OH&S DRAFT
10/7/97
EX-4.3(B)
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CHASE MANHATTAN MARINE OWNER TRUST 1997-A
AMENDED AND RESTATED
TRUST AGREEMENT
among
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
and
THE CHASE MANHATTAN BANK,
as Depositors
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of October 1, 1997
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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............................................................. 3
SECTION 2.9 Representations and Warranties of each
Depositor................................................................. 4
SECTION 2.10 Liability of Certificateholders............................................. 4
SECTION 2.11 [Reserved].................................................................. 4
SECTION 2.12 Deduction and Loss Allocations.............................................. 5
SECTION 2.13 Special Allocations......................................................... 5
SECTION 2.14 Amended and Restated Trust Agreement........................................ 5
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership........................................................... 5
SECTION 3.2 The Certificates............................................................ 6
SECTION 3.3 Execution, Authentication and Delivery
of Certificates........................................................... 6
SECTION 3.4 Registration of Transfer and Exchange
of Certificates........................................................... 6
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen
Certificates.............................................................. 9
SECTION 3.6 Persons Deemed Certificateholders........................................... 10
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 [Reserved].................................................................. 11
SECTION 3.11 [Reserved].................................................................. 11
SECTION 3.12 [Reserved].................................................................. 11
SECTION 3.13 Authenticating Agent........................................................ 11
SECTION 3.14 Actions of Certificateholders............................................... 13
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with
Respect to Certain Matters................................................ 13
SECTION 4.2 Action by Certificateholders with
Respect to Certain Matters................................................ 14
SECTION 4.3 Action by Certificateholders with
Respect to Bankruptcy..................................................... 14
SECTION 4.4 Restrictions on Certificateholders'
Power..................................................................... 14
SECTION 4.5 Majority Control............................................................ 15
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate
Distribution Account...................................................... 15
SECTION 5.2 Application of Funds in Certificate
Distribution Account...................................................... 15
SECTION 5.3 Method of Payment........................................................... 16
SECTION 5.4 No Segregation of Monies; No Interest....................................... 16
SECTION 5.5 Accounting and Reports to the
Noteholders, Certificateholders, the
Internal Revenue Service and Others....................................... 17
SECTION 5.6 Signature on Returns; Tax Matters
Partner................................................................... 17
SECTION 5.7 Capital Accounts............................................................ 17
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority........................................................... 18
SECTION 6.2 General Duties.............................................................. 18
SECTION 6.3 Action upon Instruction..................................................... 19
SECTION 6.4 No Duties Except as Specified in this
Agreement or in Instructions.............................................. 19
SECTION 6.5 No Action Except under Specified
Documents or Instructions................................................. 20
SECTION 6.6 Restrictions................................................................ 20
SECTION 6.7 Doing Business in Other Jurisdictions....................................... 21
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties............................................. 21
SECTION 7.2 Furnishing of Documents..................................................... 23
SECTION 7.3 Representations and Warranties.............................................. 23
SECTION 7.4 Reliance; Advice of Counsel................................................. 24
SECTION 7.5 Not Acting in Individual Capacity........................................... 25
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SECTION 7.6 Owner Trustee May Own Certificates and
Notes..................................................................... 25
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses........................................... 25
SECTION 8.2 Indemnification............................................................. 26
SECTION 8.3 Payments to Owner Trustee................................................... 26
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement.............................................. 27
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner
Trustee................................................................... 28
SECTION 10.2 Resignation or Removal of Owner
Trustee................................................................... 29
SECTION 10.3 Successor Owner Trustee..................................................... 29
SECTION 10.4 Merger or Consolidation of Owner
Trustee................................................................... 30
SECTION 10.5 Appointment of Co-Trustee or Separate
Trustee................................................................... 30
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments.................................................. 32
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders........................................................ 33
SECTION 11.3 Limitations on Rights of Others............................................. 33
SECTION 11.4 Notices..................................................................... 33
SECTION 11.5 Severability................................................................ 34
SECTION 11.6 Separate Counterparts....................................................... 34
SECTION 11.7 Successors and Assigns...................................................... 34
SECTION 11.8 No Recourse................................................................. 34
SECTION 11.9 [Reserved].................................................................. 34
SECTION 11.10 Headings.................................................................... 35
SECTION 11.11 GOVERNING LAW............................................................... 35
EXHIBITS
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate of Trust
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 1, 1997,
among CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION ("Chase USA"), a national
banking association, THE CHASE MANHATTAN BANK ("Chase"), a New York banking
corporation (each, in such capacity, a "Depositor" and together the
"Depositors"), and Wilmington Trust Company, a Delaware banking corporation, as
the owner trustee (the "Owner Trustee").
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Section 1.1 to the Sale and Servicing Agreement among
the trust established by this Agreement and Chase USA and Chase, as Sellers, and
The CIT Group/Sales Financing, Inc., as Servicer, dated as of October 1, 1997,
as the same may be amended and supplemented from time to time (the "Sale and
Servicing Agreement").
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder," and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The trust created hereby shall be known as "Chase
Manhattan Marine Owner Trust 1997-A" (hereinafter, the "Issuer") in which name
the Owner Trustee may conduct the business of such trust, make and execute
contracts and other instruments on behalf of such trust and xxx 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
Depositors.
