Exhibit 4.10
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CHASE CREDIT CARD OWNER TRUST 2004-2
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of June 1, 2004
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
SECTION 1.1. Capitalized Terms...............................................1
ARTICLE II. ORGANIZATION
SECTION 2.1. Name............................................................4
SECTION 2.2. Office..........................................................4
SECTION 2.3. Purposes and Powers.............................................4
SECTION 2.4. Appointment of Owner Trustee....................................5
SECTION 2.5. Initial Capital Contribution of Trust Estate....................5
SECTION 2.6. Declaration of Trust............................................5
SECTION 2.7. Title to Owner Trust Property...................................6
SECTION 2.8. Situs of Owner Trust............................................6
SECTION 2.9. Representations and Warranties of the Depositor.................6
SECTION 2.10. Liability of Certificateholder.................................7
ARTICLE III. CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership...............................................7
SECTION 3.2. The Certificate.................................................7
SECTION 3.3. Execution, Authentication and Delivery of Certificates..........8
SECTION 3.4. Restrictions on Transfer........................................8
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate................8
SECTION 3.6. Authenticating Agent............................................9
SECTION 3.7. Actions of Certificateholder...................................10
ARTICLE IV. ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to
Certain Matters..............................................10
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority..............................................11
SECTION 5.2. General Duties.................................................11
SECTION 5.3. Action upon Instruction........................................12
SECTION 5.4. No Duties Except as Specified in this Agreement or
in Instructions..............................................12
SECTION 5.5. No Action Except under Specified Documents or Instructions.....13
SECTION 5.6. Restrictions...................................................13
SECTION 5.7. Doing Business in Other Jurisdictions..........................13
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ARTICLE VI. CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties................................14
SECTION 6.2. Furnishing of Documents........................................15
SECTION 6.3. Representations and Warranties.................................15
SECTION 6.4. Reliance; Advice of Counsel....................................16
SECTION 6.5. Not Acting in Individual Capacity..............................17
SECTION 6.6. Owner Trustee May Own Notes....................................17
ARTICLE VII. COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses..............................17
SECTION 7.2. Indemnification................................................17
SECTION 7.3. Payments to Owner Trustee......................................18
ARTICLE VIII. TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement.................................18
ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee.....................19
SECTION 9.2. Resignation or Removal of Owner Trustee........................20
SECTION 9.3. Successor Owner Trustee........................................20
SECTION 9.4. Merger or Consolidation of Owner Trustee.......................21
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee..................21
ARTICLE X. MISCELLANEOUS
SECTION 10.1. Supplements and Amendments....................................23
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholder.....24
SECTION 10.3. Limitations on Rights of Others...............................24
SECTION 10.4. Notices.......................................................24
SECTION 10.5. Severability..................................................25
SECTION 10.6. Separate Counterparts.........................................25
SECTION 10.7. Successors and Assigns........................................25
SECTION 10.8. Nonpetition Covenants. ......................................25
SECTION 10.9. No Recourse...................................................25
SECTION 10.10. Headings.....................................................25
SECTION 10.11. GOVERNING LAW................................................25
SECTION 10.12. Depositor Payment Obligation.................................26
SECTION 10.13. Acceptance of Terms of Agreement.............................26
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SECTION 10.14. Compliance with Sarbanes-Oxley Act of 2002...................26
SECTION 10.15. Integration of Documents.....................................26
EXHIBITS
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate of Trust
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TRUST AGREEMENT dated as of June 1, 2004 between CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION ("Chase USA"), a national banking association having
its principal executive offices located at White Clay Center Building 200,
Route 273, Newark, Delaware 19711, as the depositor (in its capacity as the
depositor, the "Depositor") and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as the owner trustee (the "Owner Trustee").
ARTICLE I.
DEFINITIONS
SECTION 1.1 Capitalized Terms. (a) For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Administrator" means Chase Manhattan Bank USA, National Association,
or any successor Administrator under the Deposit and Administration Agreement.
"Agreement" means this Chase Credit Card Owner Trust 2004-2 Trust
Agreement, as the same may be amended, modified or otherwise supplemented from
time to time.
"Basic Documents" means the Indenture, this Agreement, the Deposit
and Administration Agreement, the Note Underwriting Agreement, and other
documents delivered in connection herewith and therewith.
"Certificate" means the certificate evidencing the beneficial
interest of the Certificateholder in the Owner Trust, substantially in the
form attached hereto as Exhibit A.
"Certificateholder" means Chase Manhattan Bank USA, National
Association, and its successors and permitted assigns.
"Certificate of Trust" means the Certificate of Trust in the form
attached hereto as Exhibit B which has been filed for the Owner Trust pursuant
to Section 3810(a) of the Statutory Trust Act.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at Rodney
Square North, 1100 North Market Street, Wilmington, DE 19890; or such other
address as the Owner Trustee may designate by notice to the Depositor, or the
principal corporate trust office of any successor Owner Trustee (the address
of which the successor Owner Trustee will notify the Certificateholder and the
Depositor).
"Deposit and Administration Agreement" means the Deposit and
Administration Agreement, dated as of June 1, 2004, by and between the Owner
Trust and Chase Manhattan Bank USA, National Association, as Depositor and as
Administrator, as the same may be amended, supplemented or otherwise modified
from time to time.
"Depositor" means Chase Manhattan Bank USA, National Association, in
its capacity as Depositor hereunder and its successors and assigns in such
capacity.
