OH&S Draft
8/21/96
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CHASE MANHATTAN AUTO OWNER TRUST 199_-_
TRUST AGREEMENT
among
[CHASE MANHATTAN BANK USA, N.A.,
as Depositor
[--------------,]
as General Partner
and
------------------------------,
as Owner Trustee
Dated as of _________, 199_
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TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms.......................... 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name....................................... 2
SECTION 2.2 Office..................................... 2
SECTION 2.3 Purposes and Powers........................ 2
SECTION 2.4 Appointment of Owner Trustee............... 3
SECTION 2.5 Initial Capital Contribution of Trust
Estate..................................... 3
SECTION 2.6 Declaration of Trust....................... 3
SECTION 2.7 Title to Issuer Property................... 3
SECTION 2.8 Situs of Issuer............................ 4
SECTION 2.9 Representations and Warranties of the
Depositor.................................. 4
SECTION 2.10 Liability of Owners........................ 4
SECTION 2.11. Guaranteed Payments/Gross Income
Allocations................................ 5
SECTION 2.12. Deduction and Loss Allocations............. 6
SECTION 2.13. Special Allocations........................ 6
SECTION 2.14. Amended and Restated Trust Agreement....... 6
SECTION 2.15. Required Net Worth of General Partner...... 6
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership.......................... 7
SECTION 3.2 The Certificates........................... 7
SECTION 3.3 Execution, Authentication and Delivery
of Certificates............................ 7
SECTION 3.4 Registration of Transfer and Exchange of
Certificates............................... 7
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates............................... 9
SECTION 3.6 Persons Deemed Certificateholders.......... 9
SECTION 3.7 Access to List of Certificateholders'
Names and Addresses........................ 10
SECTION 3.8 Maintenance of Office or Agency............ 10
SECTION 3.9 Appointment of Paying Agent................ 10
SECTION 3.10 Book-Entry Certificates.................... 11
SECTION 3.11 Notices to Clearing Agency................. 12
SECTION 3.12 Definitive Certificates.................... 12
SECTION 3.13 Authenticating Agent....................... 13
SECTION 3.14 Actions of Certificateholders.............. 15
SECTION 3.15. Disposition of Certificates by General
Partner.................................... 15
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to
Certain Matters............................ 16
SECTION 4.2 Action by Certificateholders with
Respect to Certain Matters................. 16
SECTION 4.3 Action by Certificateholders with Respect
to Bankruptcy.............................. 17
SECTION 4.4 Restrictions on Certificateholders' Power.. 17
SECTION 4.5 Majority Control........................... 17
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution
Account.................................... 17
SECTION 5.2 Application of Funds in Certificate
Distribution Account....................... 18
SECTION 5.3 Method of Payment.......................... 19
SECTION 5.4 No Segregation of Monies; No Interest...... 19
SECTION 5.5 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue
Service and Others......................... 19
SECTION 5.6 Signature on Returns; Tax Matters Partner.. 19
SECTION 5.7 Capital Accounts........................... 20
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority.......................... 21
SECTION 6.2 General Duties............................. 21
SECTION 6.3 Action upon Instruction.................... 21
SECTION 6.4 No Duties Except as Specified in this
Agreement or in Instructions............... 22
SECTION 6.5 No Action Except under Specified Documents
or Instructions............................ 22
SECTION 6.6 Restrictions............................... 23
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties............ 23
SECTION 7.2 Furnishing of Documents.................... 25
SECTION 7.3 Representations and Warranties............. 25
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SECTION 7.4 Reliance; Advice of Counsel................ 26
SECTION 7.5 Not Acting in Individual Capacity.......... 27
SECTION 7.6 Owner Trustee May Own Certificates and
Notes...................................... 27
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses.......... 27
SECTION 8.2 Indemnification............................ 27
SECTION 8.3 Payments to Owner Trustee.................. 28
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement............. 28
SECTION 9.2 Dissolution upon Bankruptcy of the General
Partner.................................... 30
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner
Trustee.................................... 30
SECTION 10.2 Resignation or Removal of Owner Trustee.... 31
SECTION 10.3 Successor Owner Trustee.................... 31
SECTION 10.4 Merger or Consolidation of Owner Trustee... 32
SECTION 10.5 Appointment of Co-Trustee or Separate
Trustee.................................... 32
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments................. 34
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders......................... 35
SECTION 11.3 Limitations on Rights of Other............. 35
SECTION 11.4 Notices.................................... 35
SECTION 11.5 Severability............................... 36
SECTION 11.6 Separate Counterparts...................... 36
SECTION 11.7 Successors and Assigns..................... 36
SECTION 11.8 No Petition................................ 36
SECTION 11.9 No Recourse................................ 36
SECTION 11.10 Headings................................... 37
SECTION 11.11 GOVERNING LAW.............................. 37
SECTION 11.12 Certificate Transfer Restrictions.......... 37
SECTION 11.13. Seller Payment Obligation.................. 37
[SECTION 11.14. References to the Depositor or Chase
Manhattan Bank USA, N.A.].................. 37
iii
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Certificate Depository Agreement
iv
TRUST AGREEMENT dated as of ___________, 199_ among CHASE MANHATTAN
BANK USA, N.A., a national banking association, as the depositor ("Chase
USA") and in its capacity as the depositor, the "Depositor"),
__________________, a ____________________________ (the "General Partner"),
and _______________________, a __________ banking corporation, as the Owner
Trustee.
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Section 1.1 to the Sale and Servicing Agreement
between the trust established by this Agreement and Chase USA, as Seller and
Servicer, dated as of ___________, 199_, as the same may be amended and
supplemented from time to time.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder," and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) All calculations of the amount of interest accrued on
the Certificates shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The trust created hereby shall be known as "Chase
Manhattan Auto Owner Trust 199__" (hereinafter, the "Issuer") in which name
the Owner Trustee may conduct the business of such trust, make and execute
contracts and other instruments on behalf of such trust and sue and be sued.
SECTION 2.2 Office. The office of the Issuer shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholders and
the Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Issuer is, and
the Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and
the Certificates pursuant to this Agreement, and to sell,
transfer or exchange the Notes and the Certificates;
(b) to acquire the property and assets set forth in the
Sale and Servicing Agreement from the Depositor pursuant to the terms
thereof, to make payments or distributions on the Notes and
Certificates, to make deposits to and withdrawals from the Reserve
Account and other accounts established under the Sale and Servicing
Agreement;
(c) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate pursuant to the Indenture and to hold, manage
and distribute to the Certificateholders pursuant to the terms of the
Sale and Servicing Agreement;
(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
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making of distributions to the Certificateholders and the
Noteholders.
Issuer is hereby authorized to engage in the foregoing activities. Issuer
shall not engage in any activity other than in connection with the foregoing
or other than as required or authorized by the terms of this Agreement or the
other Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate and shall be deposited in the Certificate Distribution Account. The
Depositor shall pay the organizational expenses of the Issuer as they may
arise or shall, upon the request of the Owner Trustee, promptly reimburse the
Owner Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Issuer under the Basic Documents. It is the
intention of the parties hereto that the Issuer constitute a business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention of the
parties hereto that, solely for income and franchise tax purposes, the Issuer
shall be treated as a partnership. The parties agree that, unless otherwise
required by appropriate tax authorities, the Issuer will file or cause to be
filed annual or other necessary returns, reports and other forms consistent
with the characterization of the Issuer as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and to the extent not inconsistent
herewith, in the Business Trust Statute with respect to accomplishing the
purposes of the Issuer. The Owner Trustee shall file the Certificate of Trust
with the Secretary of State of Delaware.