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 Depositors pursuant to the terms
thereof, to make payments or distributions on the Notes and
Certificates, to make deposits to and withdrawals from the Reserve
Account and other accounts established under this Agreement and the
Sale and Servicing Agreement;
(c) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to the Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders.
Issuer is hereby authorized to engage in the foregoing activities.
Issuer shall not engage in any activity other than in connection
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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 Depositors hereby appoint
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
Depositors hereby sell, assign, transfer, convey and set over to the Owner
Trustee, as of the date hereof, the Reserve Account Initial Deposit. The Owner
Trustee hereby acknowledges receipt in trust from the Depositors, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Owner
Trust Estate and shall be deposited in the Reserve Account pursuant to Section
5.6(a) of the Sale and Servicing Agreement. The Depositors shall pay the
organizational expenses of the Issuer as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Issuer under the Basic Documents. It is the
intention of the parties hereto that the Issuer constitute a business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention of the parties
hereto that, solely for United States income and franchise tax purposes, the
Issuer shall be treated as a partnership. The parties agree that, unless
otherwise required by appropriate tax authorities, the Issuer will file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Issuer as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and to the extent not inconsistent
herewith, in the Business Trust Statute with respect to accomplishing the
purposes of the Issuer. The Owner Trustee shall file the Certificate of Trust
with the Secretary of State of Delaware.
SECTION 2.7 Title to Issuer Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Issuer as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case the title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.8 Situs of Issuer. The Issuer will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Issuer shall be located in the State of Delaware or the
State of New York. Payments will be received by the Issuer only in Delaware or
New
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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 each Depositor. Each
Depositor hereby represents and warrants to the Owner Trustee that:
(i) Such Depositor (i) has been duly organized and is
validly existing and in good standing under the laws of the
jurisdiction of its organization, and (ii) has 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 transferred by it to the Issuer.
(ii) Such Depositor has the power and authority to execute
and deliver this Agreement and to carry out its terms; such Depositor
has full power and authority to sell and assign the property to be sold
and assigned to and deposited with the Issuer by it, and such Depositor
has duly authorized such sale and assignment and deposit to the Issuer
by all necessary action; and the execution, delivery and performance of
this Agreement has been duly authorized by such 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 charter, as
the case may be, or bylaws of such 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 such Depositor is a party or by
which it is bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument; nor violate any law or, to the best of
such Depositor's knowledge, any order, rule or regulation applicable to
such Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over such Depositor or its properties.
SECTION 2.10 Liability of Certificateholders. No Certificateholder
shall have any personal liability for any liability or obligation of the Issuer.
SECTION 2.11 [Reserved].
4
SECTION 2.12 Deduction and Loss Allocations. (a) All items of deduction
and loss of the Issuer shall be allocated to the Certificateholders in
accordance with their respective Certificate Interests.
(b) To the extent that an allocation of the gross amount of deductions
and losses to the Certificateholders pursuant to Section 2.12(a) above would
cause the Capital Accounts of the Certificateholders to be reduced below zero,
such excess deductions and losses shall be allocated to the Certificateholders
on a pro rata basis until each of their Capital Accounts has been reduced to
zero. If any amount of gross deduction or loss has not been allocated pursuant
to the preceding sentence because all of the Certificateholders' Capital
Accounts have been reduced to zero, the amount of such remaining unallocated
deductions or losses shall be allocated to the Certificateholders in accordance
with their respective Certificate Interests.
(c) If any deductions or losses have been allocated to the
Certificateholders under Section 2.12(b) above, an amount of gross income shall
be allocated to such Certificateholders under this Section 2.12(c) in subsequent
taxable years sufficient to offset the amount of any deductions or losses
previously allocated to such Certificateholders under Section 2.12(b) above and,
thereafter, allocations of gross income and deductions shall be made in
accordance with Section 2.12(a) of this Agreement.
SECTION 2.13 Special Allocations. In the event any Certificateholder
unexpectedly receives any adjustments, allocations or distributions described in
Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Issuer
income and gain shall be specially allocated to such Certificateholder in an
amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations, the deficit, if any, in the balance of the Capital Account
of such Certificateholder as quickly as possible. This Section 2.13 is 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 July 17,
1997 among the Depositors and the Owner Trustee.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership. Upon the formation of the Issuer by the
contribution by the Depositors pursuant to Section 2.5 and until the issuance of
the Certificates, the Depositors shall be the sole beneficiaries of the Trust.
5
SECTION 3.2 The Certificates. Upon initial issuance, the Certificates
shall each be in the form of Exhibit A, which is incorporated by
reference, and shall be issued as provided in Section 3.10 and in the
aggregate representing 100% of the Certificate Interest. The
Certificates shall be executed on behalf of the Issuer by manual or
facsimile signature of an Authorized Officer or other authorized
signatory of the Owner Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the
Issuer, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates. No Certificate shall
entitle the Holder to any benefit under this Agreement, or shall be
valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in
Exhibit A, executed by the Owner Trustee or Chase, as the Owner
Trustee's authentication agent, by manual or facsimile signature; such
authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder.
All Certificates shall be dated the date of their authentication. A
transferee of a Certificate shall become a Certificateholder, and shall
be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon due registration of such Certificate in such
transferee's name pursuant to Section 3.4.
SECTION 3.3 Execution, Authentication and Delivery of Certificates.