"Expenses" has the meaning assigned to such term in Section 7.2.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2.
"Indenture Trustee" means The Bank of New York, not in its individual
capacity but solely as Indenture Trustee under the Indenture, and any
successor Indenture Trustee under the Indenture.
"Master Trust" means the Chase Master Credit Card Trust, created
pursuant to the Third Amended and Restated Pooling and Servicing Agreement
dated as of November 15, 1999, as amended by the First Amendment thereto dated
as of March 31, 2001, and the Second Amendment thereto, dated as of March 1,
2002, by and among Chase USA, as transferor on and after June 1, 1996,
JPMorgan Chase Bank, as transferor prior to June 1, 1996 and as servicer, and
The Bank of New York, as trustee.
"Note Underwriting Agreement" means the Note Underwriting Agreement,
dated as of May 21, 2004, by and between Chase Manhattan Bank USA, National
Association (the "Bank") and J.P. Morgan Securities Inc. and Banc One Capital
Markets, Inc., as representatives of the several Underwriters named therein
(collectively, the "Underwriters") together with the Terms Agreement attached
thereto between the Bank and the Underwriters, dated as of May 21, 2004, as
the same may be amended, supplemented or otherwise modified from time to time.
"Noteholder" has the meaning assigned to such term in the Indenture.
"Owner Trust" means the statutory trust created by this Agreement and
the filing of the Certificate of Trust.
"Owner Trust Estate" means all right, title and interest of the Owner
Trust, in and to the property and rights assigned to the Owner Trust, pursuant
to Section 2.5 of this Agreement and Section 2.1 of the Deposit and
Administration Agreement, all monies, securities, instruments and other
property on deposit from time to time in the accounts established hereunder
and all other property of the Owner Trust from time to time, including any
rights of the Owner Trustee on behalf of the Owner Trust pursuant to the
Deposit and Administration Agreement.
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"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee for
the Chase Credit Card Owner Trust 2004-2 under this Agreement (unless
otherwise specified herein), and any successor Owner Trustee hereunder.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulations, or determination of an arbitrator or Governmental Authority, in
each case applicable to or binding upon such Person or to which such Person is
subject, whether federal, state or local (including without limitation, usury
laws, the federal Truth in Lending Act and Regulation Z and Regulation B of
the Board of Governors of the Federal Reserve System).
"Secretary of State" means the Secretary of State of the State of
Delaware.
"SFAS 140" means Statement of Financial Accounting Standards No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities.
"Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. section 3801, et. seq., as the same may be amended from time
to time.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
not defined in this Agreement or in any such certificate or other document,
and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with
the meanings of such terms under generally accepted accounting principles, the
definitions contained in this Agreement or in any such certificate or other
document shall control.
(d) The words "hereof," "herein," "hereunder," and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
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(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
(f) Capitalized terms used but not defined herein shall
have the meanings assigned to them in an indenture, dated as of June 1, 2004
(the "Indenture"), by and between the Owner Trust and the Bank of New York, as
Indenture Trustee.
ARTICLE II.
ORGANIZATION
SECTION 2.1 Name. The trust created hereby shall be known
as "Chase Credit Card Owner Trust 2004-2" (hereinafter, the "Owner Trust") 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 on behalf of the Owner Trust.
SECTION 2.2 Office. The office of the Owner Trust shall be
in care of the Owner Trustee at the Corporate Trust Office or at such other
address as the Owner Trustee may designate by written notice to the
Certificateholder and the Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Owner
Trust is, and the Owner Trust shall have the power and authority to engage in
the following activities:
(a) to issue the Notes in the name of the Owner Trust
pursuant to the Indenture and the Certificate pursuant to this Agreement, and
to sell, transfer or exchange the Notes and the Certificate;
(b) to acquire the property and assets set forth in the
Deposit and Administration Agreement from the Depositor pursuant to the terms
thereof, to make payments or distributions on the Notes and the Certificate
and to make deposits to and withdrawals from the Reserve Account and other
accounts established under the Indenture;
(c) to assign, grant, transfer, pledge, mortgage and
convey the Owner Trust Estate to the Indenture Trustee pursuant to the
Indenture and to hold, manage and distribute to the Certificateholder pursuant
to the terms of the Deposit and Administration Agreement any portion of the
Owner Trust Estate released from the Lien of, and remitted to the Owner Trust
pursuant to, the Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to
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which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith, which activities
cannot be contrary to the status of the Owner Trust as a "qualifying special
purpose entity" under SFAS 140 and any successor rule thereto; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions to the
Certificateholder and the Noteholders, which activities cannot be contrary to
the status of the Owner Trust as a "qualifying special purpose entity" under
SFAS 140 and any successor rule thereto.
Neither the Owner Trustee, nor the Owner Trust, shall engage in any activity
other than in connection with the foregoing or other than as required or
authorized by the terms of this Agreement or the other Basic Documents. For
purposes of SFAS 140, the parties hereto intend that (a) the Owner Trust shall
be treated as a "qualifying special purpose entity" as such term is used in
SFAS 140 and any successor rule thereto and (b) the power and authority of the
Owner Trust as stated this Section 2.3 shall be limited in accordance with
paragraph 35 of SFAS 140.
SECTION 2.4. Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Owner Trust effective as
of the date hereof, to have all the rights, powers and duties set forth herein
and in the Statutory Trust Act.
SECTION 2.5. Initial Capital Contribution of Trust Estate.
The Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate. The Depositor shall pay the organizational expenses of the Owner Trust
as they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.6. Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholder, subject to the obligations of the Owner Trustee, on behalf
of the Owner Trust, under the Basic Documents. It is the intention of the
parties hereto that the Owner Trust constitute a statutory trust under the
Statutory Trust Act and that this Agreement constitutes the governing
instrument of such statutory trust. It is the intention of the parties hereto
that, solely for United States income and franchise tax purposes, the Owner
Trust shall be treated as a division or branch of the Depositor. The parties
agree that, unless otherwise required by appropriate tax authorities, they
will take no action contrary to the foregoing intention. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and
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duties set forth herein and to the extent not inconsistent herewith, in the
Statutory Trust Act with respect to accomplishing the purposes of the Owner
Trust. The Owner Trustee shall file the Certificate of Trust with the
Secretary of State of Delaware.
SECTION 2.7. Title to Owner Trust Property. Legal title to
all the Owner Trust Estate shall be vested at all times in the Owner Trust,
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in the Owner Trustee, a co-trustee or a
separate trustee, in which case title to such part shall be deemed to be
vested in the Owner Trustee, a co-trustee and/or separate trustee, as the case
may be.
SECTION 2.8. Situs of Owner Trust. The Owner Trust will be
located in the State of Delaware and administered in the State of Delaware or
the State of New York. All bank accounts maintained on behalf of the Owner
Trust shall be located in the State of Delaware or the State of New York.
Payments will be received by the Owner Trust only in Delaware or New York, and
payments and distributions will be made by the Owner Trust only from Delaware
or New York. The only office of the Owner Trust will be at the Corporate Trust
Office of the Owner Trustee in Delaware.
SECTION 2.9. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Depositor has been duly organized and is validly
existing as a national banking association in good standing under
the laws of the United States of America, with power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted.
(ii) The Depositor has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Owner
Trustee pursuant to this Agreement and the Deposit and
Administration Agreement, on behalf of the Owner Trust, and the
Depositor has duly authorized such sale and assignment and deposit
to the Owner Trustee, on behalf of the Owner Trust, by all necessary
action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary
action.
(iii) The consummation of the transactions contemplated by
this Agreement and the other Basic Documents and the fulfillment of
the terms hereof, do not conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of
association or bylaws of the Depositor, or conflict with or breach
any of the material terms or provisions of or constitute (with or
without notice or lapse of time) a default under any indenture,
agreement or other instrument to which the Depositor is a party or
by which it is bound;
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nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument; nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to
the Depositor of any court or of any Federal or state regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(iv) There are no proceedings or investigations pending or,
to the best knowledge of the Depositor, threatened against the
Depositor before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality having
jurisdiction over the Depositor (i) asserting the invalidity of any
of the Basic Documents to which the Depositor is a party, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by any of the Basic Documents, to which the Depositor
is a party, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Depositor, would materially and adversely
affect the performance by the Depositor of its obligations under the
Basic Documents to which the Depositor is a party, or (iv) seeking
any determination or ruling that would materially and adversely
affect the validity or enforceability of the Basic Documents to
which the Depositor is a party.
SECTION 2.10. Liability of Certificateholder. To the
fullest extent permitted by applicable law, the Certificateholder shall not
have any personal liability for any liability or obligation of the Owner
Trustee or the Owner Trust.
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the
Owner Trust by the contribution by the Depositor pursuant to Section 2.5, the
Depositor shall be the sole beneficial owner of the Owner Trust. Upon the
issuance of the Certificate (as described below), the Certificateholder shall
be the beneficial owner of the Owner Trust.
SECTION 3.2. The Certificate. (a) The Certificate shall be
issued substantially in the form of Exhibit A, which is incorporated by
reference herein. The Certificate shall be executed on behalf of the Owner
Trust by manual or facsimile signature of an Authorized Officer or other
authorized signatory of the Owner Trustee. A Certificate bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Owner Trust,
shall be validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the authentication and delivery of such Certificate or
did not hold such offices at the date of authentication and delivery of such
Certificate. The Certificate
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shall not entitle its Holder to any benefit under this Agreement, or be valid
for any purpose, unless there shall appear on such Certificate a certificate
of authentication substantially in the form set forth in Exhibit A, executed
by the Owner Trustee, or the Owner Trustee's authentication agent, by manual
or facsimile signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and
delivered hereunder. The Certificate shall be dated the date of its
authentication.
(b) The Certificateholder shall be entitled to receive
distributions from the Owner Trust Estate only in accordance with this
Agreement and the Deposit and Administration Agreement. In no event shall the
Depositor or the Certificateholder be entitled to possession of, or be
permitted to encumber any part of, the Owner Trust Estate.
SECTION 3.3. Execution, Authentication and Delivery of
Certificates. Concurrently with the initial deposit of the Series Certificate
with the Owner Trustee, on behalf of the Owner Trust, pursuant to the Deposit
and Administration Agreement, the Owner Trustee shall cause the Certificate to
be executed on behalf of the Owner Trust, authenticated and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president or any vice president, without further action by the Depositor.
