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with
Respect to Certain Matters. With respect to the following matters, the
Owner Trustee shall not take action unless at least 30 days before the
taking of such action, the Owner Trustee shall have notified the
Certificateholder in writing of the proposed action:
(a) the initiation of any claim or lawsuit on behalf of
the Owner Trust (except claims or lawsuits brought to collect on the Series
Certificate) and the compromise of any material action, claim or lawsuit
brought by or against the Owner Trust or the Owner Trustee (except with
respect to the aforementioned claims or lawsuits to collect on the Series
Certificate);
(b) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest of
the Certificateholder;
(d) the amendment, change or modification of the Deposit
and Administration Agreement, except any amendment where the consent of the
Certificateholder is not required under the terms of the Deposit and
Administration Agreement; or
(e) the appointment pursuant to the Indenture of a
successor Indenture Trustee or the consent to the assignment by the Note
Registrar, the Paying Agent, the Trustee or the Certificate Registrar of
its obligations under the Indenture.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Paying Agent, Authenticating Agent or
Certificate Registrar within five Business Days thereof.
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which
the Owner Trustee, on behalf of the Owner Trust, is to be a party and each
certificate or other document required to be executed on behalf of the
Owner Trust that is attached as an exhibit to or contemplated by the Basic
Documents or any amendment thereto or other agreement, in each case, in
such form as the Depositor shall approve as evidenced conclusively by the
Owner Trustee's execution thereof and the Depositor's execution of the
related documents. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required to be
taken on behalf of the Owner Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action
as the Administrator directs in writing with respect to the Basic
Documents, except to extent that the Basic Documents expressly require the
consent of the Depositor for such action.
SECTION 5.2. General Duties. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other
Basic Documents and to administer the Owner Trust in the interest of the
Certificateholder, subject to the Basic Documents and in accordance with
the provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Administrator has
agreed in the Deposit and Administration Agreement to perform any act or to
discharge any duty of the Owner Trustee hereunder or under any other Basic
Document, and the Owner Trustee shall not be liable for the default or
failure of the Administrator to carry out its obligations under the Deposit
and Administration Agreement.
SECTION 5.3. Action upon Instruction. (a) The
Certificateholder may, by written instruction, direct the Owner Trustee in
the management of the Owner Trust. Such direction may be exercised at any
time by written instruction of the Certificateholder.
(b) Notwithstanding the foregoing, the Owner Trustee shall
not be required to take any action hereunder or under any other Basic
Document if the Owner Trustee shall reasonably determine, or shall have
been advised by counsel in writing, that such action is likely to result in
personal liability to the Owner Trustee (in such capacity or individually),
is contrary to the terms of this Agreement or any other Basic Document or
is contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Basic Document or is unsure as to the application of
any provision of this Agreement or any Basic Document, or if any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to
the Certificateholder requesting instruction as to the course of action to
be adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of the Certificateholder received,
the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this Agreement or
the other Basic Documents, as it shall deem to be in the best interests of
the Certificateholder, and shall have no liability to any Person for such
action or inaction.
SECTION 5.4. No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall undertake to perform
such duties and only such duties as are specifically set forth in this
Agreement and the other Basic Documents, and no implied covenants or
obligations shall be read into this Agreement or the other Basic Documents.
The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise
deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee is a party, except as expressly provided
by the terms of this Agreement or in any document or written instruction
received by the Owner Trustee pursuant to Section 5.3; and no implied
duties or obligations shall be read into this Agreement or any Basic
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any filing for the Owner Trust with the Securities and
Exchange Commission or to record this Agreement or any other Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge
any Liens on any part of the Owner Trust Estate that result from actions
by, or claims against, the Owner Trustee, in its individual capacity, that
are not related to the ownership or the administration of the Owner Trust
Estate.