SECTION 2.7 Title to Issuer Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Issuer as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case the title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
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SECTION 2.8 Situs of Issuer. The Issuer will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Issuer shall be located in the State of
Delaware or the State of New York. Payments will be received by the Issuer
only in Delaware or New York, and payments will be made by the Issuer only
from Delaware or New York. The only office of the Issuer will be at its office
in Delaware.
SECTION 2.9 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor has been duly organized and is validly
existing as a national banking association in good standing under the
laws of the United States of America, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at
all relevant times, and has, power, authority and legal right to
acquire and own the Receivables.
(b) The Depositor has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Issuer,
and the Depositor has duly authorized such sale and assignment and
deposit to the Issuer by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been duly
authorized by the Depositor by all necessary corporate action.
(c) 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 (other than pursuant to the Basic Documents); nor
violate any law or, to the best of the Depositor's knowledge, any
order, rule or regulation applicable to the Depositor of any court or
of any Federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Depositor or its properties.
SECTION 2.10 Liability of Owners. (a) The General Partner
shall be liable directly to and will indemnify the injured party
4
for all losses, claims, damages, liabilities and expenses of the Issuer
(including Expenses (as defined in Section 8.02)), to the extent that, if all
amounts due on the Notes and Certificates were paid in full at the time such
liability becomes due, the remaining assets of the Issuer would be
insufficient to pay such amount) to the extent that the General Partner would
be liable if the Issuer were a partnership under the Delaware Revised Uniform
Limited Partnership Act in which the General Partner were a general partner;
provided, however, that the General Partner shall not be liable for any losses
incurred by a Certificateholder in the capacity of an investor in the
Certificates or a Noteholder in the capacity of an investor in the Notes. In
addition, any third party creditors of the Issuer (other than in connection
with the obligations described in the preceding proviso for which the General
Partner shall not be liable) shall be deemed third party beneficiaries of this
paragraph. The obligations of the General Partner under this paragraph shall
be evidenced by the Certificates described in Section 3.15, which for purposes
of the Business Trust Statute shall be deemed to be a separate class of
Certificates from all other Certificates issued by the Issuer; provided,
however, that the rights and obligations evidenced by all Certificates,
regardless of class, shall, except as provided in this Section, be identical.
(b) No Certificateholder, other than to the extent set forth in
subsection 2.10(a), shall have any personal liability for any liability or
obligation of the Issuer.
SECTION 2.11. Guaranteed Payments/Gross Income Allocations.
(a) Inasmuch as the Certificateholders' Interest Distributable Amount is
determined and paid hereunder without regard to the income of the Issuer, the
Issuer shall treat payments of such amounts as "guaranteed payments" within
the meaning of Section 707(c) of the Code. Consequently, Certificateholders
will have ordinary income equal to their allocable share of the
Certificateholders' Interest Distributable Amount, the Issuer will have an
equivalent deduction for Federal income tax purposes and no amount of the
gross income of the Issuer shall be allocable to the Certificateholders (and
there will be no corresponding increase in a Certificateholders's Capital
Account under Section 5.7). In the event that any taxing authority does not
respect such tax treatment, the gross income of the Issuer for any calendar
month as determined for Federal income tax purposes shall be allocated, after
giving effect to special allocations set forth in Section 2.12 of this
Agreement and for purposes of maintaining Capital Accounts under Section 5.7
of this Agreement as follows:
(1) first, among the Owners as of the close of the last day
of such calendar month, in proportion to their ownership of the
principal amount of Certificates on such date, an amount of gross
income equal to the amount of interest that accrues in such calendar
month on the Certificates in accordance with their terms, including
interest accruing thereon at the Certificate Rate monthly and
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interest on amounts previously due under the Certificates and
not yet paid as provided therein; and
(2) the balance of gross income, if any, to the General
Partner.
If the gross income of the Issuer for any month is insufficient for the
allocations described in clause (a) above, subsequent items of gross income
shall first be allocated to make up such shortfall before being allocated as
provided in clause (b).
(b) In the event the initial issue price of the Certificates differs
from their initial principal amount, there shall be specially allocated to the
Certificateholders the portion, if any, of the offset for premium (in the case
the issue price of the Certificates exceeds their principal amount) or market
discount income (in the case the principal amount of the Certificates exceeds
their issue price) on the Receivables accruing for a calendar month that is
attributable to such difference.
SECTION 2.12. Deduction and Loss Allocations. All items of deduction
and loss of the Issuer shall be allocated to the General Partner and the Seller.
SECTION 2.13. Special Allocations.(a)In the event any
Certificateholder unexpectedly receives any adjustments, allocations or
distributions described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Issuer income and gain shall be
specially allocated to such Certificateholder in an amount and manner
sufficient to eliminate, to the extent required by the Treasury Regulations,
the deficit, if any, in the balance of the Capital Account of such
Certificateholder as quickly as possible. This Section 2.13(a) is intended to
comply with the qualified income offset provision in Section
1.704-1(b)(2)(ii)(d) of the Treasury Regulations.
SECTION 2.14. Amended and Restated Trust Agreement. This Agreement
amends and restates in its entirety the Trust Agreement dated as of
[_______________] between the Depositor and Owner Trustee.
SECTION 2.15. Required Net Worth of General Partner. For so long as
any Notes or Certificates shall remain outstanding, the General Partner shall
take all actions necessary to maintain its net worth (exclusive of its
interest in the Trust) equal to $[insert amount equal to 10% of the sum of the
initial Certificate Balance and the initial balance of the Reserve Account];
provided, however, that the General Partner may maintain a lesser net worth
(exclusive of its interest in the Issuer) if it shall have obtained an opinion
from Simpson Thacher & Bartlett that the maintenance of such lesser net worth
will not cause the Issuer to be classified as an association taxable as a
corporation for Federal income tax purposes.
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ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership. Upon the formation of the Issuer by
the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Certificates, the Depositor shall be the sole beneficiary of
the Trust.
SECTION 3.2 The Certificates. The Certificates shall be issued in
denominations of $1,000 and integral multiples thereof; provided that one
Certificate may be issued that includes any residual portion of the initial
Certificate Balance in a denomination other than an integral multiple of
$1,000. The Certificates shall be executed on behalf of the Issuer by manual
or facsimile signature of an Authorized Officer or other authorized signatory
of the Owner Trustee. Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Issuer, shall be validly issued
and entitled to the benefit of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of authentication and delivery of such Certificates. No
Certificate shall entitle the Holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate
a certificate of authentication substantially in the form set forth in Exhibit
A, executed by the Owner Trustee [or _________________, as the Owner Trustee's
authentication agent] by manual or facsimile signature; such authentication
shall constitute conclusive evidence that such Certificate shall have been
duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication. A transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder, upon due registration of such
Certificate in such transferee's name pursuant to Section 3.4.
SECTION 3.3 Execution, Authentication and Delivery of Certificates.
Concurrently with the transfer of the Receivables to the Issuer pursuant to
the Sale and Servicing Agreement, the Owner Trustee shall cause the
Certificates in an aggregate principal amount equal to the initial Certificate
Balance to be executed on behalf of the Issuer, authenticated and delivered to
or upon the written order of the Depositor, signed by its chairman of the
board, its president or any vice president, without further corporate action
by the Depositor, in authorized denominations.
SECTION 3.4 Registration of Transfer and Exchange of Certificates.
The Owner Trustee shall cause to be kept at the office or agency to be
maintained pursuant to Section 3.8 by a certificate registrar (the
"Certificate Registrar"), a register (the "Certificate Register") in which,
subject to such reasonable
7
regulations as it may prescribe, the Certificate Registrar shall provide for
the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Chase Manhattan Bank shall be the initial
Certificate Registrar. In the event that, subsequent to the date of issuance
of the Certificates, The Chase Manhattan Bank notifies the Owner Trustee that
it is unable to act as the Certificate Registrar, the Owner Trustee shall act,
or the Owner Trustee shall, with the consent of the Depositor, appoint another
bank or trust company, having an office or agency located in The City of New
York and which agrees to act in accordance with the provisions of this
Agreement applicable to it, to act, as successor Certificate Registrar under
this Agreement.
The Owner Trustee may revoke such appointment and remove The Chase
Manhattan Bank as the Certificate Registrar if the Owner Trustee determines in
its sole discretion that The Chase Manhattan Bank failed to perform its
obligations under this Agreement in any material respect. The Chase Manhattan
Bank shall be permitted to resign as the Certificate Registrar upon 30 days'
written notice to the Owner Trustee, the Depositor and the Issuer; provided,
however, that such resignation shall not be effective and The Chase Manhattan
Bank shall continue to perform its duties as the Certificate Registrar until
the Owner Trustee has appointed a successor Certificate Registrar with the
consent of the Depositor.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute, authenticate and (if the Certificate Registrar is different than the
Owner Trustee, then the Certificate Registrar shall) deliver (or shall cause
The Chase Manhattan Bank as its authenticating agent to authenticate and
deliver), in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like class and aggregate
face amount dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Holder, Certificates may be exchanged
for other Certificates of the same class in authorized denominations of a like
aggregate amount upon surrender of the Certificates to be exchanged at the
office or agency maintained pursuant to Section 3.8.
Whenever any Certificate is surrendered for exchange, the Owner
Trustee shall execute, authenticate and (if the Certificate Registrar is
different than the Owner Trustee, then the Certificate Registrar shall)
deliver the Certificates which the Cer- tificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder, which signature on such
assignment must be guaranteed by a member of the New York Stock Exchange or a
commercial bank or trust company.
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Each Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Owner Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
of if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then in
the absence of notice that such Certificate shall have been acquired by a bona
fide purchaser, the Owner Trustee on behalf of Issuer shall execute and the
Owner Trustee, or The Chase Manhattan Bank, as the Owner Trustee's
authenticating agent, shall authenticate and (if the Certificate Registrar is
different from the Owner Trustee, then the Certificate Registrar shall)
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like class, tenor and denomination.
If, after delivery of such replacement Certificate, a bona fide purchaser of
the original Certificate in lieu of which such replacement Certificate was
issued presents for payment such original Certificate, the Owner Trustee or
the Certificate Registrar shall be entitled to recover such replacement
Certificate from such Person to whom such replacement Certificate was
delivered or any assignee of such Person, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor
to the extent of any loss, damage, cost or expense incurred by the Owner
Trustee or the Certificate Registrar in connection therewith. In connection
with the issuance of any new Certificate under this Section 3.5, the Owner
Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership interest in
Issuer, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time. The provisions of this Section 3.5 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement of mutilated, destroyed, lost or
stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee
or the Certificate Registrar may treat the Person in whose name any
Certificate shall be registered in the Certificate Register as the owner of
such Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other
9
purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and
Addresses. The Certificate Registrar shall furnish or cause to be furnished to
the Servicer and the Depositor (and to the Owner Trustee, if the Owner Trustee
is not the Certificate Registrar) within 15 days after receipt by the
Certificate Registrar of a request therefor from the Servicer or the Depositor
(or the Owner Trustee) in writing, a list, in such form as the Servicer or the
Depositor may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If, at such time, if
any, as Definitive Certificates have been issued, if three or more Holders of
Certificates or one or more Holders of Certificates evidencing not less than
25% of the Certificate Balance apply in writing to the Certificate Registrar,
and such application states that the applicants desire to communicate with
other Certificateholders with respect to their rights under this Agreement or
under the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Certificate
Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed to hold none of the Depositor, the
Certificate Registrar, the Servicer or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
SECTION 3.8 Maintenance of Office or Agency. The Owner Trustee shall
maintain in The City of New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or
exchange. The Owner Trustee initially designates the offices of The Chase
Manhattan Bank, as its office for such purposes. The Owner Trustee shall give
prompt written notice to the Depositor, the Servicer and to the
Certificateholders of any change in the location of the Certificate Register
or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Paying Agent shall have
the revocable power to withdraw funds from the Certificate Distribution
Account, make distributions to Certificateholders from the Certificate
Distribution Account pursuant to Section 5.2 and shall report the amounts of
such distributions to the Owner Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account
for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect or for
other good cause. The Paying Agent shall initially be The Chase Manhattan
Bank. The Paying Agent shall be permitted to resign upon
10
30 days' written notice to the Owner Trustee and the Servicer. In the event
that The Chase Manhattan Bank shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be a
bank or trust company and may be the Owner Trustee), with the consent of the
Depositor (which consent shall not be unreasonably withheld). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Owner Trustee (unless it is the Owner Trustee) to execute and
deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon the removal of a Paying Agent,
such Paying Agent shall also return all funds in its possession to the Owner
Trustee. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to the
Owner Trustee also in its role as Paying Agent, for so long as the Owner
Trustee shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.10 Book-Entry Certificates. Except as specified in Section
3.15, the Certificates, upon original issuance, will be issued in the form of
a typewritten Certificate or Certificates representing Book-Entry
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by or on behalf of the Issuer. Such Book-Entry Certificate or
Certificates shall initially be registered on the Certificate Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no
beneficial owner (other than the Depositor) will receive a definitive
Certificate representing such beneficial owner's interest in such Certificate,
except as provided in Section 3.12. Unless and until Definitive Certificates
have been issued to beneficial owners pursuant to Section 3.12:
(a) the provisions of this Section 3.10 shall be in
full force and effect;
(b) the Certificate Registrar, the Paying Agent and the
Owner Trustee shall be entitled to deal with the Clearing Agency and
the Clearing Agency Participants for all purposes of this Agreement
relating to the Book-Entry Certificates (including the payment of
principal of and interest on the Book-Entry Certificates and the
giving of instructions or directions to Certificate Owners of
Book-Entry Certificates) as the sole Holder of Book-Entry
Certificates and shall have no obligations to Certificate Owners
thereof;
11
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions
of this Section shall control;
(d) the rights of Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Clearing Agency (or
to the extent Certificateholders are not Clearing Agency
Participants, through the Clearing Agency Participants through which
such Certificateholders own Book-Entry Certificates), and shall be
limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or Clearing Agency
Participants, and all references in this Agreement to actions by
Certificateholders shall refer to actions taken by the Clearing
Agency upon instructions from the Clearing Agency Participants, and
all references in this Agreement to distributions, notices, reports
and statements to Certificateholders shall refer to distributions,
notices, reports and statements to the Clearing Agency, as registered
holder of the Certificates, as the case may be, for distribution to
Certificateholders in accordance with the procedures of the Clearing
Agency. Pursuant to the Certificate Depository Agreement, unless and
until Definitive Certificates are issued pursuant to Section 3.12,
the initial Clearing Agency will make book-entry transfers among
Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Book-Entry Certificates to such
Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of the Holders of
Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to
such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Book-Entry Certificates
and has delivered such instructions to the Owner Trustee.
SECTION 3.11 Notices to Clearing Agency. Whenever a notice or other
communication to Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.12, the Owner Trustee and the Paying Agent shall give
all such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency, and shall have no obligations to
Certificate Owners.
SECTION 3.12 Definitive Certificates. If (a) the Servicer advises the
Owner Trustee in writing that the Clearing Agency is no longer willing or able
to properly discharge its responsibilities with respect to the Certificates,
and the Servicer is unable to locate a qualified successor, (b) the Servicer
at its option elects to terminate the book-entry system through the Clearing
Agency, or
12
(c) after the occurrence of an Event of Default or an Event of Servicing
Termination, Certificate Owners of the Certificates representing beneficial
interests aggregating not less than 50% of the Certificate Balance advise the
Clearing Agency and the Owner Trustee in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best
interests of Certificate Owners, then the Clearing Agency shall notify all
Certificate Owners of the occurrence of any such event and of the availability
of the Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the typewritten Certificate or
Certificates representing the Book-Entry Certificates by the Clearing Agency,
accompanied by re-registration instructions, the Owner Trustee shall execute,
authenticate, or cause to be authenticated, and (if the Certificate Registrar
is different than the Owner Trustee, then the Certificate Registrar shall)
deliver the Definitive Certificates in accordance with the instructions of the
Clearing Agency. Neither the Certificate Registrar nor the Owner Trustee shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates, all references herein to obligations
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Certificate Registrar, to the extent
applicable with respect to such Definitive Certificates, and the Owner Trustee
and the Paying Agent shall recognize the Holders of the Definitive
Certificates as Certificateholders. The Definitive Certificates shall be
printed, lithographed or engraved or may be produced in any other matter as is
reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof.
SECTION 3.13 Authenticating Agent.
(a) The Owner Trustee may appoint one or more
authenticating agents with respect to the Certificates which shall be
authorized to act on behalf of the Owner Trustee in authenticating
the Certificates in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the Certificates.
The Owner Trustee hereby appoints The Chase Manhattan Bank as
Authenticating Agent for the authentication of Certificates upon any
registration of transfer or exchange of such Certificates. Whenever
reference is made in this Agreement to the authentication of
Certificates by the Owner Trustee or the Owner Trustee's certificate
of authentication, such reference shall be deemed to include
authentication on behalf of the Owner Trustee by an authenticating
agent and a certificate of authentication executed on behalf of the
Owner Trustee by an authenticating agent. Each authenticating agent,
other than The Chase Manhattan Bank, 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
13
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. No successor
authenticating agent shall be appointed unless acceptable to the
Depositor.
(d) The Servicer shall pay the Authenticating Agent from
time to time reasonable compensation for its services under this
Section 3.13.
(e) The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall
be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
3.13, the Certificates may have endorsed thereon, in lieu of the
Owner Trustee's certificate of authentication, an alternate
certificate of authentication in substantially the following form:
This is one of the Certificates referred to in the within
mentioned Agreement.
-----------------------------,
as Owner Trustee
By:
-----------------------------
Authorized Officer
or
-----------------------------
as Authenticating Agent
for the Owner Trustee,
-----------------------------
Authorized Officer
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SECTION 3.14 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be
given or taken by the Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Certificateholders in person or by agent duly
appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Owner Trustee and, when required, to
the Depositor or the Servicer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and conclusive in favor
of the Owner Trustee, the Depositor and the Servicer, if made in the
manner provided in this Section 3.14.
(b) The fact and date of the execution by any Certifi-
cateholder of any such instrument or writing may be proved in any
reasonable manner which the Owner Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every
Holder of every Certificate issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof, in respect of
anything done, or omitted to be done, by the Owner Trustee, the
Depositor or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Owner Trustee may require such additional proof of
any matter referred to in this Section 3.14 as it shall deem
necessary.
SECTION 3.15. Disposition of Certificates by General Partner. On the
Closing Date, the General Partner shall purchase from the Depositor
Certificates representing at least 1.00% of the Certificate Balance and, at
all times thereafter, shall retain beneficial and record ownership of
Certificates representing at least 1.00% of the Certificate Balance. Any
attempted transfer of any Certificate that would reduce such interest of the
General Partner below 1.00% of the Certificate Balance shall be void. The
Owner Trustee shall cause any Certificate issued to the General Partner to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE." Certificates
issued to the General Partner shall be in definitive form only.
15
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Owners with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall not take action
unless at least 30 days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders in writing of the proposed action
and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the
Issuer (except claims or lawsuits brought in connection with the
collection of the Receivables) and the compromise of any material
action, claim or lawsuit brought by or against the Issuer (except
with respect to the aforementioned claims or lawsuits for collection
of the Receivables);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder
is required;
(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest
of the Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement, except to any amendment where the consent of any
Certificateholder is not required under the terms of the Sale and
Servicing Agreement; or
(f) the appointment pursuant to the Indenture of a successor
Trustee or the consent to the assignment by the Note Registrar, the
Paying Agent, the Trustee or the Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Paying Agent, Authenticating Agent or Certificate
Registrar within five Business Days thereof.
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) remove the Servicer under the Sale and
Servicing Agreement pursuant to Article VIII thereof, (b) remove the
Administrator under the
16
Administration Agreement pursuant to Section 8 thereof or (c)except as
expressly provided in the Basic Documents, sell the Receivables or any
interest therein after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to the Issuer without the unanimous prior approval of
all Certificateholders unless the Owner Trustee reasonably believes that the
Issuer is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of the Issuer or the Owner Trustee under this Agreement or any of
the other Basic Documents or would be contrary to Section 2.3 nor shall the
Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement
may be taken by the Holders of Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by the Holders of Certificates evidencing not
less than a majority of the Certificate Balance at the time of the delivery of
such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account. The
Owner Trustee, for the benefit of Certificateholders, shall establish and
maintain in the name of the Issuer an Eligible Deposit Account (the
"Certificate Distribution Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee for the benefit of the Certificateholders.
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account and
in all proceeds thereof. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Servicer shall within 10
Business Days following notification of such occurrence (or such longer
period, not to exceed 30 calendar days, as to which
17
each Rating Agency may confirm their rating of the Certificates), establish a
new Certificate Distribution Account as an Eligible Deposit Account and shall
cause the Owwner Trustee to transfer any cash and/or any investments to such
new Certificate Distribution Account.
SECTION 5.2 Application of Funds in Certificate Distribution Account.
(a) Not later than 12:00 noon, New York City time, on each Distribution Date,
the Owner Trustee or the Paying Agent on behalf of the Owner Trustee will,
based on the information contained in the Servicer's Certificate delivered on
the related Determination Date pursuant to Section 4.9 of the Sale and
Servicing Agreement, distribute to Certificateholders, to the extent of the
funds available, amounts deposited in the Certificate Distribution Account
pursuant to Section 5.5 of the Sale and Servicing Agreement on such
Distribution Date in the following order of priority:
(i) first, to the Certificateholders, on a pro rata
basis, an amount equal to the Certificateholders' Interest
Distributable Amount; and
(ii) second, to the Certificateholders, on a pro rata basis,
an amount equal to the Certificateholders' Principal Distributable
Amount.
(b) On each Distribution Date, the Owner Trustee shall send, or cause
to be sent, to each Certificateholder the statement provided to the Owner
Trustee by the Servicer pursuant to Section 5.7 of the Sale and Servicing
Agreement on such Distribution Date.
(c) In the event that any withholding tax is imposed on the Issuer's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Issuer (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Issuer and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax
is payable with respect to a distribution (such as a distribution to a
non-United States Certificateholder), the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this clause (c). In the
event that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with such
Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
18
SECTION 5.3 Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding Record
Date either (a) by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior
to such Distribution Date and such Holder's Certificates in the aggregate
evidence a denomination of not less than $1,000,000 or (b) by check mailed to
such Certificateholder at the address of such Holder appearing in the
Certificate Register: provided that, unless Definitive Certificates have been
issued pursuant to Section 3.12, with respect to Certificates registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), distributions will be made by wire transfer in
immediately available funds to the account designated by such nominee.
SECTION 5.4 No Segregation of Monies; No Interest. Subject to
Sections 5.1 and 5.2, monies received by the Owner Trustee or any Paying Agent
hereunder need not be segregated in any manner except to the extent required
by law and may be deposited under such general conditions as may be prescribed
by law, and neither the Owner Trustee nor any Paying Agent shall be liable for
any interest thereon.
SECTION 5.5 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Issuer on a
calendar year basis on the accrual method of accounting, (b) deliver (or cause
to be delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its
Federal and state income tax returns, (c) prepare and file such tax returns
relating to the Issuer (including a partnership information return, Form
1065), and make such elections as may from time to time be required or
appropriate under any applicable state or Federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
partnership for Federal income tax purposes and (d) collect or cause to be
collected any withholding tax as described in and in accordance with Section
5.2(c) with respect to income or distributions to Certificateholders. The
General Partner shall sign all tax information returns filed pursuant to this
Section 5.5 and any other returns as may be required by law. The Owner Trustee
shall elect under Section 1278 of the Code to include in income currently any
market discount that accrues with respect to the Receivables. The Owner
Trustee shall not make the election provided under Section 754 of the Code.
SECTION 5.6 Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.5, the General Partner
19
shall sign on behalf of the Issuer the tax returns of the Issuer, unless
applicable law requires the Owner Trustee to sign such documents, in which
case such documents shall be signed by the Owner Trustee at the written
direction of the General Partner.
(b) The General Partner shall be the "tax matters partner" of the
Issuer pursuant to the Code.
SECTION 5.7 Capital Accounts.The Issuer shall maintain accounts
("Capital Accounts") with respect to each Owner (including the Depositor).
For this purpose, Capital Accounts shall be maintained in accordance with
the following provisions:
(a) Each Certificateholder's Capital Account shall be
increased by the Capital Contributions (as defined below) of such
Certificateholder, such Certificateholder's distributive share of
gross income (if any) and any items in the nature of income or gain
which are specially allocated to such Certificateholder pursuant to
Section 2.12.
(b) Each Certificateholder's Capital Account shall be reduced
by any amount distributed to such Certificateholder (including, in
the case of the Depositor, any amount released or otherwise
distributed to the Depositor from the Reserve Account under Section
5.05(b) of the Sale and Servicing Agreement) and any items which are
specially allocated to such Certificateholder pursuant to Section
2.12.
(c) In the event all or a portion of a Certificate is
transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to
the extent it related to such Certificate or a portion thereof.
"Capital Contribution" means the amount of any cash contributed to
the Issuer by a Certificateholder [(including any amounts deemed to be
contributed in connection with the original issuance of the Certificates)],
including, in the case of the Depositor, the amount of any Receivables
contributed by the Depositor (with such amount for Receivables intended to
reflect the amount of the Receivables and monies due thereon or with respect
thereto, including accrued but unpaid interest and finance charges, conveyed to
the Issuer by the Depositor on the Closing Date under Article II of the Sale and
Servicing Agreement. The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with section 1.704-l(b) of the Treasury Regulations and shall be interpreted in
a manner consistent therewith.
20
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Issuer is
named as a party and each certificate or other document attached as an exhibit
to or contemplated by the Basic Documents to which the Issuer is named as a
party and any amendment thereto, in each case, in such form as the Depositor
shall approve as evidenced conclusively by the Owner Trustee's execution
thereof, and, on behalf of the Issuer at the written direction of the
Depositor, to direct the Trustee to authenticate and deliver Class A-1 Notes
in the aggregate principal amount of $________, and Class A-2 Notes in the
aggregate principal amount of $________. In addition to the foregoing, the
Owner Trustee is authorized, but shall not be obligated, to take all actions
required of the Issuer pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Administrator
recommends or directs in writing with respect to the Basic Documents.
SECTION 6.2 General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant
to the terms of this Agreement and the other Basic Documents and to administer
the Issuer in the interest of Certificateholders, subject to the Basic
Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee or
the Issuer hereunder or under any other Basic Document, and the Owner Trustee
shall not be liable for the default or failure of the Administrator to carry
out its obligations under the Administration Agreement.
SECTION 6.3 Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct the Owner Trustee in
the management of the Issuer. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any other Basic Document if (i)
the Owner Trustee shall have obtained an Opinion of Counsel to the effect that
such action is likely to result in liability on the part of the Owner Trustee
or is contrary to the terms hereof or of any other Basic Document or is
otherwise contrary to law and (ii) a copy of such opinion has been provided to
the Depositor and the Administrator.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
21
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 shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted, and to the extent the Owner Trustee acts in
good faith in accordance with any written instruction of the
Certificateholders received, the Owner Trustee shall not be liable on account
of such action to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement or
the other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall undertake to perform such duties and
only such duties as are specifically set forth in this Agreement and the other
Basic Documents, and no implied covenants or obligations shall be read into
this Agreement or the other Basic Documents. The Owner Trustee shall not have
any duty or obligation to manage, make any payment with respect to, register,
record, sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Owner Trustee is a party, except
as expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or file
any Commission filing for the Issuer or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge
any Liens on any part of the Owner Trust Estate that result from actions by,
or claims against, the Owner Trustee that are not related to the ownership or
the administration of the Owner Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use,
sell, dispose of or otherwise deal with any part of the Owner Trust
22
Estate except (i) in accordance with the powers granted to and the authority
conferred upon the Owner Trustee pursuant to this Agreement, (ii) in
accordance with the Basic Documents, and (iii) in accordance with any document
or instruction delivered to the Owner Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Owner Trustee shall not (a)take any
action that is inconsistent with the purposes of the Issuer set forth in
Section 2.3 or (b) take any action or amend this Agreement in any manner that,
to the best knowledge of the Owner Trustee, would result in the Trust's
becoming taxable as a corporation for Federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its
duties hereunder with respect to such trusts but only upon the
terms of this Agreement. The Owner Trustee also agrees to disburse
all moneys actually received by it constituting part of the Owner
Trust Estate upon the terms of the other Basic Documents and this
Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith
or negligence or (ii) in the case of the breach of any
representation or warranty contained in Section 7.3 expressly made
by the Owner Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding
sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner
Trustee unless it is proved that the Owner Trustee was negligent in
ascertaining the pertinent facts;
(b) The Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
the instructions of the Certificateholders given pursuant to Section
6.3;
(c) No provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in its own performance of any
of its rights or powers hereunder or under any other Basic Document
if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured or provided to it;
23
(d) Under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of
the Basic Documents, including the principal of and interest
on the Notes;
(e) The Owner Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Agreement or
for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of the
Owner Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of
authentication on the Certificates, shall not be accountable for the
use or application by the Depositor of the proceeds from the
Certificates, and the Owner Trustee shall in no event assume or incur
any liability, duty or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in
the Basic Documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality,
validity and enforceability of any Receivable, or the perfection and
priority of any security interest created by any Receivable in any
Financed Vehicle or the maintenance of any such perfection and
priority; or the ability of the Owner Trust Estate to generate the
payments to be distributed to Certificateholders under this Agreement
or the Noteholders under the Indenture, including: the existence,
condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents
of any Receivable on any computer or other record thereof; the
validity of the assignment of any Receivable to the Issuer or of any
intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the
Depositor or the Servicer with any warranty or representation made
under any Basic Document or in any related document or the accuracy
of any such warranty or representation or any action of the Trustee
or the Servicer or any subservicer taken in the name of the Owner
Trustee;
(f) The Owner Trustee shall not be liable for the default or
misconduct of the Trustee or the Servicer under any of the Basic
Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Issuer
under this Agreement or the Basic Documents that are required to be
performed by the Administrator under the Administration Agreement,
the Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement;
(g) The Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this
Agreement or otherwise or in relation to this Agreement or any other
Basic Document, at the request, order
24
or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any other Basic Document shall
not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful
misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Owner Trustee that shall be
specifically required to be furnished pursuant to any provision of
this Agreement or the other Basic Documents, shall examine them to
determine whether they conform to the requirements of this Agreement
or such other Basic Document; provided, however, that the Owner
Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document,
order or other instrument furnished to the Owner Trustee pursuant to
this Agreement or the other Basic Documents.
SECTION 7.2 Furnishing of Documents. The Owner Trustee shall furnish
to the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 7.3 Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and
validly existing in good standing under the laws of the
State of Delaware and having an office within the State of
Delaware. It has all requisite corporate power, authority
and legal right to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this
Agreement, and this Agreement will be executed and delivered
by one of its officers who is duly authorized to execute and
deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of
this Agreement, nor the consummation by it of the
transactions contemplated hereby nor compliance by it with
any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of
25
the Owner Trustee or any judgment, writ, decree or order
applicable to it, or constitute any default under its
charter documents or by-laws or, with or without notice or
lapse of time, any indenture, mortgage, contract, agreement
or instrument to which it is a party or by which any of its
properties may be bound.
(d) The execution, delivery and performance by the
Owner Trustee of this Agreement does not require the
authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or
agency regulating the corporate trust activities of the
Owner Trustee.
(e) This Agreement has been duly authorized,
executed and delivered by the Owner Trustee and shall
constitute the legal, valid, and binding agreement of the
Owner Trustee, enforceable in accordance with its terms.
SECTION 7.4 Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or
other document or paper believed by it to be genuine and believed by it to be
signed by the proper party or parties. The Owner Trustee may accept a
certified copy of a resolution of the board of directors or other governing
body of any corporate party as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect.
As to any fact or matter the method of the determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer, secretary or other authorized officers of the relevant party, as to
such fact or matter, and such certificate shall constitute full protection to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, but the
Owner Trustee shall be liable for the conduct or misconduct of such agents or
attorneys 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.
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SECTION 7.5 Not Acting in Individual Capacity. Except as provided in
this Article VII, 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 7.6 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of the Certificates or the Notes and may deal with the Depositor, the
Trustee and the Servicer in banking transactions with the same rights as it
would have if it were not the Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 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 Administrator
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 Certificateholders under this Agreement.
SECTION 8.2 Indemnification. The Administrator shall be liable as
primary obligor for, and shall indemnify the Owner Trustee 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 Administrator shall not be liable for or required to indemnify the
Owner Trustee from and against Expenses arising or resulting from any of the
matters described in the third sentence of Section 7.1. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any Indemnified Party in respect
of
27
which indemnity may be sought pursuant to this Section 8.2, such Indemnified
Party shall promptly notify the General Partner in writing, and the
Administrator upon request of the Indemnified Party, shall retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Administrator may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such
proceeding. The Administrator 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
Administrator agrees to indemnify any Indemnified Party from and against any
loss or liability by reason of such settlement or judgment. The Administrator
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 8.3 Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and the Issuer shall terminate and be of no further force
or effect, (i)the Distribution Date next succeeding the month which is six
months after the final distribution by the Owner Trustee of all moneys or
other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture, the Sale and Servicing Agreement and Article V,
including the payment to the Certificateholders of all amounts required to be
paid to them pursuant to this Agreement or (ii)at the time provided in Section
9.2; provided, however, that in no event shall the Trust created by this
Agreement continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Joseph P. Kennedy, the late ambassador to
the Court of St. James's, living on the date of this Agreement. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder or Certificate Owner (other than the General Partner as
provided in Section 9.2.) shall not (x)operate to terminate this Agreement or
the Issuer, nor (y)entitle such Certificateholder's or Certificate Owner's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Issuer or the Owner Trust Estate nor (z)otherwise affect the rights,
obligations and liabilities of the parties hereto.
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(b) Except as provided in clause (a), neither the Depositor
nor any Certificateholder shall be entitled to revoke or terminate
the Trust.
(c) Notice of any termination of the Issuer, specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee or the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner Trustee by letter
to the Certificateholders mailed within five Business Days of receipt of
notice of such termination from the Servicer given pursuant to Section 9.1(c)
of the Sale and Servicing Agreement, stating (i) the Distribution Date upon or
with respect to which final payment of the Certificates shall be made upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the Owner
Trustee or the Paying Agent therein designated, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the Owner
Trustee or the Paying Agent therein specified. The Owner Trustee shall give
such notice to the Certificate Registrar (if other than the Owner Trustee) and
the Paying Agent at the time such notice is given to the Certificateholders.
Upon presentation and surrender of the Certificates, the Owner Trustee or the
Paying Agent shall cause to be distributed to the Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Owner Trust Estate after exhaustion of such remedies shall be distributed,
subject to applicable escheat laws, by the Owner Trustee to the Depositor.
(d) Any funds remaining in the Issuer after funds for final
distribution have been distributed or set aside for distribution shall be
distributed by the Owner Trustee to the Depositor.
(e) Upon the winding up of the Issuer and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
29
SECTION 9.2 Dissolution upon Bankruptcy of the General Partner. In the
event that an Insolvency Event shall occur with respect to the General Partner,
this Agreement shall be terminated in accordance with Section9.1, 90 days after
the date of such Insolvency Event, unless, before the end of such 90-day period,
the Owner Trustee shall have received written instructions from the Noteholders
holding a majority of the Outstanding Amount of each of the Class A-1 Notes and
the Class A-2 Notes, the Certificateholders holding a majority of the
Certificate Balance (other than the General Partner) and the holders of a
majority of all interests in any Reserve Account (other than the General
Partner) to the effect that each such party disapproves of the liquidation of
the Receivables and termination of the Issuer. Promptly after the occurrence of
any Insolvency Event with respect to the General Partner, (i)the General Partner
shall give the Trustee and the Owner Trustee written notice such Insolvency
Event, (ii)the Owner Trustee shall, upon the receipt of such written notice from
the General Partner, give prompt written notice to the Certificate-holders of
the occurrence of such event, and (iii)the Trustee shall, upon receipt of
written notice of such Insolvency Event, give prompt written notice to the
Noteholders of the occurrence of such event: provided that any failure to give a
notice required by this sentence shall not prevent or delay, in any manner, a
termination of the Issuer pursuant to the first sentence of this Section 9.2.
Upon a termination pursuant to this Section, the Owner Trustee shall promptly
sell the assets of the Owner Trust Estate in a commercially reasonable manner
and on commercially reasonable terms. The net proceeds of such a sale of the
assets of the Issuer (after the costs and expenses of the Owner Trustee of such
sale) shall be treated as collections under the Sale and Servicing Agreement and
shall be distributed in accordance with Section 9.1(b) thereof.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation authorized to exercise corporate
trust powers; and having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by Federal or state
authorities. If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 10.2. In
addition, at all times the Owner Trustee or a co-trustee
30
shall be a person that satisfies the requirements of Section 3807(a) of the
Business Trust Statute (the "Delaware Trustee").
SECTION 10.2 Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the
Administrator. Upon receiving such notice of resignation, the
Administrator shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to
the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Owner
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy to the successor Owner Trustee and
payment of all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
SECTION 10.3 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or
removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect as if originally named as
the Owner Trustee. The predecessor Owner Trustee shall upon payment of its
fees and expenses deliver to the successor Owner Trustee all documents and
31
statements and monies held by it under this Agreement; and the Administrator
and the predecessor Owner Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Owner Trustee all such rights, powers,
duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice of the successor of such
Owner Trustee to all Certificateholders, the Trustee, the Noteholders and the
Rating Agencies. If the Administrator shall fail to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 10.4 Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
form any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Owner
Trustee, shall be the successor of the Owner Trustee hereunder,
provided such corporation shall be eligible pursuant to Section
10.1, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided further that the
Owner Trustee shall mail notice of such merger or consolidation to
the Rating Agencies.
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or separate trustee or separate trustees, of all or any part of
the Owner Trust Estate, and to vest in such Person, in such capacity, such
title to the Issuer, or any part thereof, and, subject to the other provisions
of this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If
the Administrator shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. If the Delaware Trustee shall become
incapable of acting, resign or be removed, unless the Owner Trustee is
qualified to act as the Delaware Trustee, a successor co-trustee shall
promptly be
32
appointed in the manner specified in this Section 10.5 to act as the Delaware
Trustee. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 10.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Issuer or any
portion thereof in any such jurisdiction) shall be exercised and
performed 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
33
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Owner Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments. This Agreement may be
amended by the Depositor, the General Partner and the Owner Trustee, with
prior written notice to the Rating Agencies, without the consent of any of the
Noteholders or the Certificateholders, to cure any ambiguity or defect, to
correct or supplement any provisions in this Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholders or the General Partner; provided that
such action shall not, as evidenced by an Opinion of Counsel, materially and
adversely affect the interests of any Noteholder or Certificateholder;
provided, further, that the Depositor shall deliver written notice of such
amendments to each Rating Agency prior to the execution of any such amendment.
Notwithstanding the foregoing, no amendment modifying the provisions of
Section 5.2 shall become effective without the prior written confirmation of
each of the Rating Agencies that such amendment will not result in a downgrade
or withdrawal of the then current rating assigned by each of them to the
Certificates.
This Agreement may also be amended from time to time by the
Depositor, the General Partner, and the Owner Trustee, with prior written
notice to the Rating Agencies, with the consent of the Holders of Notes
evidencing not less than 51% of the Outstanding Amount of the Notes and, to
the extent affected thereby, the consent of the Holders of Certificates
evidencing not less than 51% of the Certificate Balance for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or modifying in any manner the rights of the
Noteholders or the Certificateholders; provided that no such amendment shall
(a) increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Receivables or distributions that
shall be required to be made for the benefit of the Noteholders or the
Certificateholders, or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Balance required to consent to any
such amendment.
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment
or consent to each Certificateholder, the Trustee and each of the Rating
Agencies.
34
It shall not be necessary for the consent of Certificateholders or
the Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
(and any other consents of the Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization
of the execution thereof by the Certificateholders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
the Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of the Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Agreement. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest
therein only in accordance with Articles V and IX. No transfer, by operation
of law or otherwise, of any right, title or interest of the Certificateholders
to and in their ownership interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for
Sections 2.7 and 2.10, the provisions of this Agreement are solely
for the benefit of the Owner Trustee, the Depositor, the General
Partner, the Certificateholders and, to the extent expressly
provided herein, the Trustee and the Noteholders, and nothing in
this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained
herein.
SECTION 11.4 Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight courier
or mailed certified mail, return receipt requested and shall be deemed to have
been duly given upon receipt, if to the Owner Trustee, addressed to
__________________________ Attn: ___________________; if to the
35
Depositor, addressed to, _________________________________, Attn:
___________________; if to the General Partner, addressed to _______________,
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.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 11.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the General Partner, the Owner Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8 No Petition. The Owner Trustee (not in its individual
capacity but solely as the Owner Trustee), by entering into this Agreement,
each Certificateholder, by accepting a Certificate, and the Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby covenants and
agrees that it will not at any time institute against the General Partner, or
join in any institution against the General Partner of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Certificates, the Notes,
this Agreement or any of the Basic Documents.
SECTION 11.9 No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Issuer only and do not represent interests in or
obligations of the Depositor, the Servicer, the General Partner, the Owner
Trustee, the Trustee or
36
any Affiliate thereof, and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the other Basic Documents.
SECTION 11.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12 Certificate Transfer Restrictions. (a) The
Certificates may not be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) which
is subject to the provisions of Title I of ERISA, (ii) a plan (as
defined in Section 4975(e)(1) of the Code other than a governmental
or church plan described in Section 4975(g)(2) or (3) of the Code),
or (iii) any entity whose underlying assets include "plan assets"
by reason of any such plan's investment in the entity (excluding
any investment company that is registered under the Investment
Company Act of 1940, as amended) (each, a "Benefit Plan"). By
accepting and holding a Certificate, the Holder thereof shall be
deemed to have represented and warranted that it is not a Benefit
Plan, and that no assets of a Benefit Plan were used to acquire the
Certificate. The foregoing restrictions shall not apply to
acquisitions of Certificates with assets of the general account of an
insurance company, to the extent permitted under Section 401(c) of
ERISA.
(b) The Certificates may not be acquired by or for the
account of an individual or entity that is not a U.S. person as
defined in Section 7701(a)(30) of the Code and any transfer of a
Certificate to a person that is not a U.S. person shall be void.
By accepting and holding a Certificate, the Holder shall be deemed
to have represented and warranted under penalties of perjury that
it (or, if it is acting as a nominee, the beneficial owner) is a
U.S. person.
SECTION 11.13. Seller Payment Obligation. The Seller shall be
responsible for payment of the Administrator's fees under the Administration
Agreement (to the extent not paid pursuant to Section 5.5 of the Sale and
Servicing Agreement) and shall reimburse the Administrator for all expenses
and liabilities of the Administrator incurred thereunder.
[SECTION 11.14. References to the Depositor or Chase Manhattan Bank
USA, N.A. References herein to the Depositor or Chase Manhattan Bank USA, N.A.
shall refer to a national banking association having its principal executive
offices located at 200 Jericho Quadrangle, Jericho, New York 11759 and shall be
deemed to include any successor or assign of Chase USA in connection with the
Proposed Merger.]
37
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, N.A..
as the Depositor
By:
----------------------
Name:
Title:
as General Partner
By:
----------------------
Name:
Title:
Acknowledged and accepted
with respect to Section 9.2
of this Trust Agreement
- ------------------------------
not in its individual capacity, but
solely in its capacity as Trustee
By:
----------------------------
Name:
Title:
38
EXHIBIT A
NUMBER $
R- CUSIP NO.______
[THIS CERTIFICATE IS NOT TRANSFERRABLE]*
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) WHICH IS SUBJECT TO THE
PROVISIONS OF TITLEI OF ERISA, (ii) A PLAN (AS DEFINED IN SECTION4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OTHER THAN A PLAN
DESCRIBED IN SECTION4975(g)(2) OR (3) OF THE CODE), OR (iii) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY (EXCLUDING ANY INVESTMENT COMPANY THAT IS REGISTERED UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED). BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT SUCH A PLAN AND THAT NO
ASSETS OF SUCH A PLAN WERE USED TO ACQUIRE THIS CERTIFICATE. THE FOREGOING
RESTRICTIONS SHALL NOT APPLY TO ACQUISITIONS OF CERTIFICATES WITH ASSETS OF THE
GENERAL ACCOUNT OF AN INSURANCE COMPANY, TO THE EXTENT PERMITTED UNDER SECTION
401(c) OF ERISA.
THE CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN
INDIVIDUAL OR ENTITY THAT IS NOT A U.S. PERSON AS DEFINED IN SECTION
7701(A)(30) OF THE CODE. BY ACCEPTING AND HOLDING A CERTIFICATE, THE HOLDER
SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT (OR, IF IT IS ACTING
AS A NOMINEE, THE BENEFICIAL OWNER) IS A U.S. PERSON.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS
SET FORTH IN THE TRUST AGREEMENT ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.]
- --------
* To be included in the General Partner's 1% Certificate.
Exhibit A, Page 1
CHASE MANHATTAN AUTO OWNER TRUST 199_
___% ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Issuer, as defined below, the property of which includes a pool of retail
installment sale contracts or purchase money notes and security agreements
secured by new or used automobiles or light duty trucks and sold to the Issuer
by Chase Manhattan Bank USA, N.A., a national banking association.
(This Certificate does not represent an interest in or obligation of Chase
Manhattan Bank USA, N.A. or any of its Affiliates, except to the extent
described below.)
THIS CERTIFIES THAT ___________________________ is the registered
owner of __________________ DOLLARS nonassessable, fully-paid, beneficial
ownership interest in certain distributions of Chase Manhattan Auto Owner
Trust 199_-_ (the "Issuer") formed by Chase Manhattan Bank USA, N.A., a
national banking association (the "Depositor"). This Certificate has a
Certificate Rate of ___% per annum.
Exhibit A, Page 2
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
- ------------------------ -----------------------------
or
as Owner Trustee as Owner Trustee
By:
--------------------------
Authenticating Agent
By:---------------------
Exhibit A, Page 3
Issuer was created pursuant to a Trust Agreement dated as of _____,
199_ (the "Trust Agreement"), among the Depositor, ____________, as General
Partner (the "General Partner") and _____________________, as owner trustee
("Owner Trustee"), a summary of certain of the pertinent provisions of which
is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in Section
1.1 of the Sale and Servicing Agreement between the Issuer and Chase Manhattan
Bank USA, N.A., as Seller and Servicer, dated as of _____, 199_, as the same
may be amended or supplemented from time to time.
This Certificate is one of the duly authorized Certificates
designated as "___% Asset Backed Certificates" (herein called the
"Certificates"). Also issued under the Indenture dated as of _________, 199__,
between the Issuer and ____________________, as trustee, are two classes of
Notes designated as "Class A-1 ___% Asset Backed Notes" (the "Class A-1
Notes"), and "Class A-2 ___% Asset Backed Notes" (the "Class A-2 Notes" and,
together with the Class A-1 Notes, the "Notes"). This Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue
of the acceptance hereof assents and by which such holder is bound.
The holder of this Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Certificate are
subordinated to the rights of the Noteholders as described in the Sale and
Servicing Agreement, the Indenture and the Trust Agreement, as applicable.
It is the intent of the Depositor, the General Partner and
Certificateholders that, for purposes of Federal income taxes, the Issuer will
be treated as a partnership and the Depositor, the General Partner and the
Certificateholders will be treated as partners in that partnership. The
Certificateholders by acceptance of a Certificate, agree to treat, and to take
no action inconsistent with the treatment of, the Certificates for such tax
purposes as partnership interests in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the General Partner, or join in any institution against the General Partner
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, the Trust Agreement or any of the Basic Documents.
Each Certificateholder, by its acceptance of a Certificate or a
beneficial interest in a Certificate, acknowledges and agrees that the General
Partner is authorized to determine whether or not
Exhibit A, Page 4
to cause the Issuer to make the election contemplated in Internal Revenue
Service Notice 95-14 to elect that the trust be classified as a partnership
for Federal income tax purposes in the event that the ability to make such
election becomes available to the Issuer, and acknowledges and agrees that the
General Partner is authorized to direct the Owner Trustee to take such acts or
actions as may be required to effectuate such election. Each
Certificateholder, by its acceptance of a Certificate or a beneficial interest
in a Certificate, agrees to take such actions (and direct the Owner Trustee to
take such acts or actions) as the General Partner or the Owner Trustee shall
reasonably request in order to effectuate such election.
The Certificates do not represent an obligation of, or an interest
in, the Depositor, the Servicer, the General Partner, the Owner Trustee, the
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the other
Basic Documents.
This certificate may not be acquired by or for the account of (i) an
employee benefit plan (as defined in section3(3) of the employee retirement
income security act of 1974, as amended ("ERISA")) which is subject to the
provisions of titlei of erisa, (ii) a plan (as defined in Section4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the "Code") other than a plan
described in Section4975(g)(2) or (3) of the code), or (iii) any entity whose
underlying assets include "plan assets" by reason of a plan's investment in
the entity (excluding any investment company that is registered under the
Investment Company Act of 1940, as amended). By accepting and holding this
Certificate, the holder hereof and the Certificate Owner shall each be deemed
to have represented and warranted that it is not such a plan and that no
assets of such a plan were used to acquire this Certificate. The foregoing
restrictions shall not apply to acquisitions of Certificates with assets of the
general account of an insurance company, to the extent permitted under Section
401(c) of ERISA.
The Certificates may not be acquired by or for the account of an
individual or entity that is not a U.S. Person as defined in Section
7701(A)(30) of the Code. By accepting and holding a Certificate, the Holder
shall be deemed to have represented and warranted that it (or, if it is acting
as a Nominee, the Beneficial Owner) is a U.S. Person.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, 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.
Exhibit A, Page 5
IN WITNESS WHEREOF, the Owner Trustee, on behalf of Issuer and not in
its individual capacity, has caused this Certificate to be duly executed.
CHASE MANHATTAN AUTO
OWNER TRUST 199__
By:
-----------------------
not in its individual
capacity, but solely as
Owner Trustee
Dated: By:
------------------------
Exhibit A, Page 6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code,
of assignee)
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
___________________________________________ Attorney to transfer said
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
*
----------------------------------
Signature Guaranteed:
*
----------------------------------
- --------
* NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by a member
firm of the New York Stock Exchange or a commercial bank or trust
company.
Exhibit A, Page 7
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
CHASE MANHATTAN AUTO OWNER TRUST 199_-_
THIS Certificate of Trust of Chase Manhattan Auto Owner Trust 199_-_
(the "Trust"), dated as of _____, 199_, is being duly executed and filed by
_____________________, a ___________ banking corporation, and
____________________, a ___________________, as trustees, to form a business
trust under the Delaware Business Trust Act (13 DelCode, Section 3801 et seq.).
(a) Name. The name of the business trust formed hereby is
CHASE MANHATTAN AUTO OWNER TRUST 199_-_.
(b) Delaware Trustee. The name and business address of the
trustee of the Trust resident in the State of Delaware is ______.
(c) This Certificate of Trust will be effective _____, 199_.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
By:
------------------------------,
not in its individual capacity,
but solely as owner trustee of
the Trust.
By:
------------------------------
Name:
Title:
Exhibit B, Page 1
EXHIBIT C
CERTIFICATE DEPOSITORY AGREEMENT
Exhibit C, Page 1