Concurrently with the transfer of the Receivables to the Issuer pursuant to the
Sale and Servicing Agreement, the Owner Trustee shall cause the Certificates in
the aggregate representing 100% of the Certificate Interest to be executed on
behalf of the Issuer, authenticated and delivered to or upon the written order
of each Depositor signed by its chairman of the board, its president or any vice
president, without further action by such 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 regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Chase shall be the initial Certificate
Registrar. In the event that, subsequent to the date of issuance of the
Certificates, Chase notifies the Owner Trustee that it is unable to act as the
Certificate Registrar, the Owner Trustee shall act, or the Owner Trustee shall,
with the consent of each 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
6
Agreement applicable to it, to act, as successor Certificate Registrar under
this Agreement.
The Owner Trustee may revoke such appointment and remove Chase as the
Certificate Registrar if the Owner Trustee determines in its sole discretion
that Chase failed to perform its obligations under this Agreement in any
material respect. Chase shall be permitted to resign as the Certificate
Registrar upon 30 days' written notice to the Owner Trustee, each Depositor and
the Issuer; provided, however, that such resignation shall not be effective and
Chase shall continue to perform its duties as the Certificate Registrar until
the Owner Trustee has appointed a successor Certificate Registrar with the
consent of each Depositor.
An institution succeeding to the corporate agency business of the
Certificate Registrar shall continue to be the Certificate Registrar without the
execution or filing of any paper or any further act on the part of the Owner
Trustee or such Certificate Registrar.
The Certificates have not been registered or qualified under the
Securities Act, or any state securities laws or "Blue Sky" laws. No transfer,
sale, pledge or other disposition of any Certificate shall be made unless such
disposition is made pursuant to an effective registration statement under the
Securities Act and effective registration or qualification under applicable
state securities laws or "Blue Sky" laws, or is made in a transaction which does
not require such registration or qualification. In the event that a transfer is
to be made in reliance upon an exemption from the Securities Act, the Owner
Trustee, in order to assure compliance with the Securities Act, shall not be
required to register such transfer unless (a) the Certificateholder desiring to
effect such disposition delivers to the Owner Trustee an Opinion of Counsel
satisfactory to it that (i) such transfer may be made pursuant to an exemption
from the Securities Act and (ii) such transfer will not cause the Issuer to be
treated as an association (or publicly traded partnership) taxable as a
corporation for U.S. federal income tax purposes, (b) the Rating Agency
Condition is satisfied and (c) the related transferee or assignee agrees to take
positions for tax purposes consistent with the tax positions agreed to be taken
by the Certificateholders hereunder, which Opinions of Counsel shall not be an
expense of the Owner Trustee.
None of the Depositors or the Owner Trustee are obligated under this
Agreement to register the Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of Certificates without such registration or
qualification. Any such Certificateholder desiring to effect such transfer
shall, and does hereby agree to, promptly reimburse the Owner Trustee, each
Depositor for costs and expenses incurred in connection with any liability that
results if the transfer is not so exempt or is not made in accordance with such
applicable federal and state laws.
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The Certificates may not be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) which is subject to the
provisions of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of
the Code other than a governmental or church plan described in Section
4975(g)(2) or (3) of the Code), or (iii) any entity whose underlying assets
include "plan assets" by reason of any such plan's investment in the entity
(excluding any investment company that is registered under the Investment
Company Act of 1940, as amended) (each, a "Benefit Plan"). By accepting and
holding a Certificate, the Holder thereof shall be deemed to have represented
and warranted that it is not a Benefit Plan, and that no assets of a Benefit
Plan were used to acquire the Certificate. The foregoing restrictions shall not
apply to acquisitions or holdings of Certificates with assets of the general
account of an insurance company, to the extent that the acquisition or holding,
respectively, of such Certificates (i) is and will be permissible under Section
401(c) of ERISA and final regulations thereunder or another exemption under
ERISA and (ii) does not and will not result in the contemplated operations of
the Trust being treated as non-exempt prohibited transactions.
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, any transfer of a Certificate to a person that is not a U.S. Person
shall be void, and each transferee must represent and warrant, in writing and
under penalties of perjury, that it (or, if it is acting as a nominee, the
beneficial owner) is a U.S. Person prior to acquiring any Certificates.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute, authenticate and (if the Certificate Registrar is different than the
Owner Trustee, then the Certificate Registrar shall) deliver (or shall cause
Chase as its authenticating agent to authenticate and deliver), in the name of
the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like class and aggregate face amount dated the
date of authentication by the Owner Trustee or any authenticating agent. At the
option of a Holder, Certificates may be exchanged for other Certificates of the
same class in authorized denominations of a like aggregate amount upon surrender
of the Certificates to be exchanged at the office or agency maintained pursuant
to Section 3.8.
Whenever any Certificate is surrendered for exchange, the Owner Trustee
shall execute, authenticate and (if the Certificate Registrar is different than
the Owner Trustee, then the Certificate Registrar shall) deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certifi-
8
cate 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.
Each Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, of
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of Issuer shall execute and the Owner Trustee, or
Chase, as the Owner Trustee's authenticating agent, shall authenticate and (if
the Certificate Registrar is different from the Owner Trustee, then the
Certificate Registrar shall) deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
class, tenor and denomination. If, after delivery of such replacement
Certificate, a bona fide purchaser of the original Certificate in lieu of which
such replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee or the Certificate Registrar shall be entitled to
recover such replacement Certificate from such Person to whom such replacement
Certificate was delivered or any assignee of such Person, except a bona fide
purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Owner Trustee or the Certificate Registrar in connection therewith. In
connection with the issuance of any new Certificate under this Section 3.5, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in Issuer, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. The provisions of this Section 3.5 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement of mutilated, destroyed, lost or stolen Certificates.
9
SECTION 3.6 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 5.2 and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the Servicer
and the Depositors (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 Depositors (or the Owner Trustee)
in writing, a list, in such form as the Servicer or the Depositors (or the Owner
Trustee) may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Certificateholders representing not less than
25% of the Certificate Interest then outstanding 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 Depositors, the
Certificate Registrar, the Servicer or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
SECTION 3.8 Maintenance of Office or Agency. The Owner Trustee shall
maintain in The City of New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange.
The Owner Trustee initially designates the offices of The Chase Manhattan Bank
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 as its office for
such purposes. The Owner Trustee shall give prompt written notice to each
Depositor, the Servicer and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Owner Trustee may appoint
a Paying Agent with respect to the Certificates. The Owner Trustee hereby
appoints Chase as the initial Paying Agent. The Paying Agent shall have the
revocable power to make distributions to Certificateholders pursuant to the
Sale and Servicing Agreement and shall report the amounts of such distributions
to the Owner Trustee. The Owner Trustee may revoke
10
such power and remove the Paying Agent if the Owner Trustee determines in its
sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect or for other good
cause. The Paying Agent shall be permitted to resign upon 30 days' written
notice to the Owner Trustee and the Servicer. In the event that Chase shall no
longer be the Paying Agent, the Owner Trustee shall appoint a successor to act
as Paying Agent (which shall be a bank or trust company and may be the Owner
Trustee), with the consent of each 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, 7.6,
8.1 and 8.2 shall apply to the Owner Trustee also in its role as Paying Agent,
for so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 3.10 [Reserved].
SECTION 3.11 [Reserved].
SECTION 3.12 [Reserved]. The Certificates will be issued in definitive,
registered form. The Certificates shall be printed, lithographed or engraved or
may be produced in any other matter as is reasonably acceptable to the Owner
Trustee, as evidenced by its execution thereof.
SECTION 3.13 Authenticating Agent.
(a) The Owner Trustee may appoint one or more authenticating agents
with respect to the Certificates which shall be authorized to act on behalf of
the Owner Trustee in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Certificates. The Owner Trustee hereby appoints Chase as Authenticating Agent
for the authentication of Certificates upon any registration of transfer or
exchange of such Certificates. Whenever reference is made in this Agreement to
the authentication of Certificates by the Owner Trustee or the Owner Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Owner Trustee by an authenticating agent and a
certificate of authentication executed
11
on behalf of the Owner Trustee by an authenticating agent. Each authenticating
agent (other than Chase) shall be subject to acceptance by each 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 each 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 each 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 either of the Depositors, the Owner Trustee promptly may appoint a
successor authenticating agent with the consent of each 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 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, 7.6, 8.1 and 8.2 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 3.13, the
Certificates may have endorsed thereon, in lieu of the Owner Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
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 Depositors 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 Depositors and the Servicer, if
made in the manner provided in this Section 3.14.
(b) The fact and date of the execution by any Certificateholder of any
such instrument or writing may be proved in any reasonable manner which the
Owner Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Owner Trustee, the Depositors or the Servicer in reliance thereon,
regardless of whether notation of such action is made upon such Certificate.
(d) The Owner Trustee may require such additional proof of any matter
referred to in this Section 3.14 as it shall deem necessary.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the
Issuer (except claims or lawsuits brought in connection with the
collection of the Receivables) and the compromise of any material
action, claim or lawsuit brought by or against
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the Issuer (except with respect to the aforementioned claims
or lawsuits for collection of the Receivables);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder
is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement, except to any amendment where the consent of any
Certificateholder is not required under the terms of the Sale and
Servicing Agreement; or
(f) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note
Registrar, the Paying Agent, the Indenture 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 Certificateholders, to (a) remove the Servicer under the Sale and Servicing
Agreement pursuant to Article VIII thereof, (b) remove either Administrator
under an 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 (i) would be contrary to any
obligation of the Issuer or the Owner Trustee under this Agreement or any of the
other Basic Documents or (ii)
14
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 Certificateholders representing not less than a majority of the
Certificate Interest. Except as expressly provided herein, any written notice of
the Certificateholders delivered pursuant to this Agreement shall be effective
if signed by the Certificateholders representing not less than a majority of the
Certificate Interest then outstanding at the time of the delivery of such
notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 [Reserved].
SECTION 5.2 Reports.
15
On each Distribution Date, the Owner Trustee shall send, or cause
to be sent, to each Certificateholder the statement provided to the Owner
Trustee by the Servicer pursuant to Section 5.8 of the Sale and Servicing
Agreement on such Distribution Date.
SECTION 5.3 Method of Payment. Subject to Section 9.1(c), distributions
required to be made to Certificateholders pursuant to the Sale and Servicing
Agreement 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.
SECTION 5.4 [Reserved].
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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 and (c) prepare, or cause to be prepared, and file, or cause
to be filed, 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. Chase shall sign all tax
information returns filed pursuant to this Section 5.5 and any other returns as
may be required by law. The Owner Trustee shall elect under Section 1278 of the
Code to include in income currently any market discount that accrues with
respect to the Receivables. The Owner Trustee shall not make the election
provided under Section 754 of the Code.
SECTION 5.6 Signature on Returns; Tax Matters Partner. Notwithstanding
the provisions of Section 5.5, Chase 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 Chase.
Chase shall be the "tax matters partner" of the Issuer pursuant to the
Code.
SECTION 5.7 Capital Accounts. The Issuer shall maintain accounts
("Capital Accounts") with respect to each Certificateholder and each Depositor
(each an "Owner"). For this purpose, Capital Accounts shall be maintained in
accordance with the following provisions:
(a) Each Owner's Capital Account shall be increased by the
Capital Contributions (as defined below) of such Owner, such Owner's
distributive share of gross income (if any) and any items in the nature
of income or gain that are allocated to such Owner pursuant to Section
2.12(b) or 2.13.
(b) Each Owner's Capital Account shall be reduced by any
amount distributed to such Owner (including, in the case of each
Depositor, any amount released or otherwise distributed to each
Depositor from the Reserve Account under Section 5.6 of the Sale and
Servicing Agreement) and any items in the nature of deductions or
losses that are allocated to such Owner pursuant to Section 2.12 or
2.13.
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(c) In the event all or a portion of a Certificate is
transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to
the extent it related to such Certificate or a portion thereof.
"Capital Contribution" means the amount of any cash contributed to the
Issuer by an Owner (including any amounts deemed to be contributed in connection
with the original issuance of the Certificates), including, in the case of each
Depositor, the amount of any Receivables deemed to have been contributed by such
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
Depositors on the Closing Date under Article II of the Sale and Servicing
Agreement). The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
section 1.704-l(b) of the Treasury Regulations and shall be interpreted in a
manner consistent therewith.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Issuer is named
as a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Issuer is named as a party and
any amendment thereto, in each case, in such form as the Depositors shall
approve as evidenced conclusively by the Owner Trustee's execution thereof, and,
on behalf of the Issuer at the written direction of the Depositors, to direct
the Indenture Trustee to authenticate and deliver Class A-1 Notes in the
aggregate principal amount of $41,800,000, Class A-2 Notes in the aggregate
principal amount of $55,600,000, Class A-3 Notes in the aggregate principal
amount of $50,600,000, Class A-4 Notes in the aggregate principal amount of
$37,300,000, Class A-5 Notes in the aggregate principal amount of $29,300,000,
Class A-6 Notes in the aggregate principal amount of $23,700,000, Class B
Notes in the aggregate principal amount of $10,650,000 and Class C Notes in
the aggregate principal amount of $17,312,029.25. 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 an Administrator or the Depositors recommend or direct 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
18
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 Administrators have agreed in the
Administration Agreements 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 an Administrator
to carry out its obligations under the related Administration Agreement.
SECTION 6.3 Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct the Owner Trustee in the
management of the Issuer. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any other Basic Document if the
Owner Trustee shall reasonably determine, or shall have been advised by counsel
in writing, that such action is likely to result in personal liability to the
Owner Trustee (in such capacity or individually), is contrary to the terms of
this Agreement or any other Basic Document or is contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document or is unsure as to the application of any provision of this
Agreement or any Basic Document, or if any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Agreement permits any determination by the
Owner Trustee or is silent or is incomplete as to the course of action that the
Owner Trustee is required to take with respect to a particular set of facts, the
Owner Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith
in accordance with any written instruction of the Certificateholders received,
the Owner Trustee shall not be liable on account of such action to any Person.
If the Owner Trustee shall not have received appropriate instruction within ten
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall deem
to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall undertake to perform such duties and only
such duties as are specifically set forth in
19
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, in its
individual capacity, that are not related to the ownership or the administration
of the Owner Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents, and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Owner Trustee shall not (a) take any
action that is inconsistent with the purposes of the Issuer set forth in Section
2.3 or (b) take any action or amend this Agreement in any manner that, to the
best knowledge of the Owner Trustee, would result in the Issuer's becoming
taxable as a corporation for United States federal income tax purposes. The
Owner Trustee and the Depositors agree that no election to treat the Issuer
other than as a partnership for United States federal income tax purposes or any
relevant state tax purposes shall be made by or on behalf of the Issuer. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
20
SECTION 6.7 Doing Business in Other Jurisdictions. (a) Notwithstanding
anything contained herein to the contrary, the Owner Trustee shall not be
required to take any action in any jurisdiction other than in the State of
Delaware, other than as set forth in the last sentence of this Section 6.7, if
the taking of such action will (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivisions thereof in existence on the date
hereof other than the State of Delaware becoming payable by the Owner Trustee;
or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee, as the
case may be, contemplated hereby. The Owner Trustee shall be entitled to obtain
advice of counsel (which advice shall be an expense of the Depositors) to
determine whether any action required to be taken pursuant to this Agreement
results in the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence. In the event that said counsel advises the Owner Trustee
that such action will result in such consequences, the Owner Trustee will
appoint an additional trustee pursuant to Section 10.5 to proceed with such
action.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Owner Trust Estate upon the terms of the other Basic Documents and
this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except (i) for
its own willful misconduct, bad faith or gross negligence or (ii) in the case of
the breach of any representation or warranty contained in Section 7.3 expressly
made ----------- by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner
Trustee unless it is proved that the Owner Trustee was grossly
negligent in ascertaining the pertinent facts;
(b) The Owner Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
21
accordance with the instructions of the Certificateholders
given pursuant to Section 6.3;
(c) No provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in its own performance of any of its
rights or powers hereunder or under any other Basic Document if the
Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of
the Basic Documents, including the principal of and interest
on the Notes;
(e) The Owner Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Agreement or
for the due execution hereof by each 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 Depositors 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 Boat 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 Boat; 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 each
Depositor or the Servicer with any warranty or representation made
under any Basic Document or in any related document or the accuracy of
any such warranty or representation or any action of the Indenture
Trustee, an Administrator or the Servicer or any subservicer taken in
the name of the Owner Trustee;
(f) The Owner Trustee shall not be liable for the
default or misconduct of the Indenture Trustee, the Administrators or
the Servicer under any of the Basic
22
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
an Administrator under an Administration Agreement, the Indenture
Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement;
(g) The Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document,
at the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any other Basic Document shall
not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence, bad faith or willful
misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically
required to be 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 Depositors, 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.
23
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement,
and this Agreement will be executed and delivered by one of
its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of
this Agreement, nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the terms
or provisions hereof will contravene any federal or Delaware
law, governmental rule or regulation governing the banking or
trust powers of the Owner Trustee or any judgment, writ,
decree or order applicable to it, or constitute any default
under its charter documents or by-laws or, with or without
notice or lapse of time, any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any
of its properties may be bound.
(d) The execution, delivery and performance by the
Owner Trustee of this Agreement does not require the
authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or
agency of the State of Delaware or the United States of
America regulating the corporate trust activities of the Owner
Trustee (other than the filing of the Certificate of Trust
with the Delaware Secretary of State).
(e) This Agreement has been duly authorized, executed
and delivered by the Owner Trustee and (assuming due
authorization, execution and delivery of this Agreement by the
Depositors) shall constitute the legal, valid, and binding
agreement of the Owner Trustee, enforceable in accordance with
its terms against the Owner Trustee, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization and other laws affecting the rights of
creditors generally, and by general principles of equity
regardless of whether enforcement is pursuant to a proceeding
in equity or at law.
SECTION 7.4 Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein,
24
the Owner Trustee may for all purposes hereof rely on a certificate, signed by
the president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with due care and (ii) may consult with counsel, accountants and other
skilled persons knowledgeable in the relevant area to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such persons
and not contrary to this Agreement or any Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as the Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any Basic Document shall
look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of the Certificates or the Notes and may deal with the Depositors, 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 VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses. In accordance with
Section 4.7 of the Sale and Servicing Agreement, the Owner Trustee shall receive
as compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Servicer and the Owner Trustee,
and the Owner Trustee shall be entitled to be reimbursed by the Servicer and the
Sellers in accordance with Sections 4.7 and 6.2, respectively, of the Sale and
Servicing Agreement for its reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
25
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder except any such expenses as may arise from its gross negligence,
wilful misfeasance, or bad faith or that is the responsibility of
Certificateholders under this Agreement.
SECTION 8.2 Indemnification. The Depositors, jointly and severally,
shall be liable as primary obligors 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 Depositors shall not be
liable for or required to indemnify the Owner Trustee from and against Expenses
arising or resulting from any of the matters described in the third sentence of
Section 7.1. The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee or the termination of this
Agreement. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Indemnified Party in respect of which indemnity may be sought pursuant to
this Section 8.2, such Indemnified Party shall promptly notify the Depositors in
writing, and the Depositors upon request of the Indemnified Party shall retain
counsel reasonably satisfactory to the Indemnified Party (or, with the consent
of the Depositors, counsel selected by the Indemnified Party acceptable to the
Depositors) to represent the Indemnified Party and any others the Depositors may
designate in such proceeding and shall pay the reasonable fees and expenses of
such counsel related to such proceeding. The Depositors 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 Depositors agree to indemnify any Indemnified Party from and
against any loss or liability by reason of such settlement or judgment. The
Depositors 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
26
to be a part of the Owner Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and the Issuer shall terminate and be of no further force or
effect, on the Distribution Date next succeeding the month which is six months
after the final distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture and the Sale and Servicing Agreement, including the payment to the
Certificateholders of all amounts required to be paid to them pursuant to the
Sale and Servicing Agreement; provided, however, that in no event shall the
Trust created by the Sale and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador to the Court of St. James's, living on the date of
this Agreement. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder or Certificate Owner shall not (x) operate to terminate
this Agreement or the Issuer, nor (y) entitle such Certificateholder's or
Certificate Owner's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Issuer or the Owner Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither any 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
27
the Certificateholders. Upon presentation and surrender of the Certificates to
the Owner Trustee, the Certificateholders shall receive the amounts
distributable on such Distribution Date pursuant to the Sale and Servicing
Agreement.
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 Depositors.
(d) Upon the winding up of the Issuer and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $100,000,000
subject to supervision or examination by Federal or state authorities; and an
approved assignee of a Preferred Mortgage under the Ship Mortgage Statutes. 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
28
10.2. In addition, at all times the Owner Trustee or a co-trustee shall be a
person that satisfies the requirements of Section 3807(a) of the Business Trust
Statute (the "Delaware Trustee").
SECTION 10.2 Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Administrators and the Depositors. Upon
receiving such notice of resignation, the Depositors 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 Depositors, 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 Depositors may remove the Owner Trustee. If the Depositors
shall remove the Owner Trustee under the authority of the immediately preceding
sentence, the Depositors shall promptly appoint a successor Owner Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed and one copy of which shall
be delivered to the successor Owner Trustee, and payment of all fees owed to the
outgoing Owner Trustee shall be made to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Depositors shall provide notice of such
resignation or removal of the Owner Trustee to the Administrators and 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 Depositors 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
29
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 Depositors 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, (i) the Chase Administrator shall mail notice of the successor of
such Owner Trustee to all Certificateholders, the Trustee, the Noteholders and
the Rating Agencies and (ii) such successor Owner Trustee shall file an
amendment to the Certificate of Trust with the Secretary of State reflecting the
name and principal place of business of such successor Owner Trustee in the
State of Delaware. If the Chase 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 Chase 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 from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 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 Boat may at the time be located, the
Chase 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 Chase
Administrator and the Owner Trustee may consider necessary or desirable. If the
30
Chase Administrator shall not have joined in such appointment within 15 days
after the receipt by it of a request so to do, the Owner Trustee alone shall
have the power to make such appointment. If the Delaware Trustee shall become
incapable of acting, resign or be removed, unless the Owner Trustee is qualified
to act as the Delaware Trustee, a successor co-trustee shall promptly be
appointed in the manner specified in this Section 10.5 to act as the Delaware
Trustee. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 10.1 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Issuer or any portion thereof in
any such jurisdiction) shall be exercised and performed 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 Chase 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 Depositors.
31
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments. This Agreement may be amended
by the Depositors and the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided that such action shall not, as evidenced by an
Opinion of Counsel, materially adversely affect the interests of any Noteholder
or Certificateholder; provided, further, that the Depositors shall deliver
written notice of such amendments to each Rating Agency prior to the execution
of any such amendment.
This Agreement may also be amended from time to time by the Depositors
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Noteholders representing not less than a majority of the
Outstanding Amount of the Notes and, to the extent affected thereby, the consent
of the Certificateholders representing not less than a majority of the
Certificate Interest 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,
however, 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 any Noteholder or any Certificateholder, or (b) reduce the aforesaid
percentage of the Outstanding Amount of the Notes and the Certificate Interest
required to consent to any such amendment without the consent of the Noteholders
or the Certificateholders representing 100% of the Outstanding Amount of the
Notes or the Certificateholders representing 100% of the Certificate Interest,
as the case may be.
32
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders or the
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the Certificateholders provided for in this Agreement or in
any other Basic Document) and of evidencing the authorization of the execution
thereof by the Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of the
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of the Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
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 Depositors, the Certificateholders and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.4 Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally
33
delivered, delivered by overnight courier or mailed certified mail, return
receipt requested and shall be deemed to have been duly given upon receipt, if
to the Owner Trustee, addressed to Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn:
Corporate Trust Administration; if to the Depositors, addressed to, (i) Chase
Manhattan Bank USA, National Association, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Controller and (ii) The Chase Manhattan Bank, c/o
Chase Financial Corporation, 000 Xxxx Xxxxx, Xxxxxxxxx, Xxxx 00000, Attention:
Chief Financial Officer (cc: General Counsel), or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, regardless of whether the Certificateholder receives such notice.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositors, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8 No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
equity interests in the Issuer only and do not represent interests in or
obligations of the Depositors, the Servicer, the Owner Trustee, the Indenture
Trustee or 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 11.9 [Reserved].
34
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 LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
35
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: Xxxxx Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as Depositor
By: ---------------------
Name: Xxxxxx Xxxx
Title: Vice President
EXHIBIT A
[FORM OF CERTIFICATE]
NUMBER
R CERTIFICATE INTEREST: ____%
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1993, AS AMENDED (THE "ACT"). NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF
MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE REGISTRATION PROVISIONS OF THE ACT AND ANY APPLICABLE PROVISIONS OF ANY
STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH PROVISIONS. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) WHICH IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN (AS DEFINED IN SECTION 4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OTHER THAN A PLAN
DESCRIBED IN SECTION 4975(g)(2) OR (3) OF THE CODE), OR (iii) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF A PLAN'S INVESTMENT IN THE
ENTITY (EXCLUDING ANY INVESTMENT COMPANY THAT IS REGISTERED UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED). BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE
HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED
AND WARRANTED THAT IT IS NOT SUCH A PLAN AND THAT NO ASSETS OF SUCH A PLAN WERE
USED TO ACQUIRE THIS CERTIFICATE. THE FOREGOING RESTRICTIONS SHALL NOT APPLY TO
ACQUISITIONS OR HOLDINGS OF CERTIFICATES WITH ASSETS OF THE GENERAL ACCOUNT OF
AN INSURANCE COMPANY, TO THE EXTENT THAT THE ACQUISITION OR HOLDING,
RESPECTIVELY, OF SUCH CERTIFICATES (i) IS AND WILL BE PERMISSIBLE UNDER SECTION
401(c) OF ERISA AND FINAL REGULATIONS THEREUNDER OR ANOTHER EXEMPTION UNDER
ERISA AND (ii) DOES NOT AND WILL NOT RESULT IN THE CONTEMPLATED OPERATIONS OF
THE TRUST BEING TREATED AS NONEXEMPT PROHIBITED TRANSACTIONS.
THE CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN
INDIVIDUAL OR ENTITY THAT IS NOT A U.S. PERSON AS DEFINED IN SECTION 7701(A)(30)
OF THE CODE. BY ACCEPTING AND HOLDING A CERTIFICATE, THE HOLDER SHALL BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT (OR, IF IT IS ACTING AS A NOMINEE, THE
BENEFICIAL OWNER) IS A U.S. PERSON.
CHASE MANHATTAN MARINE OWNER TRUST 1997-A
ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Issuer, as defined below, the property of which includes a pool of retail
installment sales contracts or purchase money notes and security agreements
secured by new or used boats and sold to the Issuer by Chase Manhattan Bank USA,
National Association, a national banking association, and The Chase Manhattan
Bank, a New York banking corporation.
(This Certificate does not represent an interest in or obligation of Chase
Manhattan Bank USA, National Association, The Chase Manhattan Bank or any of
their Affiliates, except to the extent described below.)
THIS CERTIFIES THAT __________ is the registered owner of
___________________________ nonassessable, fully-paid, beneficial ownership
interest in certain distributions of Chase Manhattan Marine Owner Trust 1997-A
(the "Issuer") formed by Chase Manhattan Bank USA, National Association, a
national banking association, and The Chase Manhattan Bank, a New York banking
corporation (each, a "Depositor" and collectively, the "Depositors").
A-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: By:
--------------------- --------------------------
Authenticating Agent
A-3
Issuer was created pursuant to a Certificate of Trust, filed with the
Delaware Secretary of State on July 17, 1997 and an original Trust Agreement,
dated as of July 18, 1997 and continued pursuant to an Amended and Restated
Trust Agreement dated as of October 1, 1997 (as amended and restated the "Trust
Agreement"), among the Depositors and Wilmington Trust Company, as owner trustee
(the "Owner Trustee"), a summary of certain of the pertinent provisions of which
is set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in Section 1.1 of the Sale
and Servicing Agreement dated as of October 1, 1997, among the Issuer and Chase
Manhattan Bank USA, National Association and The Chase Manhattan Bank, as
Sellers and The CIT Group/Sales Financing, Inc., as Servicer, as the same may be
amended or supplemented from time to time (the "Sale and Servicing Agreement").
This Certificate is one of the duly authorized Certificates of the
Issuer designated as "Asset Backed Certificates" (herein called the
"Certificates"). Issued under the Indenture dated as of October 1, 1997, between
the Issuer and Norwest Bank Minnesota, National Association, as indenture
trustee (the "Indenture"), are eight classes of Notes designated as "Class A-1
[______]% Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 [______]%
Asset Backed Notes" (the "Class A-2 Notes"), "Class A-3 [______]% Asset Backed
Notes" (the "Class A-3 Notes"), "Class A-4 [______]% Asset Backed Notes" (the
"Class A-4 Notes"), "Class A-5 [______]% Asset Backed Notes" (the "Class A-5
Notes"), "Class A-6 [______]% Asset Backed Notes" (the "Class A-6 Notes"),
"Class B [______]% Asset Backed Notes" (the "Class B Notes") and "Class C
[______]% Asset Backed Notes" (the "Class C Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes, the Class A-3, the Class A-4 Notes and the Class
A-5 Notes, the Class A-6 Notes, the Class B 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 each Depositor and the Certificateholders that, for
United States federal income tax purposes, the Issuer will be treated as a
partnership and the Depositors and the Certificateholders will be treated as
partners in that partnership. The Certificateholders by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as equity (i.e.,
partnership interests) in the Issuer.
Each Certificateholder, by its acceptance of a Certificate or
a beneficial interest in a Certificate, acknowledges and agrees
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that none of the Depositors or the Owner Trustee is authorized to elect to treat
the Issuer other than as a partnership for United States federal income tax
purposes or any relevant state tax purposes. Each Certificateholder, by its
acceptance of a Certificate or a beneficial interest in a Certificate, agrees
not to take any actions (or direct the Owner Trustee to take such acts or
actions) that would violate such restriction.
The Certificates do not represent an obligation of, or an interest in,
any of the Depositors, the Servicer, the Owner Trustee, the Indenture Trustee or
their respective Affiliates, 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 is subject to the restrictions on transfer set forth
in Section 3.4 of the Trust Agreement.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee or the Authentication
Agent, by manual or facsimile signature, this Certificate shall not entitle the
holder hereof to any benefit under the Trust Agreement or the Sale and Servicing
Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, 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.
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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 MARINE OWNER
TRUST 1997-A
By:
-------------------------------
not in its individual
capacity, but solely as
Owner Trustee
Dated: By:
-------------------------------
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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 Certificate mentioned herein, and all rights thereunder, hereby irrevocably
constituting and appointing
___________________________________________ as Attorney to transfer said
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
-----------------------------------*
Signature Guaranteed:
-----------------------------------*
--------
* NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange
or a commercial bank or trust company.
EXHIBIT B
CERTIFICATE OF TRUST