SECTION 3.4. Restrictions on Transfer. To the fullest
extent permitted by applicable law, the Certificate (or any interest therein)
may not be sold, transferred, assigned, participated, pledged or otherwise
disposed of by the Depositor to any Person.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificate. If (a) the mutilated Certificate shall be surrendered to the
Owner Trustee, or if the Owner Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of the Certificate and (b)
there shall be delivered to the Owner Trustee such security or indemnity as
may be required by it to save it harmless, then the Owner Trustee shall
execute and the Owner Trustee, or the Owner Trustee's authenticating agent,
shall authenticate and deliver, in exchange for or in lieu of the mutilated,
destroyed, lost or stolen Certificate, a new Certificate. In connection with
the issuance of any new Certificate under this Section 3.5, the Owner Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive
evidence of a beneficial interest in the Owner Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time. The provisions of this Section 3.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of the mutilated, destroyed, lost or stolen Certificate.
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SECTION 3.6. Authenticating Agent. (a) The Owner Trustee may
appoint one or more authenticating agents with respect to the Certificate
which shall be authorized to act on behalf of the Owner Trustee in
authenticating the Certificate in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the Certificate. Whenever
reference is made in this Agreement to the authentication of the Certificate
by the Owner Trustee or the Owner Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Owner Trustee by an authenticating agent and a certificate of authentication
executed on behalf of the Owner Trustee by an authenticating agent. Each
authenticating agent shall be subject to acceptance by the Depositor.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating
agent without the execution or filing of any paper or any further act on the
part of the Owner Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Owner Trustee and the Depositor.
The Owner Trustee may at any time terminate the agency of an authenticating
agent by giving notice of termination to such authenticating agent and to the
Depositor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
acceptable to the Owner Trustee or the Depositor, the Owner Trustee promptly
may appoint a successor authenticating agent with the consent of the
Depositor. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an authenticating agent.
(d) The Depositor shall pay the authenticating agent from
time to time reasonable compensation for its services under this Section 3.6.
(e) The provisions of Sections 6.1, 6.3, 6.4, 6.6, 7.1 and
7.2 shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
3.6, the Certificate may have endorsed thereon, in lieu of the Owner Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is the Certificate referred to in the within-mentioned Trust
Agreement.
or
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
not in its individual capacity not in its individual capacity
but solely as Owner Trustee for the but solely as Owner Trustee for the
Chase Credit Card Owner Trust 2004-2 Chase Credit Card Owner Trust 2004-2
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By: ______________________________
Authenticating Agent
By: ______________________________ By: ______________________________
Authorized Signatory Authorized Signatory
SECTION 3.7. Actions of Certificateholder. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Agreement to be given or taken by the Certificateholder may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by the Certificateholder in person or by agent duly
appointed in writing; and except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Owner Trustee and, when required, to the Depositor or the
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Owner Trustee, the Depositor and the Servicer, if
made in the manner provided in this Section 3.7.
(b) The fact and date of the execution by the
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Owner Trustee deems sufficient.
(c) The Owner Trustee may require such additional proof of
any matter referred to in this Section 3.7 as it shall deem necessary.
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholder with Respect
to Certain Matters. With respect to the following matters, the Owner Trustee
shall not take action unless at least 30 days before the taking of such
action, the Owner Trustee shall have notified the Certificateholder in writing
of the proposed action:
(a) the initiation of any claim or lawsuit on behalf of
the Owner Trust (except claims or lawsuits brought to collect on the Series
Certificate) and the compromise of any material action, claim or lawsuit
brought by or against the Owner Trust or the Owner Trustee (except with
respect to the aforementioned claims or lawsuits to collect on the Series
Certificate);
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(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
Statutory Trust Act);
(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
Certificateholder;
(e) the amendment, change or modification of the Deposit
and Administration Agreement, except any amendment where the consent of the
Certificateholder is not required under the terms of the Deposit and
Administration Agreement; or
(f) the appointment pursuant to the Indenture of a
successor Indenture Trustee or the consent to the assignment by the Note
Registrar, the Paying Agent, the Indenture Trustee or the Certificate
Registrar of its obligations under the Indenture.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Paying Agent, Authenticating Agent or Certificate
Registrar within five Business Days thereof.
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1 General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which
the Owner Trust, is to be a party and each certificate or other document
required to be executed on behalf of the Owner Trust that is attached as an
exhibit to or contemplated by the Basic Documents or any amendment thereto or
other agreement, in each case, in such form as the Depositor shall approve as
evidenced conclusively by the Owner Trustee's execution thereof and the
Depositor's execution of the related documents. In addition to the foregoing,
the Owner Trustee is authorized to take all actions required to be taken on
behalf of the Owner Trust pursuant to the Basic Documents. The Owner Trustee
is further authorized from time to time to take such action as the
Administrator directs in writing with respect to the Basic Documents, except
to extent that the Basic Documents expressly require the consent of the
Depositor for such action.
SECTION 5.2. General Duties. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other Basic
Documents and to administer the Owner Trust in the interest of the
Certificateholder, subject to the Basic Documents and in accordance with the
provisions of
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this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the Deposit
and Administration Agreement to perform any act or to discharge any duty of
the Owner Trustee or the Owner Trust hereunder or under any other Basic
Document, and the Owner Trustee shall not be liable for the default or failure
of the Administrator to carry out its obligations under the Deposit and
Administration Agreement.
SECTION 5.3. Action upon Instruction. (a) The
Certificateholder may, by written instruction, direct the Owner Trustee in the
management of the Owner Trust. Such direction may be exercised at any time by
written instruction of the Certificateholder.
(b) Notwithstanding the foregoing, the Owner Trustee shall
not be required to take any action hereunder or under any other Basic Document
if the Owner Trustee shall reasonably determine, or shall have been advised by
counsel in writing, that such action is likely to result in personal liability
to the Owner Trustee (in such capacity or individually), is contrary to the
terms of this Agreement or any other Basic Document or is contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or any other Basic Document or is unsure as to the application of
any provision of this Agreement or any other Basic Document, or if any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholder requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholder received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall
deem to be in the best interests of the Certificateholder, and shall have no
liability to any Person for such action or inaction.
SECTION 5.4. No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall undertake to perform
such duties and only such duties as are specifically set forth in this
Agreement and the other Basic Documents, and no implied covenants or
obligations shall be read into this Agreement or the other Basic Documents.
The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise deal
with the Owner Trust Estate, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated
12
hereby to which the Owner Trustee is a party, except as expressly provided by
the terms of this Agreement or in any document or written instruction received
by the Owner Trustee pursuant to Section 5.3; and no implied duties or
obligations shall be read into this Agreement or any other Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder or to prepare or file any filing for
the Owner Trust with the Securities and Exchange Commission or to record this
Agreement or any other Basic Document. The Owner Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Owner Trust Estate that
result from actions by, or claims against, the Owner Trustee, in its
individual capacity, that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 5.5. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents, and (iii) in accordance with any document or instruction delivered
to the Owner Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not (a)
take any action that is inconsistent with the purposes of the Owner Trust set
forth in Section 2.3 or (b) take any action or amend this Agreement in any
manner that, to the actual knowledge of a Responsible Officer of the Owner
Trustee, would result in the Owner Trust becoming taxable as a corporation for
United States federal income tax purposes. The Certificateholder shall not
direct the Owner Trustee to take action that would violate the provisions of
this Section.
SECTION 5.7. Doing Business in Other Jurisdictions. (a)
Notwithstanding anything contained herein to the contrary, the Owner Trustee
shall not be required to take any action in any jurisdiction other than in the
State of Delaware, other than as set forth in the last sentence of this
Section 5.7, if the taking of such action will (i) require the consent or
approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state
or other governmental authority or agency of any jurisdiction other than the
State of Delaware; (ii) result in any fee, tax or other governmental charge
under the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware becoming payable
by the Owner Trustee; or (iii) subject the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes
of action arising from acts unrelated to the consummation of the transactions
by the Owner Trustee, as the case may be, contemplated hereby. The Owner
Trustee shall be entitled to obtain advice of counsel (which advice shall be
an expense of the Depositor) to determine whether any action required to be
taken pursuant to this Agreement results in the consequences described in
clauses (i), (ii) and (iii) of the preceding sentence. In the event that said
counsel advises the Owner
13
Trustee that such action will result in such consequences, the Owner Trustee
will, at the expense of the Depositor, appoint an additional trustee pursuant
to Section 9.5 to proceed with such action.
ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Owner Trust Estate upon the terms of
the other Basic Documents and this Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or gross
negligence or (ii) in the case of the breach of any representation or warranty
contained in Section 6.3 expressly made by the Owner Trustee. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee
unless it is proved that the Owner Trustee was grossly negligent in
ascertaining the pertinent facts;
(b) The Owner Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with the
instructions of the Certificateholder given pursuant to Section 5.3;
(c) No provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in its own performance of any of its rights or
powers hereunder or under any other Basic Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Agreement or
for the due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust Estate
or for or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Certificate, shall not be
accountable for the use
14
or application by the Depositor of the proceeds from the Certificate, and the
Owner Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to the Certificateholder, other than as
expressly provided for herein and in the other Basic Documents;
(f) The Owner Trustee shall not be liable for the default
or misconduct of the Indenture Trustee, the Administrator or the Servicer
under any of the Basic Documents or otherwise, and the Owner Trustee shall
have no obligation or liability to perform the obligations to be performed on
behalf of the Owner Trust under this Agreement or the other Basic Documents
that are required to be performed by the Administrator under the Deposit and
Administration Agreement or the Indenture Trustee under the Indenture;
(g) The Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise
or in relation to this Agreement or any other Basic Document, at the request,
order or direction of the Certificateholder, unless the Certificateholder has
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any other Basic Document
shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its gross negligence, bad faith or willful
misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically required
to be furnished pursuant to any provision of this Agreement or the other Basic
Documents, shall examine them to determine whether they conform to the
requirements of this Agreement or such other Basic Document; provided,
however, that the Owner Trustee shall not be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished to the Owner Trustee pursuant to
this Agreement or the other Basic Documents.
SECTION 6.2. Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholder promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Basic Documents.
SECTION 6.3. Representations and Warranties. Wilmington
Trust Company, in its individual capacity, hereby represents and warrants to
the Depositor, for the benefit of the Certificateholder, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and having
an office within the State of
15
Delaware. It has all requisite corporate power, authority and legal right to
execute, deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or any judgment,
writ, decree or order applicable to it, or constitute any default under its
charter documents or by-laws or, with or without notice or lapse of time, any
indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound.
(d) The execution, delivery and performance by Wilmington
Trust Company of this Agreement does not require the authorization, consent,
or approval of, the giving of notice to, the filing or registration with, or
the taking of any other action in respect of, any governmental authority or
agency of the State of Delaware or the United States of America regulating the
corporate trust activities of Wilmington Trust Company.