SECTION 5.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred
upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with
the Basic Documents, and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not (a)
take any action that is inconsistent with the purposes of the Owner Trust
set forth in Section 2.3 or (b) take any action or amend this Agreement in
any manner that, to the best knowledge of a Responsible Officer of the
Owner Trustee, would result in the Owner Trust becoming taxable as a
corporation for United States federal income tax purposes. The
Certificateholder shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
SECTION 5.7. Doing Business in Other Jurisdictions. (a)
Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware, other than as set forth in the last sentence
of this Section 5.7, if the taking of such action will (i) require the
consent or approval or authorization or order of or the giving of notice
to, or the registration with or the taking of any other action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State
of Delaware becoming payable by the Owner Trustee; or (iii) subject the
Owner Trustee to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Owner Trustee, as the case may be,
contemplated hereby. The Owner Trustee shall be entitled to obtain advice
of counsel (which advice shall be an expense of the Depositor) to determine
whether any action required to be taken pursuant to this Agreement results
in the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence. In the event that said counsel advises the Owner
Trustee that such action will result in such consequences, the Owner
Trustee will, at the expense of the Depositor, appoint an additional
trustee pursuant to Section 9.5 to proceed with such action.
ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Owner Trust Estate upon the terms
of the other Basic Documents and this Agreement. The Owner Trustee shall
not be answerable or accountable hereunder or under any Basic Document
under any circumstances, except (i) for its own willful misconduct, bad
faith or negligence or (ii) in the case of the breach of any representation
or warranty contained in Section 6.3 expressly made by the Owner Trustee.
In particular, but not by way of limitation (and subject to the exceptions
set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee
unless it is proved that the Owner Trustee was negligent in ascertaining
the pertinent facts;
(b) The Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with the
instructions of the Certificateholder given pursuant to Section 5.3;
(c) No provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in its own performance of any of
its rights or powers hereunder or under any other Basic Document if the
Owner Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Agreement or
for the due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust
Estate or for or in respect of the validity or sufficiency of the Basic
Documents, other than the certificate of authentication on the Certificate,
shall not be accountable for the use or application by the Depositor of the
proceeds from the Certificate, and the Owner Trustee shall in no event
assume or incur any liability, duty or obligation to any Noteholder or to
the Certificateholder, other than as expressly provided for herein and in
the Basic Documents.
(f) The Owner Trustee shall not be liable for the default
or misconduct of the Indenture Trustee, the Administrator or the Servicer
under any of the Basic Documents or otherwise, and the Owner Trustee shall
have no obligation or liability to perform the obligations to be performed
on behalf of the Owner Trust under this Agreement or the Basic Documents
that are required to be performed by the Administrator under the Deposit
and Administration Agreement or the Indenture Trustee under the Indenture;
(g) The Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document, at
the request, order or direction of the Certificateholder, unless the
Certificateholder has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in
any other Basic Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable for other than its negligence, bad faith or
willful misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically
required to be furnished pursuant to any provision of this Agreement or the
other Basic Documents, shall examine them to determine whether they conform
to the requirements of this Agreement or such other Basic Document;
provided, however, that the Owner Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement,
opinion, report, document, order or other instrument furnished to the Owner
Trustee pursuant to this Agreement or the other Basic Documents.
SECTION 6.2. Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholder promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Basic Documents.
SECTION 6.3. Representations and Warranties. [ ] hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholder, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power, authority and legal right to execute, deliver and perform
its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment,
writ, decree or order applicable to it, or constitute any default under its
charter documents or by-laws or, with or without notice or lapse of time,
any indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.
(d) The execution, delivery and performance by [ ] 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 [ ].
(e) This Agreement has been duly authorized, executed and
delivered by [ ] and shall constitute the legal, valid, and binding
agreement of [ ], enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization and
other laws affecting the rights of creditors generally, and by general
principles of equity regardless of whether enforcement is pursuant to a
proceeding in equity or at law.
SECTION 6.4. Reliance; Advice of Counsel. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that
the same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance
thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or the Basic Documents, the Owner Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with
any of them, and the Owner Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or attorneys shall
have been selected by the Owner Trustee with due care and (ii) may consult
with counsel, accountants and other skilled persons knowledgeable in the
relevant area to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons and not contrary to this
Agreement or any Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as
provided in this Article VI, in accepting the trusts hereby created, [ ]
acts solely as the Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by
reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
SECTION 6.6. Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of the Notes and may deal with the Depositor, the Indenture Trustee
and the Servicer in banking transactions with the same rights as it would
have if it were not the Owner Trustee.
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees
as have been separately agreed upon before the date hereof between the
Depositor and the Owner Trustee, and the Owner Trustee shall be entitled to
be reimbursed by the Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and
its duties hereunder except any such expenses as may arise from its
negligence, wilful misfeasance, or bad faith or that is the responsibility
of the Certificateholder under this Agreement.
SECTION 7.2. Indemnification. The Depositor shall be
liable as primary obligor for, and shall indemnify the Owner Trustee (in
such capacity or individually) and its successors, assigns, agents and
servants (collectively, the "Indemnified Parties") from and against, any
and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be imposed on,
incurred by, or asserted against the Owner Trustee or any Indemnified Party
in any way relating to or arising out of this Agreement, the other Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except
only that the Depositor shall not be liable for or required to indemnify
the Owner Trustee from and against Expenses arising or resulting from any
of the matters described in the third sentence of Section 6.1. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. If
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any
Indemnified Party in respect of which indemnity may be sought pursuant to
this Section 7.2, such Indemnified Party shall promptly notify the
Depositor in writing, and the Depositor upon request of the Indemnified
Party shall retain counsel reasonably satisfactory to the Indemnified Party
(or, with the consent of the Depositor, counsel selected by the Indemnified
Party acceptable to the Depositor) to represent the Indemnified Party and
any others the Depositor may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding.
The Depositor shall not be liable for any settlement of any claim or
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Depositor
agrees to indemnify any Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. The Depositor shall
not, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
SECTION 7.3. Payments to Owner Trustee. Any amounts paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to be
a part of the Owner Trust Estate immediately after such payment.
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement. (a) The Owner
Trust shall terminate upon the final distribution by the Owner Trustee of
all moneys or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture and the Deposit and
Administration Agreement; provided, that in no event will the Owner Trust
continue more than 21 years after the date hereof. Any money or other
property held as part of the Owner Trust Estate following such distribution
shall be distributed to the Depositor. The bankruptcy, death, incapacity,
liquidation, dissolution or termination of the Certificateholder (or any
other beneficiary) shall not (x) operate to terminate this Agreement or the
Owner Trust, or (y) entitle the Certificateholder's (or any other
beneficiary) legal representatives to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of all or
any part of the Owner Trust or Owner Trustee Estate or (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a), neither the
Depositor nor the Owner shall be entitled to revoke or terminate the Owner
Trust.
(c) This Agreement shall be irrevocable. Except as
provided in this Section 8.1(c), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Owner Trust
or this Agreement. The Depositor and the Owner Trustee acknowledge that the
Indenture Trustee, on behalf of the Noteholders, is a third-party
beneficiary of this Agreement and shall be entitled to enforce the terms of
this agreement to the same extent as if they were signataries hereto. For
so long as the Notes are outstanding, neither the Owner Trust nor this
Agreement shall be revoked without the prior written consent of the
Indenture Trustee. The Depositor and the Owner Trustee acknowledge that the
Indenture Trustee, as an agent of the Noteholders, maintains a legitimate
interest in ensuring that the Owner Trust is not revoked prior to the
fulfillment of the Owner Trust objectives. In no event may this Agreement
be amended without the prior written consent of the Indenture Trustee if
the effect of such amendment is the revocation or termination of this Owner
Trust other than in accordance with this Section 8.1.
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation authorized to
exercise corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal
or state authorities; and having (or having a parent) which has a rating of
at least Baa3 by Xxxxx'x, at least BBB- by Standard & Poor's and, if rated
by Fitch, at least BBB- by Fitch, or if not rated, otherwise satisfactory
to each Note Rating Agency. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner
Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 9.1 and shall fail to
resign after written request therefor by the Administrator, or if at any
time the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Administrator may
remove the Owner Trustee. If the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered
to the outgoing Owner Trustee so removed and one copy of which shall be
delivered to the successor Owner Trustee, and payment of all fees owed to
the outgoing Owner Trustee shall be made to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions
of this Section shall not become effective until acceptance of appointment
by the successor Owner Trustee pursuant to Section 9.3 and payment of all
fees and expenses owed to the outgoing Owner Trustee. The Administrator
shall provide notice of such resignation or removal of the Owner Trustee to
each of the Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 9.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon
the resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as the Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the
successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things
as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties
and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such
successor Owner Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail notice of
the successor of such Owner Trustee to the Certificateholder , the Trustee,
the Noteholders and the Rating Agencies. If the Administrator shall fail to
mail such notice within 10 days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of the Administrator.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate
trust business of the Owner Trustee, shall be the successor of the Owner
Trustee hereunder, provided such corporation shall be eligible pursuant to
Section 9.1, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided further that the Owner Trustee shall
mail notice of such merger or consolidation to the Rating Agencies.
SECTION 9.5. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Owner Trust Estate 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 Owner Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Owner
Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee under this Agreement shall be required to meet the
terms of eligibility as a successor trustee pursuant to Section 9.1 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Owner Trust or any portion thereof in any
such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint
the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. This Agreement
may be amended by the Depositor and the Owner Trustee, with prior written
notice to the Rating Agencies, without the consent of the Indenture Trustee
any of the Noteholders or the Certificateholder, to cure any ambiguity or
defect, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholder; provided,
however, that such amendment will not (i) as evidenced by an Officer's
Certificate of the Depositor addressed and delivered to the Owner Trustee
and the Indenture Trustee, materially and adversely affect the interest of
any Noteholder or the Owner Trust and (ii) as evidenced by an Opinion of
Counsel addressed and delivered to the Owner Trustee and the Indenture
Trustee, cause the Owner Trust to be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income
tax purposes; provided, further, that the Depositor shall deliver written
notice of such amendments to each Rating Agency prior to the execution of
any such amendment.
This Agreement may also be amended from time to time by
the Depositor and the Owner Trustee, with prior written notice to the
Rating Agencies, with the prior written consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any
manner the rights of the Noteholders or the Certificateholder; provided
that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments in
respect of the Series Certificate or distributions that shall be required
to be made for the benefit of the Noteholders or the Certificateholder, or
(b) reduce the aforesaid percentage of the Outstanding Amount of the Notes,
the Holders of which are required to consent to any such amendment.
Promptly after the execution of any amendment or consent,
the Owner Trustee shall furnish written notification of the substance of
such amendment or consent to the Certificateholder, the Indenture Trustee
and each of the Rating Agencies.
It shall not be necessary for the consent of the
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or
otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any
part of the Owner Trust Estate. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholder to and
in its ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee
to an accounting or to the transfer to it of legal title to any part of the
Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. 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 Certificateholder and, to
the extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
SECTION 10.4. Notices. Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing
and shall be deemed given upon receipt personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and
shall be deemed to have been duly given upon receipt, if to the Owner
Trustee, addressed to _____________________, Attn: _______________, if to
the Depositor, addressed to, Chase Manhattan Bank USA, National
Association, Attn: , or, as to each party, at such other address as shall
be designated by such party in a written notice to each other party.
SECTION 10.5. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Depositor, the Owner Trustee and its successors and the
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Certificateholder shall bind the successors and
assigns of the Certificateholder.
SECTION 10.8. Nonpetition Covenants. Notwithstanding any
prior termination of the Owner Trust or this Agreement, each of the Owner
Trustee (not in its individual capacity) and the Certificateholder, by its
acceptance of the Certificate, covenants and agrees that it shall not at
any time with respect to the Owner Trust or the Master Trust, acquiesce,
petition or otherwise invoke or cause the Owner Trust or the Master Trust
to invoke the process of any court or government authority for the purpose
of commencing or sustaining a case against the Owner Trust or the Master
Trust under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Owner Trust or the
Master Trust or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Owner Trust or the Master
Trust; provided, however, that this Section 10.8 shall not operate to
preclude any remedy described in Article V of the Indenture.
SECTION 10.9. No Recourse. The Certificateholder by
accepting the Certificate acknowledges that the Certificate does not
represent an interest in or obligation of the Depositor, the Administrator,
the Owner Trustee (in its individual capacity), the Indenture Trustee or
any Affiliate thereof, and no recourse may be had against such parties or
their assets, or against the assets pledged under the Indenture.
SECTION 10.10. Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 10.12. Depositor Payment Obligation. The Depositor
shall be responsible for payment of the Administrator's fees under the
Deposit and Administration Agreement and shall reimburse the Administrator
for all expenses and liabilities of the Administrator incurred thereunder.
SECTION 10.13. Acceptance of Terms of Agreement. THE
RECEIPT AND ACCEPTANCE OF THE CERTIFICATE BY THE CERTIFICATEHOLDER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE CERTIFICATEHOLDER OF ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE
OWNER TRUSTEE, ON BEHALF OF THE OWNER TRUST, THAT THE TERMS AND PROVISIONS
OF THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
OWNER TRUSTEE AND THE CERTIFICATEHOLDER.
SECTION 10.14. Integration of Documents. This Agreement,
together with the Deposit and Administration Agreement, constitutes the
entire agreement of the parties hereto and thereto with respect to the
subject matter hereof and thereof and supercedes all prior agreements
relating to the subject matter hereof and thereof.
[Signature Page to Follow]
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.
as Owner Trustee
By:_____________________________
Name:
Title:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By:_____________________________
Name: Xxxxx Xxxxxx
Title: Vice President
EXHIBIT A
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE
(OR ANY INTEREST HEREIN) MAY NOT BE TRANSFERRED BY THE OWNER TO ANY
PERSON.
CHASE CREDIT CARD OWNER TRUST 1999-__
OWNER CERTIFICATE
R-1
(This Certificate does not represent an interest in or obligation of Chase
Manhattan Bank USA, National Association, or any of its affiliates, except
to the extent described below.)
THIS CERTIFIES THAT Chase Manhattan Bank USA, National Association
is the registered owner of the Chase Credit Card Owner Trust 1999-__ (the
"Owner Trust") created by Chase Manhattan Bank USA, National Association, a
national banking association (the "Depositor").
The Owner Trust was created pursuant to the Chase Credit Card Owner
Trust 1999-__ Trust Agreement dated as of ____________, 1999 (the "Trust
Agreement"), between the Depositor and ____________________, as owner
trustee (the "Owner Trustee"). To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in the
Trust Agreement including, as specified in Section 1.1(a).
This Certificate is the duly authorized Certificate evidencing the
sole beneficial interest in the Owner Trust (herein called the
"Certificate"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the Owner by virtue of the acceptance hereof assents and by which
the Owner is bound. Three classes of Notes designated as "Class A Floating
Rate Asset Backed Notes, Series 1999-__" (the "Class A Notes"), Class B
Floating Rate Asset Backed Notes, Series 1999-__ (the "Class B Notes") and
Class C Floating Rate Asset Backed Notes, Series 1999-__ (the "Class C
Notes" and, together with the Class A Notes and the Class B Notes, the
"Notes") will be issued under the Indenture dated as of __________, 1999
between the Owner Trust and The Bank of New York, as Indenture Trustee .
Notwithstanding any prior termination of the Trust Agreement, the
Certificateholder, by its acceptance of this Certificate, covenants and
agrees that it shall not at any time with respect to the Owner Trust, the
Depositor or the Master Trust, acquiesce, petition or otherwise invoke or
cause the Owner Trust, the Depositor or the Master Trust to invoke the
process of any court or government authority for the purpose of commencing
or sustaining a case against the Owner Trust, the Depositor or the Master
Trust, under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Owner Trust, the
Depositor or the Master Trust, or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Owner Trust,
the Depositor or the Master Trust.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the Holder hereof to any
benefit under the Trust Agreement or the Deposit and Administration
Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS
AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE OWNER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Owner Trust
and not in its individual capacity, has caused this Certificate to be duly
executed.
CHASE CREDIT CARD OWNER
TRUST 1999-__
_______________________________
Not in its individual capacity
but solely as Owner Trustee
Dated: _________________, 1999 By: _____________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
__________________________________ _______________________________
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By: __________________________
Authenticating Agent
By: ______________________________ By: __________________________
Authorized Signatory Authorized Signatory
ANNEX 1 TO EXHIBIT A
Registered Owner and address:
Chase Manhattan Bank USA, National Association
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Tax Identification Number:
