Exhibit 4.10
-------------------------------------------------------------------------------
CHASE CREDIT CARD OWNER TRUST 2002-1
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of March 13, 2002
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms...............................................................1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name............................................................................3
SECTION 2.2. Office..........................................................................3
SECTION 2.3. Purposes and Powers.............................................................3
SECTION 2.4. Appointment of Owner Trustee....................................................4
SECTION 2.5. Initial Capital Contribution of Trust Estate....................................4
SECTION 2.6. Declaration of Trust............................................................5
SECTION 2.7. Title to Owner Trust Property...................................................5
SECTION 2.8. Situs of Owner Trust............................................................5
SECTION 2.9. Representations and Warranties of the Depositor.................................5
SECTION 2.10. Liability of Certificateholder..................................................6
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership...............................................................6
SECTION 3.2. The Certificate.................................................................6
SECTION 3.3. Execution, Authentication and Delivery of Certificates..........................7
SECTION 3.4. Restrictions on Transfer........................................................7
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate................................7
SECTION 3.6. Authenticating Agent............................................................8
SECTION 3.7. Actions of Certificateholder....................................................9
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain Matters...............9
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority..............................................................10
SECTION 5.2. General Duties.................................................................10
SECTION 5.3. Action upon Instruction........................................................11
SECTION 5.4. No Duties Except as Specified in this Agreement or in Instructions.............11
SECTION 5.5. No Action Except under Specified Documents or Instructions.....................12
SECTION 5.6. Restrictions...................................................................12
SECTION 5.7. Doing Business in Other Jurisdictions..........................................12
ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties................................................13
SECTION 6.2. Furnishing of Documents........................................................14
SECTION 6.3. Representations and Warranties.................................................14
SECTION 6.4. Reliance; Advice of Counsel....................................................15
SECTION 6.5. Not Acting in Individual Capacity..............................................16
SECTION 6.6. Owner Trustee May Own Notes....................................................16
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses..............................................16
SECTION 7.2. Indemnification................................................................16
SECTION 7.3. Payments to Owner Trustee......................................................17
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement.................................................17
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee.....................................18
SECTION 9.2. Resignation or Removal of Owner Trustee........................................18
SECTION 9.3. Successor Owner Trustee........................................................19
SECTION 9.4. Merger or Consolidation of Owner Trustee.......................................19
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee..................................20
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments....................................................21
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder.....................22
SECTION 10.3. Limitations on Rights of Others...............................................22
SECTION 10.4. Notices.......................................................................22
SECTION 10.5. Severability..................................................................23
SECTION 10.6. Separate Counterparts.........................................................23
SECTION 10.7. Successors and Assigns........................................................23
SECTION 10.8. Nonpetition Covenants. ......................................................23
SECTION 10.10. Headings......................................................................23
SECTION 10.11. GOVERNING LAW.................................................................24
SECTION 10.12. Depositor Payment Obligation..................................................24
SECTION 10.13. Acceptance of Terms of Agreement..............................................24
SECTION 10.14. Integration of Documents......................................................24
ii
EXHIBITS
Exhibit A - Form of Certificate
iii
TRUST AGREEMENT dated as of March 13, 2002 between CHASE
MANHATTAN BANK USA, NATIONAL ASSOCIATION ("Chase USA"), a national banking
association having its principal executive offices located at Xxxxx Xxxx
Xxxxxx Xxxxxxxx 000, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, as the depositor (in
its capacity as the depositor, the "Depositor") and WILMINGTON TRUST COMPANY,
a Delaware banking corporation, as the owner trustee (the "Owner Trustee").
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms. (a) For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Administrator" means Chase Manhattan Bank USA, National Association,
or any successor Administrator under the Deposit and Administration
Agreement.
"Agreement" means this Chase Credit Card Owner Trust 2002-1 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 Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000; or such other
address as the Owner Trustee may designate by notice to the Depositor, or the
principal corporate trust office of any successor Owner Trustee (the address
of which the successor Owner Trustee will notify the Certificateholder and
the Depositor).
"Deposit and Administration Agreement" means the Deposit and
Administration Agreement, dated as of March 13, 2002, between the Owner
Trustee, on behalf of the Owner Trust, and Chase Manhattan Bank USA, National
Association, as Depositor and as Administrator, as the same may be amended,
supplemented or otherwise modified from time to time.
1
"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
Trustee in and to the property and rights assigned to the Owner Trustee
pursuant to Section 2.5 of this Agreement and Section 2.1 of the Deposit and
Administration Agreement, all monies, securities, instruments and other
property on deposit from time to time in the accounts established hereunder
and all other property of the Owner Trust from time to time, including any
rights of the Owner Trustee on behalf of the Owner Trust pursuant to the
Deposit and Administration Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee for
the Chase Credit Card Owner Trust 2002-1 under this Agreement (unless
otherwise specified herein), and any successor Owner Trustee hereunder.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulations, or determination of an arbitrator or Governmental Authority, in
each case applicable to or binding upon such Person or to which such Person
is subject, whether federal, state or local (including without limitation,
usury laws, the federal Truth in Lending Act and Regulation Z and Regulation B
of the Board of Governors of the Federal Reserve System).
"Secretary of State" means the Secretary of State of the State of
Delaware.
"SFAS 140" means Statement of Financial Accounting Standards No. 140,
Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
2
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles. To the
extent that the definitions of accounting terms in this Agreement or in any
such certificate or other document are inconsistent with the meanings of such
terms under generally accepted accounting principles, the definitions
contained in this Agreement or in any such certificate or other document
shall control.
(d) The words "hereof," "herein," "hereunder," and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The trust created hereby shall be referred to
for convenience as "Chase Credit Card Owner Trust 2002-1" (hereinafter, the
"Owner Trust"). The Owner Trust shall not be a "business trust" as defined in
12 Del.C. 3801.
SECTION 2.2. Office. The office of the Owner Trust shall be in
care of the Owner Trustee at the Corporate Trust Office or at such other
address as the Owner Trustee may designate by written notice to the
Certificateholder and the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Owner Trust
is, and the Owner Trustee shall have the power and authority, on behalf of
the Owner Trust to engage in the following activities:
(a) to issue the Notes in the name of the Owner Trust pursuant to
the Indenture and the Certificate pursuant to this Agreement, and to sell,
transfer or exchange the Notes and the Certificate;
(b) to acquire the property and assets set forth in the Deposit
and Administration Agreement from the Depositor pursuant to the terms
thereof, to make payments or distributions on the Notes and the Certificate
3
and to make deposits to and withdrawals from the Reserve Account and other
accounts established under the Indenture;
(c) to assign, grant, transfer, pledge, mortgage and convey the
Owner Trust Estate to the Indenture Trustee pursuant to the Indenture and to
hold, manage and distribute to the Certificateholder pursuant to the terms of
the Deposit and Administration Agreement any portion of the Owner Trust
Estate released from the Lien of, and remitted to the Owner Trust pursuant
to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith, which activities
cannot be contrary to the status of the Trust as a "qualifying special
purpose entity" under SFAS 140 and any successor rule thereto; and
(f) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
Certificateholder and the Noteholders, which activities cannot be contrary to
the status of the Trust as a "qualifying special purpose entity" under SFAS
140 and any successor rule thereto.
The Owner Trustee, on behalf of the Owner Trust, is hereby authorized to
engage in the foregoing activities. Neither the Owner Trustee, nor the Owner
Trust, shall engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents. For purposes of SFAS 140, the parties
hereto intend that (a) the Trust shall be treated as a "qualifying special
purpose entity" as such term is used in SFAS 140 and any successor rule
thereto and (b) the power and authority of the Owner Trust as stated this
Section 2.3 shall be limited in accordance with paragraph 35 of SFAS 140.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Owner Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate. The Depositor shall pay the organizational expenses of the Owner
Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
4
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Owner Trust Estate in trust upon and subject
to the conditions set forth herein for the use and benefit of the
Certificateholder, subject to the obligations of the Owner Trustee, on behalf
of the Owner Trust, under the Basic Documents. It is the intention of the
parties hereto that the Owner Trust constitute a common law trust duly formed
in accordance with the laws of the State of Delaware and that this Agreement
constitutes the governing instrument of such trust. It is the intention of
the parties hereto that, solely for United States income and franchise tax
purposes, the Owner Trust shall be treated as a division or branch of the
Depositor. The parties agree that, unless otherwise required by appropriate
tax authorities, they will take no action contrary to the foregoing
intention. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein with respect to accomplishing the
purposes of the Owner Trust.
SECTION 2.7. Title to Owner Trust Property. Legal title to all
the Owner Trust Estate shall be vested at all times in the Owner Trustee, on
behalf of the Owner Trust, except where applicable law in any jurisdiction
requires title to any part of the Owner Trust Estate to be vested in a
co-trustee or a separate trustee, in which case title to such part shall be
deemed to be vested in the co-trustee and/or separate trustee, as the case
may be.
SECTION 2.8. Situs of Owner Trust. The Owner Trust will be
located and administered in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Owner Trust shall be located
in the State of Delaware or the State of New York. Payments will be received
by the Owner Trust only in Delaware or New York, and payments and
distributions will be made by the Owner Trust only from Delaware or New York.
The only office of the Owner Trust will be at the Corporate Trust Office of
the Owner Trustee in Delaware.
SECTION 2.9. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor has been duly organized and is validly
existing as a national banking association in good standing under
the laws of the United States of America, with power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(ii) The Depositor has the corporate power and authority
to execute and deliver this Agreement and to carry out its terms;
the Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Owner
Trustee pursuant to this Agreement and the Deposit and
Administration Agreement, on behalf of the Owner Trust, and the
Depositor has duly authorized such sale and assignment and deposit
to the Owner Trustee, on behalf of the Owner Trust, by all necessary
5
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.
6
SECTION 3.2. The Certificate. (a) The Certificate shall be issued
substantially in the form of Exhibit A, which is incorporated by reference
herein. The Certificate shall be executed on behalf of the Owner Trust by
manual or facsimile signature of an Authorized Officer or other authorized
signatory of the Owner Trustee. A Certificate bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall
have been affixed, authorized to sign on behalf of the Owner Trust, shall be
validly issued and entitled to the benefit of this Agreement, notwithstanding
that such individuals or any of them shall have ceased to be so authorized
prior to the authentication and delivery of such Certificate or did not hold
such offices at the date of authentication and delivery of such Certificate.
The Certificate shall not entitle its Holder to any benefit under this
Agreement, or be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set
forth in Exhibit A, executed by the Owner Trustee, or the Owner Trustee's
authentication agent, by manual or facsimile signature; such authentication
shall constitute conclusive evidence that such Certificate shall have been
duly authenticated and delivered hereunder. The Certificate shall be dated
the date of its authentication.
(b) The Certificateholder shall be entitled to receive
distributions from the Owner Trust Estate only in accordance with this
Agreement and the Deposit and Administration Agreement. In no event shall the
Depositor or the Certificateholder be entitled to possession of, or be
permitted to encumber any part of, the Owner Trust Estate.
SECTION 3.3. Execution, Authentication and Delivery of
Certificates. Concurrently with the initial deposit of the Series Certificate
with the Owner Trustee, on behalf of the Owner Trust, pursuant to the Deposit
and Administration Agreement, the Owner Trustee shall cause the Certificate
to be executed on behalf of the Owner Trust, authenticated and delivered to
or upon the written order of the Depositor, signed by its chairman of the
board, its president or any vice president, without further action by the
Depositor.
SECTION 3.4. Restrictions on Transfer. To the fullest extent
permitted by applicable law, the Certificate (or any interest therein) may
not be sold, transferred, assigned, participated, pledged or otherwise
disposed of by the Depositor to any Person.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate. If
(a) the mutilated Certificate shall be surrendered to the Owner Trustee, or
if the Owner Trustee shall receive evidence to its satisfaction of the
destruction, loss or theft of the Certificate and (b) there shall be
delivered to the Owner Trustee such security or indemnity as may be required
by it to save it harmless, then the Owner Trustee shall execute and the Owner
Trustee, or the Owner Trustee's authenticating agent, shall authenticate and
deliver, in exchange for or in lieu of the mutilated, destroyed, lost or
stolen Certificate, a new Certificate. In connection with the issuance of any
new Certificate under this Section 3.5, the Owner Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the Owner Trust, as if originally issued, whether or not the
7
lost, stolen or destroyed Certificate shall be found at any time. The
provisions of this Section 3.5 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
of the mutilated, destroyed, lost or stolen Certificate.
SECTION 3.6. Authenticating Agent. (a) The Owner Trustee may
appoint one or more authenticating agents with respect to the Certificate
which shall be authorized to act on behalf of the Owner Trustee in
authenticating the Certificate in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the Certificate. Whenever
reference is made in this Agreement to the authentication of the Certificate
by the Owner Trustee or the Owner Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Owner Trustee by an authenticating agent and a certificate of authentication
executed on behalf of the Owner Trustee by an authenticating agent. Each
authenticating agent shall be subject to acceptance by the Depositor.
(b) Any institution succeeding to the corporate agency business
of an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any paper or any further act on the part
of the Owner Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Owner Trustee and the Depositor. The
Owner Trustee may at any time terminate the agency of an authenticating agent
by giving notice of termination to such authenticating agent and to the
Depositor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
acceptable to the Owner Trustee or the Depositor, the Owner Trustee promptly
may appoint a successor authenticating agent with the consent of the
Depositor. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an authenticating agent.
(d) The Depositor shall pay the authenticating agent from time to
time reasonable compensation for its services under this Section 3.6.
(e) The provisions of Sections 6.1, 6.3, 6.4, 6.6, 7.1 and 7.2
shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 3.6, the
Certificate may have endorsed thereon, in lieu of the Owner Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is the Certificate referred to in the within-mentioned Trust
Agreement.
or
8
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
not in its individual capacity not in its individual capacity
but solely as Owner Trustee for the but solely as Owner Trustee for the
Chase Credit Card Owner Trust 2002-1 Chase Credit Card Owner Trust 2002-1
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
9
brought by or against the Owner Trust or the Owner Trustee (except with
respect to the aforementioned claims or lawsuits to collect on the Series
Certificate);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder;
(d) the amendment, change or modification of the Deposit and
Administration Agreement, except any amendment where the consent of the
Certificateholder is not required under the terms of the Deposit and
Administration Agreement; or
(e) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note Registrar, the
Paying Agent, the Indenture Trustee or the Certificate Registrar of its
obligations under the Indenture.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Paying Agent, Authenticating Agent or Certificate
Registrar within five Business Days thereof.
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents to which the Owner
Trustee, on behalf of the Owner Trust, is to be a party and each certificate
or other document required to be executed on behalf of the Owner Trust that
is attached as an exhibit to or contemplated by the Basic Documents or any
amendment thereto or other agreement, in each case, in such form as the
Depositor shall approve as evidenced conclusively by the Owner Trustee's
execution thereof and the Depositor's execution of the related documents. In
addition to the foregoing, the Owner Trustee is authorized to take all
actions required to be taken on behalf of the Owner Trust pursuant to the
Basic Documents. The Owner Trustee is further authorized from time to time to
take such action as the Administrator directs in writing with respect to the
Basic Documents, except to extent that the Basic Documents expressly require
the consent of the Depositor for such action.
SECTION 5.2. General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the other Basic Documents and to
administer the Owner Trust in the interest of the Certificateholder, subject
to the Basic Documents and in accordance with the provisions of this
10
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the
Basic Documents to the extent the Administrator has agreed in the Deposit and
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any other Basic Document, and the Owner
Trustee shall not be liable for the default or failure of the Administrator
to carry out its obligations under the Deposit and Administration Agreement.
SECTION 5.3. Action upon Instruction. (a) The Certificateholder
may, by written instruction, direct the Owner Trustee in the management of
the Owner Trust. Such direction may be exercised at any time by written
instruction of the Certificateholder.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any other Basic Document if
the Owner Trustee shall reasonably determine, or shall have been advised by
counsel in writing, that such action is likely to result in personal
liability to the Owner Trustee (in such capacity or individually), is
contrary to the terms of this Agreement or any other Basic Document or is
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Basic Document or is unsure as to the application of
any provision of this Agreement or any other Basic Document, or if any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholder requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholder received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall
deem to be in the best interests of the Certificateholder, and shall have no
liability to any Person for such action or inaction.
SECTION 5.4. No Duties Except as Specified in this Agreement or
in Instructions. The Owner Trustee shall undertake to perform such duties
and only such duties as are specifically set forth in this Agreement and the
other Basic Documents, and no implied covenants or obligations shall be read
into this Agreement or the other Basic Documents. The Owner Trustee shall not
have any duty or obligation to manage, make any payment with respect to,
register, record, sell, dispose of, or otherwise deal with the Owner Trust
Estate, or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which the Owner Trustee
is a party, except as expressly provided by the terms of this Agreement or in
11
any document or written instruction received by the Owner Trustee pursuant to
Section 5.3; and no implied duties or obligations shall be read into this
Agreement or any other Basic Document against the Owner Trustee. The Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any filing for the Owner Trust with the
Securities and Exchange Commission or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its
own cost and expense, promptly take all action as may be necessary to
discharge any Liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee, in its individual capacity,
that are not related to the ownership or the administration of the Owner
Trust Estate.
SECTION 5.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents, and (iii) in accordance with any document or instruction delivered
to the Owner Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not (a) take
any action that is inconsistent with the purposes of the Owner Trust set
forth in Section 2.3 or (b) take any action or amend this Agreement in any
manner that, to the actual knowledge of a Responsible Officer of the Owner
Trustee, would result in the Owner Trust becoming taxable as a corporation
for United States federal income tax purposes. The Certificateholder shall
not direct the Owner Trustee to take action that would violate the provisions
of this Section.
SECTION 5.7. Doing Business in Other Jurisdictions. (a)
Notwithstanding anything contained herein to the contrary, the Owner Trustee
shall not be required to take any action in any jurisdiction other than in
the State of Delaware, other than as set forth in the last sentence of this
Section 5.7, if the taking of such action will (i) require the consent or
approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state
or other governmental authority or agency of any jurisdiction other than the
State of Delaware; (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware becoming
payable by the Owner Trustee; or (iii) subject the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes
of action arising from acts unrelated to the consummation of the transactions
by the Owner Trustee, as the case may be, contemplated hereby. The Owner
Trustee shall be entitled to obtain advice of counsel (which advice shall be
an expense of the Depositor) to determine whether any action required to be
taken pursuant to this Agreement results in the consequences described in
clauses (i), (ii) and (iii) of the preceding sentence. In the event that said
counsel advises the Owner Trustee that such action will result in such
consequences, the Owner Trustee will, at the expense of the Depositor,
12
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 gross negligence or
(ii) in the case of the breach of any representation or warranty contained
in Section 6.3 expressly made by the Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee
unless it is proved that the Owner Trustee was grossly negligent in
ascertaining the pertinent facts;
(b) The Owner Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with the
instructions of the Certificateholder given pursuant to Section 5.3;
(c) No provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in its own performance of any of its rights or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust Estate
or for or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Certificate, shall not be
accountable for the use or application by the Depositor of the proceeds from
the Certificate, and the Owner Trustee shall in no event assume or incur any
13
liability, duty or obligation to any Noteholder or to the Certificateholder,
other than as expressly provided for herein and in the other Basic Documents;
(f) The Owner Trustee shall not be liable for the default or
misconduct of the Indenture Trustee, the Administrator or the Servicer under
any of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations to be performed on behalf
of the Owner Trust under this Agreement or the other Basic Documents that
are required to be performed by the Administrator under the Deposit and
Administration Agreement or the Indenture Trustee under the Indenture;
(g) The Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Basic Document, at the request, order
or direction of the Certificateholder, unless the Certificateholder has
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any other Basic Document
shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its gross negligence, bad faith or willful
misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically
required to be furnished pursuant to any provision of this Agreement or the
other Basic Documents, shall examine them to determine whether they conform
to the requirements of this Agreement or such other Basic Document; provided,
however, that the Owner Trustee shall not be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished to the Owner Trustee pursuant
to this Agreement or the other Basic Documents.
SECTION 6.2. Furnishing of Documents. The Owner Trustee shall
furnish to the Certificateholder promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to
the Owner Trustee under the Basic Documents.
SECTION 6.3. Representations and Warranties. Wilmington Trust
Company, in its individual capacity, hereby represents and warrants to the
Depositor, for the benefit of the Certificateholder, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and having
an office within the State of Delaware. It has all requisite corporate power,
authority and legal right to execute, deliver and perform its obligations
under this Agreement.
14
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment,
writ, decree or order applicable to it, or constitute any default under its
charter documents or by-laws or, with or without notice or lapse of time, any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound.
(d) The execution, delivery and performance by Wilmington Trust
Company of this Agreement does not require the authorization, consent, or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or
agency of the State of Delaware or the United States of America regulating
the corporate trust activities of Wilmington Trust Company.
(e) This Agreement has been duly authorized, executed and
delivered by Wilmington Trust Company and shall constitute the legal, valid,
and binding agreement of Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee for the Chase Credit Card Owner Trust
2002-1, enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization and other laws
affecting the rights of creditors generally, and by general principles of
equity regardless of whether enforcement is pursuant to a proceeding in
equity or at law.
SECTION 6.4. Reliance; Advice of Counsel. (a) The Owner Trustee
shall incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond or other document or paper believed by it to be genuine and believed by
it to be signed by the proper party or parties. The Owner Trustee may accept
a certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect.
As to any fact or matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the treasurer, secretary or other authorized officers of the relevant party,
as to such fact or matter, and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or the
other Basic Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
15
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
the Owner Trustee with due care and (ii) may consult with counsel,
accountants and other skilled persons knowledgeable in the relevant area to
be selected with reasonable care and employed by it. The Owner Trustee shall
not be liable for anything done, suffered or omitted in good faith by it in
accordance with the written opinion or advice of any such counsel,
accountants or other such persons and not contrary to this Agreement or any
other Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as
provided in this Article VI, in accepting the trusts hereby created,
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee for the Chase Credit Card Owner Trust 2002-1, acts solely as the
Owner Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any other Basic Document shall look only to
the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.6. Owner Trustee May Own Notes. The Owner Trustee in
its individual or any other capacity may become the owner or pledgee of the
Notes and may deal with the Depositor, the Indenture Trustee and the Servicer
in banking transactions with the same rights as it would have if it were not
the Owner Trustee.
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have
been separately agreed upon before the date hereof between the Depositor and
the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed
by the Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder except any such expenses as may arise from its gross negligence,
wilful misfeasance, or bad faith or that is the responsibility of the
Certificateholder under this Agreement.
SECTION 7.2. Indemnification. The Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee (in such capacity
or individually) and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by,
or asserted against the Owner Trustee or any Indemnified Party in any way
16
relating to or arising out of this Agreement, the other Basic Documents, the
Owner Trust Estate, the administration of the Owner Trust Estate or the
action or inaction of the Owner Trustee hereunder, except only that the
Depositor shall not be liable for or required to indemnify the Owner Trustee
from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.1. The indemnities contained in
this Section shall survive the resignation or termination of the Owner
Trustee or the termination of this Agreement. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any Indemnified Party in respect of
which indemnity may be sought pursuant to this Section 7.2, such Indemnified
Party shall promptly notify the Depositor in writing, and the Depositor upon
request of the Indemnified Party shall retain counsel reasonably satisfactory
to the Indemnified Party (or, with the consent of the Depositor, counsel
selected by the Indemnified Party acceptable to the Depositor) to represent
the Indemnified Party and any others the Depositor may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. The Depositor shall not be liable for any
settlement of any claim or proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the Depositor agrees to indemnify any Indemnified Party from and
against any loss or liability by reason of such settlement or judgment. The
Depositor shall not, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such proceeding.
SECTION 7.3. Payments to Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VII shall be deemed not to be a part
of the Owner Trust Estate immediately after such payment.
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement. (a) The Owner Trust
shall terminate upon the final distribution by the Owner Trustee of all
moneys or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture and the Deposit and Administration Agreement;
provided, that in no event will the Owner Trust continue more than 21 years
after the date hereof. Any money or other property held as part of the Owner
Trust Estate following such distribution shall be distributed to the
Certificateholder. The bankruptcy, death, incapacity, liquidation,
dissolution or termination of the Depositor or Certificateholder (or any
other beneficiary) shall not (x) operate to revoke or terminate this
Agreement or the Owner Trust, or (y) entitle the Certificateholder's (or any
other beneficiary) legal representatives to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of all or
17
any part of the Owner Trust or Owner Trustee Estate or (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a) or 8.1(c), neither the
Depositor nor the Certificateholder shall be entitled to revoke or terminate
the Owner Trust.
(c) Except as provided in this Section 8.1(c), neither the
Depositor nor the Certificateholder shall be entitled to revoke or terminate
the Owner Trust or this Agreement. The Depositor and the Owner Trustee
acknowledge that the Indenture Trustee, on behalf of the Noteholders, is a
third-party beneficiary of this Agreement and shall be entitled to enforce
the terms of this Agreement to the same extent as if they were signatories
hereto. For so long as the Notes are outstanding, neither the Owner Trust nor
this Agreement shall be revoked without the prior written consent of the
Indenture Trustee. The Depositor and the Owner Trustee acknowledge that the
Indenture Trustee, as an agent of the Noteholders, maintains a legitimate
interest in ensuring 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 Moody's, 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
18
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy of which shall be delivered to the
successor Owner Trustee, and payment of all fees owed to the outgoing Owner
Trustee shall be made to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment
of a successor Owner Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 9.3 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Administrator shall provide
notice of such resignation or removal of the Owner Trustee to each of the
Note Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties
and obligations of its predecessor under this Agreement, with like effect as
if originally named as the Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this Agreement; and
the Administrator and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided
in this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator shall mail notice of the
successor of such Owner Trustee to the Certificateholder, the Indenture
Trustee, the Noteholders and the Note Rating Agencies. If the Administrator
19
shall fail to mail such notice within 10 days after acceptance of appointment
by the successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of the Administrator.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
9.1, without the execution or filing of any instrument or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided further that the Owner Trustee shall mail notice of
such merger or consolidation to the Note Rating Agencies.
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate may at the time be located, the Administrator
and the Owner Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint at the expense of the Depositor one or
more Persons approved by the Owner Trustee to act as co-trustee, jointly with
the Owner Trustee, or separate trustee or separate trustees, of all or any
part of the Owner Trust Estate, and to vest in such Person, in such capacity,
such title to the Owner Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Owner
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 9.1 and no notice of
the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Owner Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act
or acts are to be performed, the Owner Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of
title to the Owner Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Owner Trustee;
20
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Owner Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
the Note Rating Agencies, without the consent of the Indenture Trustee, any
of the Noteholders or the Certificateholder, to cure any ambiguity or defect,
to correct or supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions in this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholder; provided, however, that such
amendment will not (i) as evidenced by an Officer's Certificate of the
Depositor addressed and delivered to the Owner Trustee and the Indenture
Trustee, materially and adversely affect the interest of any Noteholder or
the Owner Trust or significantly change any of the Trust's permitted
activities as described in Section 2.3 and (ii) as evidenced by an Opinion of
Counsel addressed and delivered to the Owner Trustee and the Indenture
Trustee, cause the Owner Trust to be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
21
purposes; provided, further, that the Depositor shall deliver written notice
of such amendments to each Note Rating Agency prior to the execution of any
such amendment.
This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Note Rating
Agencies, with the prior written consent of the Holders of Notes evidencing
not less than a majority of the Outstanding Amount of the Notes for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or modifying in any manner the rights
of the Noteholders or the Certificateholder; provided that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or
delay the timing of, collections of payments in respect of the Series
Certificate or distributions that shall be required to be made for the
benefit of the Noteholders or the Certificateholder, or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes, the Holders of
which are required to consent to any such amendment.
Promptly after the execution of any amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Indenture Trustee and each
of the Note Rating Agencies.
It shall not be necessary for the consent of the Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the
Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any
specific property in the Owner Trust Estate. No transfer, by operation of law
or otherwise, of any right, title or interest of the Certificateholder to and
in its ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any specific
property in the Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of the Owner Trustee, the
Depositor, the Certificateholder and, to the extent expressly provided
herein, the Indenture Trustee, the Administrator and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
22
SECTION 10.4. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested and shall be
deemed to have been duly given upon receipt, if to the Owner Trustee,
addressed to Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attn: Corporate Trust Administration, if
to the Depositor, addressed to, Chase Manhattan Bank USA, National
Association, Attn: Xxxxxxxx X. Xxxxxx, 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
23
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]
24
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/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