(e) This Agreement has been duly authorized, executed and
delivered by Wilmington Trust Company and shall constitute the legal, valid,
and binding agreement of Wilmington Trust Company, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization and other laws affecting the rights of creditors
generally, and by general principles of equity regardless of whether
enforcement is pursuant to a proceeding in equity or at law.
(f) It will comply with all of the requirements of Section
3807(a) of the Statutory Trust Act relating to the qualification of a trustee
for a Delaware statutory trust.
SECTION 6.4. Reliance; Advice of Counsel. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer, secretary or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or
omitted to
16
be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or the other Basic Documents, the Owner Trustee (i) may act directly
or through its agents or attorneys pursuant to agreements entered into with
any of them, and the Owner Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee with due care and (ii) may consult with
counsel, accountants and other skilled persons knowledgeable in the relevant
area to be selected with reasonable care and employed by it. The Owner Trustee
shall not be liable for anything done, suffered or omitted in good faith by it
in accordance with the written opinion or advice of any such counsel,
accountants or other such persons and not contrary to this Agreement or any
other Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as
provided in this Article VI, in accepting the trusts hereby created,
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee for the Chase Credit Card Owner Trust 2004-2, acts solely as the Owner
Trustee hereunder and not in its individual capacity and all Persons having
any claim against the Owner Trustee by reason of the transactions contemplated
by this Agreement or any other Basic Document shall look only to the Owner
Trust Estate for payment or satisfaction thereof.
SECTION 6.6. Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of the Notes and may deal with the Depositor, the Indenture Trustee
and the Servicer in banking transactions with the same rights as it would have
if it were not the Owner Trustee.
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon before the date hereof between the Depositor
and the Owner Trustee, and the Owner Trustee shall be entitled to be
reimbursed by the Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder except any such expenses as may arise from its gross negligence,
wilful misfeasance, or bad faith or that is the responsibility of the
Certificateholder under this Agreement.
SECTION 7.2. Indemnification. The Depositor shall be
liable as primary
17
obligor for, and shall indemnify the Owner Trustee (in such capacity or
individually) and its successors, assigns, agents and servants (collectively,
the "Indemnified Parties") from and against, any and all liabilities,
obligations, losses, damages, taxes, claims, actions and suits, and any and
all reasonable costs, expenses and disbursements (including reasonable legal
fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the other Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder, except only that the Depositor shall not be
liable for or required to indemnify the Owner Trustee from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 6.1. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any Indemnified Party in respect of which indemnity may be sought
pursuant to this Section 7.2, such Indemnified Party shall promptly notify the
Depositor in writing, and the Depositor upon request of the Indemnified Party
shall retain counsel reasonably satisfactory to the Indemnified Party (or,
with the consent of the Depositor, counsel selected by the Indemnified Party
acceptable to the Depositor) to represent the Indemnified Party and any others
the Depositor may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. The Depositor
shall not be liable for any settlement of any claim or proceeding effected
without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Depositor agrees to indemnify any
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. The Depositor shall not, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
SECTION 7.3. Payments to Owner Trustee. Any amounts paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement. (a) The Owner
Trust shall terminate upon the final distribution by the Owner Trustee of all
moneys or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture, the Deposit and Administration Agreement and
the Statutory Trust Act. Any money or other property held as
18
part of the Owner Trust Estate following such distribution, after satisfaction
of all liabilities of the Owner Trust in accordance with Section 3808 of the
Statutory Trust Act, shall be distributed to the Certificateholder. The
bankruptcy, death, incapacity, liquidation, dissolution or termination of the
Depositor or Certificateholder (or any other beneficiary) shall not (x)
operate to revoke or terminate this Agreement or the Owner Trust, or (y)
entitle the Certificateholder's (or any other beneficiary) legal
representatives to claim an accounting or to take any action or proceeding in
any court for a partition or winding up of all or any part of the Owner Trust
or Owner Trustee Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a) or 8.1(c), neither
the Depositor nor the Certificateholder shall be entitled to revoke or
terminate the Owner Trust.
(c) Except as provided in this Section 8.1(c), neither the
Depositor nor the Certificateholder shall be entitled to revoke or terminate
the Owner Trust or this Agreement. The Depositor and the Owner Trustee
acknowledge that the Indenture Trustee, on behalf of the Noteholders, is a
third-party beneficiary of this Agreement and shall be entitled to enforce the
terms of this Agreement to the same extent as it was a signatory hereto. For
so long as the Notes are outstanding, neither the Owner Trust nor this
Agreement shall be revoked without the prior written consent of the Indenture
Trustee. The Depositor and the Owner Trustee acknowledge that the Indenture
Trustee, as an agent of the Noteholders, maintains a legitimate interest in
ensuring that the Owner Trust is not revoked prior to the fulfillment of the
Owner Trust objectives. In no event may this Agreement be amended without the
prior written consent of the Indenture Trustee if the effect of such amendment
is the revocation or termination of this Owner Trust other than in accordance
with this Section 8.1. Upon the winding up of the Owner Trust in accordance
with the Statutory Trust Act, 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
Statutory Trust Act and thereupon the Owner Trust and this Agreement (other
than Article VII) shall terminate.
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1 Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be an entity authorized to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent) which has a rating of at least
Baa3 by Moody's, at least BBB- by Standard & Poor's and, if rated by Fitch, at
least BBB- by Fitch, or if not rated, otherwise satisfactory to each Note
Rating Agency. If such entity 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
19
and surplus of such entity shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 9.2. In
addition, at all times the Owner Trustee or a co-trustee shall be a person
that satisfies the requirements of Section 3807(a) of the Statutory Trust Act.
SECTION 9.2 Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Owner Trustee may petition any court
of competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 9.1 and shall fail to
resign after written request therefor by the Administrator, or if at any time
the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Owner Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Owner Trustee so removed and one copy of which shall be delivered to the
successor Owner Trustee, and payment of all fees owed to the outgoing Owner
Trustee shall be made to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 9.3 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Administrator shall provide
notice of such resignation or removal of the Owner Trustee to each of the Note
Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 9.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective
and such successor Owner Trustee, without any further act, deed or convey-
20
ance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as the Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this Agreement; and
the Administrator and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail notice of the
successor of such Owner Trustee to the Certificateholder, the Indenture
Trustee, the Noteholders and the Note Rating Agencies. If the Administrator
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. Any successor Owner
Trustee appointed pursuant to this Section 9.3 shall be eligible to act as a
trustee in accordance with Section 3807(a) of the Statutory Trust Act and,
following compliance with this Section, shall become fully vested with the
rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee. Any
successor Owner Trustee appointed hereunder shall promptly file an amendment
to the Certificate of Trust as required by the Statutory Trust Act.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any entity 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 entity shall be eligible pursuant to Section 9.1,
without the execution or filing of any instrument or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided further that the Owner Trustee shall mail notice of
such merger or consolidation to the Note Rating Agencies.
SECTION 9.5. Appointment of Co-Trustee or Separate
Trustee. (a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Owner Trust Estate may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint at the expense of the
Depositor one or more Persons approved by the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in
21
such Person, in such capacity, such title to the Owner Trust, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 9.1, and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to
be performed, the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Owner
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee and a copy thereof given to
the Administrator.
Any separate trustee or co-trustee may at any time appoint
the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to
22
do any lawful act under or in respect of this Agreement on its behalf and in
its name. If any separate trustee or co-trustee shall become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
(b) If, at any time, the Owner Trustee shall no longer
satisfy the requirements of Section 3807(a) of the Statutory Trust Act, the
Owner Trustee and the Administrator acting jointly shall appoint a co-trustee
that meets the requirements of Section 3807(a) of the Statutory Trust Act.
Upon acceptance of such appointment, the Owner Trustee and the co-trustee
appointed pursuant to this Section 9.5(b) shall promptly file an amendment to
the Certificate of Trust as required by the Statutory Trust Act.
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. This Agreement
may be amended by the Depositor and the Owner Trustee, with prior written
notice to the Note Rating Agencies, without the consent of the Indenture
Trustee, any of the Noteholders or the Certificateholder, to cure any
ambiguity or defect, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholder; provided,
however, that such amendment will not (i) as evidenced by an Officer's
Certificate of the Depositor addressed and delivered to the Owner Trustee and
the Indenture Trustee, materially and adversely affect the interest of any
Noteholder or the Owner Trust or significantly change any of the Owner Trust's
permitted activities as described in Section 2.3 and (ii) as evidenced by an
Opinion of Counsel addressed and delivered to the Owner Trustee and the
Indenture Trustee, cause the Owner Trust to be classified as an association
(or a publicly traded partnership) taxable as a corporation for federal income
tax purposes; provided, further, that the Depositor shall deliver written
notice of such amendments to each Note Rating Agency prior to the execution of
any such amendment.
This Agreement may also be amended from time to time by
the Depositor and the Owner Trustee, with prior written notice to the Note
Rating Agencies, with the prior written consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any manner
the rights of the Noteholders or the Certificateholder; provided that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments in respect of the
Series Certificate or distributions that shall be required to be made for the
benefit of the Noteholders or the Certificateholder, or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes, the Holders of
which are required to consent to any such
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amendment.
Promptly after the execution of any amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Indenture Trustee and each
of the Note Rating Agencies.
It shall not be necessary for the consent of the
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Owner Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Owner Trustee's own
rights, duties or immunities under this Agreement or otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any
specific property in the Owner Trust Estate. No transfer, by operation of law
or otherwise, of any right, title or interest of the Certificateholder to and
in its ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any specific property in
the Owner Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Depositor, the Certificateholder and, to the extent expressly provided
herein, the Indenture Trustee, the Administrator and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 10.4. Notices. Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing
and shall be deemed given upon receipt personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt, if to the Owner Trustee,
addressed to Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, DE 19890, Attention: Corporate Trust Administration, if to
the Depositor, addressed to, Chase Manhattan Bank USA, National Association,
Attention: Patricia M. Garvey, or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party.
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SECTION 10.5. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Depositor, the Owner Trustee and its successors and the
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by the Certificateholder shall bind the successors and assigns of
the Certificateholder.
SECTION 10.8. Nonpetition Covenants. Notwithstanding any
prior termination of the Owner Trust or this Agreement, each of the Owner
Trustee (not in its individual capacity) and the Certificateholder, by its
acceptance of the Certificate, covenants and agrees that it shall not at any
time with respect to the Owner Trust or the Master Trust, acquiesce, petition
or otherwise invoke or cause the Owner Trust or the Master Trust to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Owner Trust or the Master Trust under any
Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Owner Trust or the Master Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Owner Trust or the Master Trust; provided, however, that
this Section 10.8 shall not operate to preclude any remedy described in
Article V of the Indenture.
SECTION 10.9. No Recourse. The Certificateholder by
accepting the Certificate acknowledges that the Certificate does not represent
an interest in or obligation of the Depositor, the Administrator, the Owner
Trustee (in its individual capacity), the Indenture Trustee or any Affiliate
thereof, and no recourse may be had against such parties or their assets, or
against the assets pledged under the Indenture.
SECTION 10.10. Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELA-
25
WARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.12 Depositor Payment Obligation. The Depositor
shall be responsible for payment of the Administrator's fees under the Deposit
and Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder.
SECTION 10.13 Acceptance of Terms of Agreement. THE
RECEIPT AND ACCEPTANCE OF THE CERTIFICATE BY THE CERTIFICATEHOLDER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE CERTIFICATEHOLDER OF ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE OWNER
TRUST THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE OWNER TRUST AND THE CERTIFICATEHOLDER.
SECTION 10.14 Compliance with Sarbanes-Oxley Act of 2002.
Notwithstanding anything to the contrary herein or in any other Basic
Document, the Owner Trustee shall not be required to execute, deliver or
certify on behalf of the Owner Trust or any other Person any filings,
certificates, affidavits or other instruments required under the
Sarbanes-Oxley Act of 2002. Notwithstanding any Person's right to instruct the
Owner Trustee, neither the Owner Trustee nor any agent, employee, director or
officer of the Owner Trustee shall have any obligation to execute any
certificates or other documents required pursuant to the Sarbanes-Oxley Act of
2002 or the rules and regulations promulgated thereunder, and the refusal to
comply with any such instructions shall not constitute a default or breech
under any Basic Document.
SECTION 10.15 Integration of Documents. This Agreement,
together with the Deposit and Administration Agreement, constitutes the entire
agreement of the parties hereto and thereto with respect to the subject matter
hereof and thereof and supercedes all prior agreements relating to the subject
matter hereof and thereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By:
Name: Patricia M. Garvey
Title: Vice President
EXHIBIT A
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (OR ANY
INTEREST HEREIN) MAY NOT BE TRANSFERRED BY THE OWNER TO ANY PERSON.
CHASE CREDIT CARD OWNER TRUST 2004-2
OWNER CERTIFICATE
R-1
(This Certificate does not represent an interest in or obligation of Chase
Manhattan Bank USA, National Association, or any of its affiliates, except to
the extent described below.)
THIS CERTIFIES THAT Chase Manhattan Bank USA, National Association is
the registered owner of one hundred percent (100%) of the beneficial interest
in the Chase Credit Card Owner Trust 2004-2 , a Delaware statutory trust (the
"Owner Trust") created pursuant to the Chase Credit Card Owner Trust 2004-2
Trust Agreement dated as of June 1, 2004 (the "Trust Agreement"), between
Chase Manhattan Bank USA, National Association (the "Depositor") and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). To the
extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Trust Agreement including, as specified
in Section 1.1(a).
This Certificate is the duly authorized Certificate evidencing the
sole beneficial interest in the Owner Trust (herein called the "Certificate").
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. Three classes of Notes designated as Class A
Floating Rate Asset Backed Notes, Series 2004-2 (the "Class A Notes"), Class B
Floating Rate Asset Backed Notes, Series 2004-2 (the "Class B Notes") and
Class C Floating Rate Asset Backed Notes, Series 2004-2 (the "Class C Notes"
and, together with the Class A Notes and the Class B Notes, the "Notes") will
be issued under the Indenture dated as of June 1, 2004 between the Owner Trust
and The Bank of New York, as Indenture Trustee.
Notwithstanding any prior termination of the Trust Agreement, the
Certificateholder, by its acceptance of this Certificate, covenants and agrees
that it shall not at any time with respect to the Owner Trust, the Depositor
or the Master Trust, acquiesce, petition or otherwise invoke or cause the
Owner Trust, the Depositor or the Master Trust to invoke the process of any
court or government authority for the purpose of commencing or sustaining a
case against the Owner Trust, the Depositor or the Master Trust, under any
Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, conservator, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Owner Trust,
the Depositor or the Master Trust, or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Owner Trust, the
Depositor or the Master Trust.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Deposit and Administration Agreement or be valid for
any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND
THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE OWNER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trust has caused this Certificate to be
duly executed.
CHASE CREDIT CARD OWNER
TRUST 2004-2
By: WILMINGTON TRUST COMPANY
Not in its individual capacity
but solely as Owner Trustee
for the Chase Credit Card
Owner Trust 2004-2
Dated: _________________, _____ By: ___________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Owner Trustee for the
Chase Credit Card Owner Trust 2004-2
By: ______________________________
Authorized Signatory
ANNEX 1 TO EXHIBIT A
Registered Owner and address:
Chase Manhattan Bank USA, National Association
500 Stanton Christiana Road, 1st Floor
Newark, DE 19713
Tax Identification Number: 22-2382028
EXHIBIT B
CERTIFICATE OF TRUST OF
CHASE CREDIT CARD OWNER TRUST 2004-2
THIS Certificate of Trust of Chase Credit Card Owner Trust
2004-2 (the "Trust"), is being duly executed and filed by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C., section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust created hereby is
Chase Credit Card Owner Trust 2004-2.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is Wilmington Trust Company, a
Delaware banking corporation, located at Rodney Square North, 1100 North
Market Street, Wilmington, DE 19890.
3. Effective Date. This Certificate of Trust shall be
effective June 1, 2004.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
as trustee
By: ___________________________
Name:
Title: