UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 29, 1999
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
(Exact Name of registrant specified in its charter)
(Originator of the Chase Credit Card Master Trust)
United States 333-74303 22-2382028
(State or other Jurisdiction (Commission File Number) (I.R.S. employer
OF Incorporation) Identification No.)
802 Delaware Avenue
Wilmington, Delaware 19801
(Address of principal executive offices)
Registrant's telephone number, including area code: (302) 575-5000
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Item 5. Other Events
On September 23, 1999, the Underwriting Agreement, dated
September 23, 1999 (the "Underwriting Agreement"), among Chase Manhattan Bank
USA, National Association ("Chase USA"), as Transferor, The Chase Manhattan
Bank ("CMB"), as Servicer, and Chase Securities Inc. ("CSI"), as representative
of the Underwriters named therein, was executed and delivered by the respective
parties thereto. On September 29, 1999 the Series 1999-3 Supplement, dated as
of September 29, 1999, to the Second Amended and Restated Pooling and Servicing
Agreement, dated as of September 1, 1996 (the "Second Amended and Restated
Pooling and Servicing Agreement"), among Chase USA as Transferor on and after
June 1, 1996, CMB, as Transferor prior to June 1, 1996 and as Servicer, and
The Bank of New York, as Trustee (the "Trustee"), was executed and delivered
by the respective parties thereto. On September 29, 1999, the Indenture,
dated as of September 29, 1999 (the "Indenture"), between Chase Credit Card
Owner Trust 1999-3 (the "Trust") and The Bank of New York, as Indenture
Trustee, was executed and delivered by the respective parties thereto. On
September 29, 1999, the Trust Agreement, dated as of September 29, 1999 (the
"Trust Agreement"), between Chase USA, as Depositor (the "Depositor") and
Wilmington Trust Company, as Owner Trustee, was executed and delivered by the
respective parties thereto. On September 29, 1999, the Deposit and
Administration Agreement, dated as of September 29, 1999 (the "Deposit and
Administration Agreement"), between Chase USA, as Depositor and Administrator,
and the Trust, as Issuer, was executed and delivered by the respective parties
thereto.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits
Exhibits
1.3 Underwriting Agreement, dated September 23, 1999
among Chase USA, as Transferor, CMB, as Servicer, and CSI,
as representative of the Underwriters named therein.
4.8 Series 1999-3 Supplement, dated as of September 29,1999 to
the Second Amended and Restated Pooling and Servicing
Agreement, among Chase USA, as Transferor on and after
June 1, 1996, CMB, as Transferor prior to June 1, 1996 and
as Servicer, and the Trustee.
4.9 Indenture, dated as of September 29, 1999 between the Trust
and The Bank of New York, as Indenture Trustee.
4.10 Trust Agreement, dated as of September 29, 1999 between the
Depositor and Wilmington Trust Company, as Owner Trustee.
4.11 Deposit and Administration Agreement, dated as of
September 29, 1999 between Chase USA, as Depositor and
Administrator, and the Trust, as Issuer.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: /s/ Keith Schuck
_______________________________
Name: Keith Schuck
Title: Vice President
Date: October 4, 1999
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INDEX TO EXHIBITS
Exhibit Exhibit Sequentially
Number _______ Numbered Pages
_______ ______________
1.3 Underwriting Agreement, dated
September 23, 1999 among Chase USA,
as Transferor, CMB, as Servicer, and
CSI, as representative of the
Underwriters named therein.
4.8 Series 1999-3 Supplement, dated as of
September 29, 1999, to the Second Amended
and Restated Pooling and Servicing Agreement,
among Chase USA, as Transferor on and after
June 1, 1996, CMB, as Transferor prior to
June 1, 1996 and as Servicer, and the Trustee.
4.9 Indenture, dated as of September 29, 1999
between the Trust and The Bank of New York,
as Indenture Trustee.
4.10 Trust Agreement, dated as of September 29, 1999
between the Depositor and Wilmington Trust
Company, as Owner Trustee.
4.11 Deposit and Administration Agreement, dated
as of September 29, 1999 between Chase USA,
as Depositor and Administrator, and the Trust,
as Issuer.
Exhibit 1.3
CHASE CREDIT CARD OWNER TRUST 1999-3
UNDERWRITING AGREEMENT
(Standard Terms)
September 23, 1999
Chase Securities Inc.
As Underwriter and as
Representative of the
several Underwriters
named in the
Terms Agreement
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Chase Manhattan Bank USA, National Association (the "Bank"),
proposes to form the Chase Credit Card Owner Trust 1999-3_(the "Owner Trust")
to sell the Asset Backed Notes designated in the applicable Terms Agreement
(as hereinafter defined)(the "Notes"). The Notes will be issued pursuant to
an Indenture (the "Indenture") Agreement between the Owner Trust and the
Indenture Trustee as described in the applicable Terms Agreement (the
"Indenture Trustee"). The Notes designated in the applicable Terms Agreement
will be sold in a public offering through the underwriters listed on Schedule
I to the applicable Terms Agreement (the "Underwriters"). Notes of any
Series sold to the Underwriters shall be sold pursuant to a Terms Agreement
by and between the Bank and the Underwriters, a form of which is attached
hereto as Exhibit A (a "Terms Agreement"), which incorporates by reference
this Underwriting Agreement (the "Agreement," which may include the
applicable Terms Agreement if the context so requires). Notes sold pursuant
to any Terms Agreement may include the benefits of a letter of credit, cash
collateral guaranty or account, collateral interest, surety bond, insurance
policy, spread account, reserve account or other similar arrangement for the
benefit of the Noteholders of such Series. The term "Applicable Terms
Agreement" means the Terms Agreement dated the date hereof.
Each Note will represent an obligation of the Owner Trust. The
assets of the Owner Trust will include the Series Certificate which will be
issued by the Chase Credit Card Master Trust (the "Master Trust")
concurrently with the issuance of the Notes, the Owner Trust Spread Account
and the Note Distribution Account. Each Series Certificate will represent a
specified percentage undivided interest in the Master Trust. The Series
Certificate will be issued in the aggregate principal amount specified in the
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Terms Agreement pursuant to a Second Amended and Restated Pooling and
Servicing Agreement, dated as of September 1, 1996 (as amended and
supplemented as of the date hereof, the "Master Pooling and Servicing
Agreement") by and between the Bank, as Transferor and Servicer, and The Bank
of New York, as trustee (the "Master Trust Trustee"), as supplemented by the
Series Supplement specified in the Terms Agreement (the "Supplement" and
together with the Master Pooling and Servicing Agreement, the "Pooling and
Servicing Agreement"), by and between the Bank and the Master Trust Trustee.
The Series Certificate will be deposited into the Owner Trust by the Bank, as
Depositor, pursuant to a deposit and administration agreement between the
Bank and the Owner Trust (the "Deposit and Administration Agreement" )on or
before the Closing Date. The assets of the Master Trust include, among other
things, certain amounts due on a portfolio of MasterCard (Registered
Trademark) and VISA (Registered Trademark) revolving credit card accounts of
the Bank (the "Receivables"). To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the Indenture.
Unless otherwise stated herein or in the applicable Terms Agreement, as the
context otherwise requires or if such term is otherwise defined in the
Indenture, each capitalized term used or defined herein or in the applicable
Terms Agreement shall relate only to the Notes designated in the applicable
Terms Agreement and no other Notes issued by the Trust.
Section 1. Representations and Warranties of the Bank. Upon the
execution of the applicable Terms Agreement, the Bank represents and warrants
to the Underwriters that:
(a) The Bank has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Act"), a registration
statement on Form S-3 (having the registration number stated in the
applicable Terms Agreement), including a form of prospectus, relating to
the Series Certificate and the Notes. Such registration statement, as
amended at the time it was declared effective by the Commission,
including all material incorporated by reference therein, including all
information contained in any Additional Registration Statement (as
defined herein) and deemed to be part of such registration statement as
of the time such Additional Registration Statement (if any) was declared
effective by the Commission pursuant to the General Instructions of the
Form on which it was filed and including all information (if any) deemed
to be a part of such registration statement as of the time it was
declared effective by the Commission pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act (such registration statement, the "Initial
Registration Statement") has been declared effective by the Commission.
If any post-effective amendment has been filed with respect to the
Initial Registration Statement, prior to the execution and delivery of
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the applicable Terms Agreement, the most recent such amendment has been
declared effective by the Commission. If (i) an additional registration
statement, including the contents of the Initial Registration Statement
incorporated by reference therein and including all information (if any)
deemed to be a part of such additional registration statement pursuant
to Rule 430A(b)(the "Additional Registration Statement") relating to the
Series Certificate and the Notes has been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed,
has become effective upon filing pursuant to Rule 462(b), then the
Series Certificate and the Notes have been duly registered under the Act
pursuant to the Initial Registration Statement and such Additional
Registration Statement or (ii) an Additional Registration Statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and
will become effective upon filing pursuant to Rule 462(b), then upon
such filing the Series Certificate and the Notes will have been duly
registered under the Act pursuant to the Initial Registration Statement
and such Additional Registration Statement. If the Bank does not
propose to amend the Initial Registration Statement or, if an Additional
Registration Statement has been filed and the Bank does not propose to
amend it and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of the applicable Terms Agreement, the most recent amendment
(if any) to each such registration statement has been declared effective
by the Commission or has become effective upon filing pursuant to Rule
462(c) under the Act or, in the case of any Additional Registration
Statement, Rule 462(b). The Initial Registration Statement and any
Additional Registration Statement are hereinafter referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement." Copies of the Registration Statements,
together with any post-effective amendments have been furnished to the
Underwriters. The Bank proposes to file with the Commission pursuant to
Rule 424 ("Rule 424") under the Act a supplement (the "Prospectus
Supplement") to the form of prospectus included in a Registration
Statement (such prospectus, in the form it appears in a Registration
Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424 is hereinafter referred to as the "Basic
Prospectus") relating to the Series Certificate and the Notes and the
plan of distribution thereof. The Basic Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement thereto,
is hereinafter referred to as the "Final Prospectus." Except to the
extent that the Underwriters shall agree in writing to a modification,
the Final Prospectus shall be in all substantial respects in the form
furnished to the Underwriters prior to the execution of the relevant
Terms Agreement, or to the extent not completed at such time, shall
contain only such material changes as the Bank has advised the
Underwriters, prior to such time, will be included therein. Any
preliminary form of the Prospectus Supplement which has heretofore been
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filed pursuant to Rule 424 is hereinafter called a "Preliminary Final
Prospectus;"
(b) The Initial Registration Statement, including such amendments
thereto as may have been required on the date of the applicable Terms
Agreement, and the Additional Registration Statement (if any), relating
to the Series Certificate or Notes, have been filed with the Commission
and such Initial Registration Statement as amended, and the Additional
Registration Statement (if any), have become effective. No stop order
suspending the effectiveness of the Initial Registration Statement or
the Additional Registration Statement (if any) has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Bank, threatened by the Commission;
(c) The Initial Registration Statement conforms, and any
amendments or supplements thereto and the Final Prospectus will conform,
in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939 and the Rules and Regulations thereunder, and do
not and will not, as of the applicable effective date as to the Initial
Registration Statement and any amendment thereto, as of the applicable
filing date as to the Final Prospectus and any supplement thereto, and
as of the Closing Date, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Additional Registration Statement (if any) and the Initial Registration
Statement conform, in all material respects to the requirements of the
Act, and do not and will not, as of the applicable effective date as to
the Additional Registration Statement, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall apply
only during the period that a prospectus relating to the Notes or the
Series Certificate is required to be delivered under the Act by dealers
in connection with the initial public offering of such Series
Certificate or Notes (such period being hereinafter sometimes referred
to as the "prospectus delivery period"); provided, further, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Bank by or on behalf of the Underwriters
specifically for use in connection with the preparation of a
Registration Statement and the Final Prospectus;
(d) As of the Closing Date, the representations and warranties of
the Bank, as Transferor, in the Pooling and Servicing Agreement and the
Supplement and as Depositor in the Deposit and Administration Agreement
will be true and correct;
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(e) The Bank has been duly organized and is validly existing as a
national bank in good standing under the laws of the United States, with
power and authority to own its properties and conduct its business as
described in the Final Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects
of the Bank and its subsidiaries, taken as a whole;
(f) The Series Certificate has been duly authorized, and, when
issued and delivered pursuant to the Pooling and Servicing Agreement,
duly authenticated by the Master Trust Trustee and deposited into the
Owner Trust in exchange for the Notes, will be duly and validly
executed, issued and delivered and entitled to the benefits provided by
the Pooling and Servicing Agreement and the Supplement; the Notes have
been duly authorized, and, when executed, duly authenticated by the
Indenture Trustee and delivered pursuant to the Indenture, and paid for
by the Underwriters in accordance with the terms of the Indenture and
the applicable Terms Agreement, the Notes will be duly and validly
executed, issued and delivered and will constitute legal, valid and
binding obligations of the Owner Trust, enforceable against the Owner
Trust in accordance with their terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights as such laws would
apply in the event of the insolvency, liquidation or reorganization or
other similar occurrence with respect to the Owner Trust or in the event
of any moratorium or similar occurrence affecting the Owner Trust and to
general principles of equity; and the Series Certificate, the Pooling
and Servicing Agreement, the Supplement, the Notes and the Indenture
conform to the descriptions thereof in the Final Prospectus in all
material respects;
(g) When executed and delivered by the parties thereto, the Owner
Trust Agreement will constitute a legal, valid and binding obligation of
the Bank, enforceable against the Bank in accordance with its terms,
except to the extent that the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, conservatorship, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights as such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with respect
to the Bank or in the event of any moratorium or similar occurrence
affecting the Bank and to general principles of equity;
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(h) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be
obtained or made by the Bank for the consummation of the transactions
contemplated by this Agreement, the applicable Terms Agreement, the
Deposit and Administration Agreement, the Pooling and Servicing
Agreement or the Supplement except such as have been obtained and made
under the Act, such as may be required under state securities laws and
the filing of any financing statements required to perfect the Trust's
interest in the Receivables;
(i) The Bank is not in violation of its Articles of Association or
By-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement
or instrument to which it is a party or by which it or its properties is
bound which would have a material adverse effect on the transactions
contemplated herein, in the Pooling and Servicing Agreement or the
Supplement. The execution, delivery and performance of this Agreement,
the applicable Terms Agreement, the Pooling and Servicing Agreement, the
Supplement and the Deposit and Administration Agreement, and the
issuance and deposit of the Series Certificate and issuance and sale of
the Notes and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms of, or constitute a
default under, any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Bank or any of its properties or any material agreement or instrument to
which the Bank is a party or by which the Bank is bound or to which any
of the properties of the Bank is subject, or the Articles of Association
or By-laws of the Bank except for any such breaches or violations or
defaults as would not individually or in the aggregate have a material
adverse effect on the transactions contemplated herein, in the Pooling
and Servicing Agreement and the Supplement and in the Indenture and the
Deposit and Administration Agreement;
(j) Other than as set forth or contemplated in the Final
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Bank, threatened to which any of the Bank or its
subsidiaries is or may be a party or to which any property of the Bank
or its subsidiaries is or may be the subject which, if determined
adversely to the Bank, could individually or in the aggregate reasonably
be expected to have a material adverse effect on the Bank's credit card
business or on the interests of the holders of the Series Certificate or
the Notes; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Initial Registration Statement
or the Additional Registration Statement (if any) or to be described in
the Initial Registration Statement, the Additional Registration
Statement (if any) or the Basic Prospectus which are not filed or
described as required; and
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(k) Each of this Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Bank.
Section 2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the covenants, representations and warranties herein set
forth, the Bank agrees to sell to the Underwriters, and the Underwriters
agree to purchase from the Bank, the principal amount of Notes set forth
opposite each Underwriter's name in Schedule I to the applicable Terms
Agreement. The purchase price for the Notes shall be as set forth in the
applicable Terms Agreement.
The Bank acknowledges and agrees that Chase Securities Inc. may
sell Notes to any of its affiliates, and that any such affiliates may sell
such Notes to Chase Securities Inc.
Section 3. Delivery and Payment. Unless otherwise provided in the
applicable Terms Agreement, payment for Notes shall be made to the Bank or to
its order by wire transfer of same day funds at the offices of Simpson
Thacher & Bartlett in New York, New York at 10:00 A.M., New York City time,
on the Closing Date (as hereinafter defined) specified in the Terms
Agreement, or at such other time on the same or such other date as the
Underwriters and the Bank may agree upon. The time and date of such payment
for the Notes as specified in the applicable Terms Agreement are referred to
herein as the "Closing Date." As used herein, the term "Business Day" means
any day other than a day on which banks are permitted or required to be
closed in New York City.
Unless otherwise provided in the applicable Terms Agreement,
payment for the Notes shall be made against delivery to the Underwriters of
the Notes registered in the name of Cede & Co. as nominee of The Depository
Trust Company and in such denominations as the Underwriters shall request in
writing not later than two full Business Days prior to the Closing Date. The
Bank shall make the Notes available for inspection by the Underwriters in New
York, New York not later than one full Business Day prior to the Closing
Date.
Section 4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public, which may
include selected dealers, as set forth in the Final Prospectus.
Section 5. Covenants of the Bank. The Bank covenants and agrees
with the Underwriters that upon the execution of the applicable Terms
Agreement:
(a) Promptly following the execution of such applicable Terms
Agreement, the Bank will prepare a Prospectus Supplement relating to the
issuance of the Series Certificate and the Notes, setting forth the
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amount of Notes covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such Notes are to
be purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the
Bank deems appropriate. The Bank will file such Prospectus Supplement
with the Commission pursuant to Rule 424 within the time prescribed
therein and will provide evidence satisfactory to the Underwriters of
such timely filing. In addition, to the extent that the Underwriters
(i) have provided to the Bank Collateral Term Sheets (as defined below)
that the Underwriters have provided to prospective investors, the Bank
will file such Collateral Term Sheets as an exhibit to a report on Form
8-K within two business days of its receipt thereof, or (ii) have
provided to the Bank Structural Term Sheets or Computational Materials
(each as defined below) that such Underwriters have provided to a
prospective investor, the Bank will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural Term Sheet
and Computational Materials, as soon as reasonably practicable after the
date of this Agreement, but in any event, not later than the date on
which the Final Prospectus is filed with the Commission pursuant to Rule
424.
(b) During the prospectus delivery period, before filing any
amendment or supplement to the Initial Registration Statement, the
Additional Registration Statement (if any) or the Final Prospectus, the
Bank will furnish to the Underwriters copies of the proposed amendment
or supplement for review and will not file any such proposed amendment
or supplement to which any Underwriter reasonably objects.
(c) During the prospectus delivery period, the Bank will advise
the Underwriters promptly after it receives notice thereof, (i) when any
amendment to any Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment or supplement to
any Registration Statement or the Final Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Bank of any notification with respect to any
suspension of the qualification of the Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and will use its best efforts to prevent the issuance of any
such stop order or notification and, if any is issued, will promptly use
its best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
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omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act, the Bank promptly will prepare
and file with the Commission, an amendment or a supplement which will
correct such statement or omission or effect such compliance.
(e) The Bank will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and will continue such
qualification in effect so long as reasonably required for distribution
of the Notes; provided, however, that the Bank shall not be obligated to
qualify to do business in any jurisdiction in which it is not currently
so qualified; and provided, further, that the Bank shall not be required
to file a general consent to service of process in any jurisdiction.
(f) The Bank will furnish to each Underwriter, without charge, two
copies of each Registration Statement (including exhibits thereto), one
of which will be signed, and to each Underwriter conformed copies of
each Registration Statement (without exhibits thereto) and, during the
prospectus delivery period, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as each
Underwriter may reasonably request.
(g) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall
cease to maintain a secondary market in the Notes, whichever first
occurs, the Bank will deliver to each Underwriter (i) the annual
statements of compliance pursuant to the Indenture and the Pooling and
Servicing Agreement, (ii) the annual independent certified public
accountants' reports furnished to the Master Trust Trustee, (iii) all
documents required to be distributed to Certificateholders of the Master
Trust and to Noteholders of the Owner Trust and (iv) all documents filed
with the Commission pursuant to the Exchange Act or any order of the
Commission thereunder, in each case as provided to the Indenture
Trustee, Master Trust Trustee or filed with the Commission, as soon as
such statements and reports are furnished to the Indenture Trustee,
Master Trust Trustee or filed or, if an affiliate of the Bank is not the
Servicer, as soon thereafter as practicable.
(h) The Bank will pay all expenses incident to the performance of
its obligations under this Agreement, including without limitation: (i)
expenses of preparing, printing and reproducing each Registration
Statement, the Preliminary Final Prospectus, the Final Prospectus, this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the Indenture, the Deposit and Administration Agreement, the
Supplement, the Series Certificate, and the Notes, (ii) the cost of
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delivering the Notes to the Underwriters, (iii) any fees charged by
investment rating agencies for the rating of the Series Certificate and
the Notes, (iv) the Indenture Trustee's and the Owner Trustee's fees and
the reasonable fees and disbursements of the counsel thereto; and (v)
the reasonable expenses and costs (not to exceed the amount specified in
the applicable Terms Agreement) incurred in connection with "blue sky"
qualification of the Notes for sale in those states designated by the
Underwriters and the printing of memoranda relating thereto (it being
understood that, except as specified in this paragraph (h) and in
Sections 8 and 9 hereof, the Underwriters will pay all of their costs
and expenses, including the fees of counsel to the Underwriters,
transfer taxes on resale of any Notes by them and advertising expenses
connected with any offers that they may make).
(i) To the extent, if any, that the rating provided with respect
to the Series Certificate or the Notes by the rating agency or agencies
that initially rate the Series Certificate or the Notes is conditional
upon the furnishing of documents or the taking of any other actions by
the Bank, the Bank shall furnish such documents and take any such other
actions.
(j) The Bank will cause the Trust to make generally available to
Noteholders and to the Underwriters as soon as practicable an earnings
statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Trust occurring after the effective date of
the Initial Registration Statement (or, if later, the effective date of
the Additional Registration Statement), which shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(k) During the period beginning on the date hereof and continuing
to and including the Business Day following the Closing Date, the Bank
will not offer, sell, contract to sell or otherwise dispose of any
credit card asset-backed securities of the Bank which are substantially
similar to the Notes without the prior written consent of each
Underwriter or unless such securities are referenced in the Terms
Agreement.
Section 6. Representations and Warranties of the Underwriters.
Each Underwriter represents, warrants, covenants and agrees with the Bank
that:
(a) It either (A) has not provided any potential
investor with a Collateral Term Sheet (that is required to be filed
with the Commission within two business days of first use under the
Terms of the Public Securities Association Letter as described
below), or (B) has, substantially contemporaneously with its first
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delivery of such Collateral Term Sheet to a potential investor,
delivered such Collateral Term Sheet to the Bank, which Collateral
Term Sheet, if any, is attached to this Agreement as Exhibit B.
(b) It either (A) has not provided any potential
investor with a Structural Term Sheet or Computational Materials, or
(B) has provided any such Structural Term Sheet or Computational
Materials to the Bank, which Structural Term Sheets and Computational
Materials, if any, are attached to this Agreement as Exhibit C.
(c) It either (A) has not provided any potential
investor with a Series Term Sheet or (B) has provided any Series Term
Sheet to the Bank, which Series Term Sheets, if any, are attached to
this Agreement as Exhibit D.
(d) Each Collateral Term Sheet bears a legend
indicating that the information contained therein will be superseded
by the description of the collateral contained in the Prospectus
Supplement and, except in the case of the initial Collateral Term
Sheet, that such information supersedes the information in all prior
Collateral Term Sheets.
(e) Each Structural Term Sheet and Series Term Sheet
and all Computational Materials bear a legend substantially as
follows (or in such other form as may be agreed prior to the date of
this Agreement):
This information does not constitute either an offer
to sell or a solicitation of an offer to buy any of
the securities referred to herein. Information
contained herein is confidential and provided for
information only, does not purport to be complete
and should not be relied upon in connection with any
decision to purchase the securities. This
information supersedes any prior versions hereof and
will be deemed to be superseded by any subsequent
versions including, with respect to any description
of the securities or the underlying assets, the
information contained in the final Prospectus and
accompanying Prospectus Supplement. Offers to sell
and solicitations of offers to buy the securities
are made only by the final Prospectus and the
related Prospectus Supplement.
(f) It (at its own expense) agrees to provide to the
Bank any accountants' letters obtained relating to the Collateral
-11-
<PAGE>
Term Sheets, Structural Term Sheets and Computational Materials,
which accountants' letters shall be addressed to the Bank.
(g) It has not, and will not, without the prior
written consent of the Bank, provide any Collateral Term Sheets,
Structural Term Sheets, Series Term Sheets or Computational Materials
to any investor after the date of this Agreement.
(h) For purposes of this Agreement, "Collateral Term
Sheets" and "Structural Term Sheets" shall have the respective
meanings assigned to them in the February 13, 1995 letter of Cleary,
Gottlieb, Steen & Hamilton on behalf of the Public Securities
Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral Term
Sheet" as used herein includes any subsequent Collateral Term Sheet
that reflects a substantive change in the information presented.
"Computational Materials" has the meaning assigned to it in the May
17, 1994 letter of Brown & Wood on behalf of Kidder, Peabody & Co.,
Inc. (which letter, and the SEC staff's response thereto, were
publicly available May 20, 1994). "Series Term Sheet" has the
meaning assigned to it in the April 4, 1996 letter of Latham &
Watkins on behalf of Greenwood Trust Company (which letter, and the
SEC staff's response thereto, were publicly available April 5, 1996).
(i) (x) It has not offered or sold, and shall not
offer or sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which do
not constitute an offer to the public in the United Kingdom for the
purposes of the Public Offers of Securities Regulations 1995; (y) it
has complied and shall comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United
Kingdom; and (z)it has only issued or passed on and shall only issue
or pass on in the United Kingdom any document received by it in
connection with the issue or sale of Notes to a person who is of kind
described in Article 11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exemptions) Order 1996 (as amended) or
is a person to whom the document may otherwise lawfully be issued or
passed on.
Section 7. Conditions to the Obligations of the
Underwriters. The obligations of the Underwriters to purchase and pay for
Notes on the Closing Date shall be subject to the accuracy of the
representations and warranties of the Bank contained herein, to the accuracy
of the statements of the Bank made in any Notes pursuant to the terms hereof,
-12-
<PAGE>
to the performance by the Bank of its obligations hereunder and under the
applicable Terms Agreement and to the following additional conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 in the manner and within the
applicable time period prescribed for such filing by the rules and
regulations of the Commission under the Act and in accordance with
Section 5(a) of this Agreement; and, as of the Closing Date, no stop
order suspending the effectiveness of any Registration Statement
shall have been issued, and no proceedings for such purpose shall
have been instituted or threatened by the Commission; and all
requests for additional information from the Commission with respect
to any Registration Statement shall have been complied with to the
reasonable satisfaction of the Representative.
(b) Subsequent to the date of this Agreement, there
shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Bank which materially impairs the investment
quality of the Notes; (ii) any suspension or material limitation of
trading of securities generally on the New York Stock Exchange or the
American Stock Exchange; (iii) a declaration of a general moratorium
on commercial banking activities in New York by either Federal or New
York State authorities; or (iv) any material outbreak or declaration
of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
judgment of the Representative, impracticable to market the Notes on
the terms specified herein and the applicable Terms Agreement.
(c) The Underwriters have received a certificate of a
Vice President or other proper officer of the Bank, dated the Closing
Date, in which such officer, to the best of his knowledge, shall
state that (i) the representations and warranties of the Bank in this
Agreement are true and correct in all material respects, (ii) the
Bank has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing
Date, (iii) no stop order suspending the effectiveness of a
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission and
(iv) the Final Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) The Bank shall have furnished to the Underwriters
the opinions of Simpson Thacher & Bartlett, counsel for the Bank,
-13-
<PAGE>
dated the Closing Date, in substantially the forms attached hereto as
Exhibit 1 (with respect to Rule 10b-5 and other matters), Exhibit 2
(with respect to corporate, UCC and FIRREA matters relating to the
Master Trust, the Receivables, the Owner Trust, the Series
Certificate and the Notes) and Exhibit 3 (with respect to tax
matters), with only such changes as shall be reasonably satisfactory
to the Representative.
(e) The Underwriters shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, one or
more opinions, each dated the Closing Date, with respect to the
validity of the Notes, the Initial Registration Statement, the
Additional Registration Statement (if any), the Final Prospectus,
certain matters of the Uniform Commercial Code, as adopted in the
State of Delaware, and such other related matters as the
Representative may reasonably require, and the Bank shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at
the Closing Date, PriceWaterhouseCoopers LLP (or such other
independent public accountants as shall be named in the applicable
Terms Agreement), certified independent public accountants for the
Bank, shall have furnished to the Underwriters a letter or letters,
dated respectively as of the date of the applicable Terms Agreement
and as of the Closing Date confirming that they are certified
independent public accountants within the meaning of the Act and the
Exchange Act, and the respective applicable published rules and
regulations thereunder and substantially in the form heretofore
agreed and otherwise in form and in substance satisfactory to the
Representative and counsel for the Underwriters.
(g) The Underwriters shall receive evidence satisfactory
to it that, on or before the Closing Date, UCC-1 financing statements
have been or are being filed in the office of the Secretary of State
of the State of Delaware, reflecting (i) the interest of the Master
Trust Trustee in the Receivables and the proceeds thereof, (ii) the
interest of the Owner Trust in the Series Certificate and (iii) the
interest of the Indenture Trustee, for the benefit of the holders of
the Notes, in the Series Certificate.
(h) The Underwriters shall have received from Emmet,
Marvin & Martin, LLP, counsel to the Master Trust Trustee, an
opinion, dated the Closing Date, to the effect that:
(i) The Master Trust Trustee has been duly
organized and is validly existing as a banking corporation
-14-
<PAGE>
under the laws of New York and has the corporate power and
authority to conduct business and affairs as a trustee.
(ii) The Master Trust Trustee has the
corporate power and authority to perform the duties and
obligations of trustee under, and to accept the trust
contemplated by, the Pooling and Servicing Agreement, and
the Supplement.
(iii) Each of the Pooling and Servicing
Agreement and the Supplement has been duly authorized,
executed, and delivered by the Master Trust Trustee and
constitutes a legal, valid and binding obligation of the
Master Trust Trustee enforceable against the Master Trust
Trustee in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law).
(iv) The Series Certificate has been duly
executed and authenticated by the Master Trust Trustee.
(v) Neither the execution nor the delivery by
the Master Trust Trustee of the Pooling and Servicing
Agreement and the Supplement nor the consummation of any of
the transactions contemplated thereby require the consent or
approval of, the giving of notice to, the registration with,
or the taking of any other action with respect to, any
governmental authority or agency under any existing federal
or state law governing the banking or trust powers of the
Master Trust Trustee.
(vi) The execution and delivery of the Pooling
and Servicing Agreement and the Supplement by the Master
Trust Trustee and the performance by the Master Trust
Trustee of their respective terms do not conflict with or
result in a violation of (x) any law or regulation of any
governmental authority or agency under any existing federal
or state law governing the banking or trust powers of the
Master Trust Trustee, or (y) the Certificate of
Incorporation or By-laws of the Master Trust Trustee.
(i) The Underwriters shall have received an opinion
ofRichards, Layton & Finger, special counsel to the Owner Trustee,
reasonably satisfactory to the Underwriters and their counsel, dated
-15-
<PAGE>
the Closing Date, in substantially the form attached hereto as
Exhibit 4, with only such changes as shall be reasonably satisfactory
to the Representative.
(j) The Underwriters shall have received an opinion of
Richards, Layton & Finger, special counsel to the Owner Trust,
reasonably satisfactory to the Underwriters and their counsel, dated
the Closing Date, in substantially the form attached hereto as
Exhibit 5, with only such changes as shall be reasonably satisfactory
to the Representative.
(k) The Underwriters shall have received an opinion of
Emmet, Marvin & Martin, LLP, special counsel to the Indenture
Trustee, reasonably satisfactory to the Underwriters and their
counsel, dated the Closing Date, in substantially the form attached
hereto as Exhibit 5, with only such changes as shall be reasonably
satisfactory to the Representative.
(l) The Underwriters shall have received evidence
satisfactory to them that the Series Certificate and the Notes shall
be rated in accordance with the applicable Terms Agreement by the
Rating Agency.
(m) The Underwriters shall have received a certificate
of a Vice President or other proper officer of the Servicer, dated
the Closing Date, in which such officer, to the best of his or her
knowledge, shall state that the representations and warranties of the
Servicer in the Pooling and Servicing Agreement and the Supplement
are true and correct.
(n) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto
shall be reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters in all material
respects and the Underwriters and counsel for the Underwriters shall
have received such information, certificates and documents as the
Underwriters or counsel for the Underwriters may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Underwriters.
Notice of such cancellation shall be given to the Bank in writing or by
telephone or facsimile confirmed in writing.
-16-
<PAGE>
Section 8. Reimbursement of Underwriters' Expenses. If the
sale of the Notes provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7
(other than the condition set forth in paragraph (b) of Section 7) is not
satisfied, or because of any refusal, inability or failure on the part of the
Bank to perform any agreement herein or comply with any provision hereof
other than by reason of a default by the Underwriters, the Bank will
reimburse the Underwriter for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred
by it in connection with the proposed purchase and sale of the Notes and upon
demand the Bank shall pay the full amount thereof to the Representative.
Section 9. Indemnification and Contribution. (a) The Bank
agrees to indemnify and hold harmless the Underwriters, each of the directors
thereof, each of the officers who are involved in the Offering and each
person, if any, who controls each Underwriter within the meaning of the Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange
Act or any other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement as originally filed or in any amendment thereof, or in
any Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by it in connection with investigating or
preparing to defend or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that (i) the Bank
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made in any of
such documents in reliance upon and in conformity with written information
furnished to the Bank by or on behalf of the Underwriters specifically for
use therein, and (ii) such indemnity with respect to any Preliminary Final
Prospectus shall not inure to any benefit of any Underwriter (or any person
controlling any of the Underwriters) from whom the person asserting any such
loss, claim, damage or liability purchased the Notes which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as supplemented) at or prior to the confirmation of the sale
of such Notes to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in
such Preliminary Final Prospectus was corrected in the Final Prospectus (or
the Final Prospectus as supplemented). This indemnity agreement will be in
addition to any liability which the Bank may otherwise have.
-17-
<PAGE>
(b) Each Underwriter agrees to indemnify and hold
harmless the Bank, each of the directors thereof, each of the officers who
signs a Registration Statement, and each person who controls the Bank within
the meaning of the Act, to the same extent as the foregoing indemnities from
the Bank to the Underwriters, but only with reference to written information
furnished to the Bank by or on behalf of each Underwriter specifically for
use in the preparation of the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which each Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 9 unless the
indemnifying party is materially prejudiced thereby. In case any such action
is brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
appoint counsel satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, that, if the defendants
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 9 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by the Underwriter(s) being indemnified in the case of paragraph (a)
of this Section 9, representing the indemnified parties under such paragraph
(a) who are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
-18-
<PAGE>
(d) If recovery is not available or is insufficient
under the foregoing indemnification provisions of this Section 9, for any
reason other than as specified herein, the parties entitled to
indemnification by the terms hereof shall be entitled to contribution to
liabilities and expenses, except to the extent that contribution is not
permitted under Section 11(f) of the Act. In determining the amount of
contribution to which the Bank and the Underwriter are entitled, there shall
be considered the relative benefits received by each from the offering of the
Notes (taking into account the total proceeds of the offering received by the
Bank and the total underwriting discounts and commissions received by the
Underwriters), their relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. The Bank and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation. None of
the Underwriters nor any person controlling any Underwriter shall be
obligated to make contribution hereunder which in the aggregate exceeds the
total public offering price of the Notes purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages which any
Underwriter and its controlling persons have otherwise been required to pay
in respect of the same claim or any substantially similar claim.
Section 10. Default by an Underwriter. If, on the Closing
Date, any Underwriter or Underwriters default in the performance of its or
their obligations under this Agreement, the Representative may make
arrangements for the purchase of such Notes by other persons satisfactory to
the Bank and the Representative, including any of the Underwriters, but if no
such arrangements are made by the Closing Date, then each remaining
non-defaulting Underwriter shall be severally obligated to purchase the Notes
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on the Closing Date in the respective proportions which the
principal amount of Notes set forth opposite the name of each remaining
non-defaulting Underwriter in Schedule I to the Terms Agreement bears to the
aggregate principal amount of Notes set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule I to the Terms Agreement;
provided, however, that the remaining non-defaulting Underwriters shall not
be obligated to purchase any of the Notes on the Closing Date if the
aggregate principal amount of Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds one-eleventh
of the aggregate principal amount of the Notes to be purchased on the Closing
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase in total more than 110% of the principal amount of the Notes which
it agreed to purchase on the Closing Date pursuant to the terms of Section 2.
If the foregoing maximums are exceeded and the remaining Underwriters or
other underwriters satisfactory to the Representative and the Bank do not
elect to purchase the Notes which the defaulting Underwriter or Underwriters
-19-
<PAGE>
agreed but failed to purchase, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Bank, except
that the provisions of Section 11 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context otherwise requires, any party
not listed in Schedule I to the Terms Agreement who, pursuant to this Section
10, purchases Notes which a defaulting Underwriter agreed but failed to
purchase.
Section 11. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and other
statements of the Bank and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf
of you or the Bank or any of the officers, directors or controlling persons
referred to in Section 9 hereof, and will survive delivery of and payment for
the Notes. The provisions of Sections 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
Section 12. Notices. All communication hereunder shall be
in writing and, if sent to the Underwriters will be mailed, delivered or
telecopied and confirmed to them at 270 Park Avenue, New York, New York
10017, Attention: David A. Howard Jr., Telecopy No: (212) 834-6564; if sent
to the Bank, will be mailed, delivered or telecopied and confirmed to them
care of Chase Manhattan Bank USA, National Association, at 802 Delaware
Avenue, Wilmington, Delaware, 19801, Telecopy No.: (302) 575-5467, Attention:
Keith Schuck, Vice President.
Section 13. Secondary Trust or Special Purpose Vehicle.
Each Underwriter severally represents that it will not, at any time that such
Underwriter is acting as an "underwriter" (as defined in Section 2(11) of the
Act) with respect to the Notes, transfer, deposit or otherwise convey any
Notes into a trust or other type of special purpose vehicle that issues
securities or other instruments backed in whole or in part by, or that
represents interests in, such Notes without the prior written consent of the
Bank.
Section 14. Miscellaneous. This Agreement is to be
governed by, and construed in accordance with, the laws of the State of New
York; it may be executed in two or more counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns and the officers and directors and controlling persons
referred to in Section 9 hereof, and no other person shall have any right or
obligation hereunder. This Agreement supersedes all prior agreements and
understandings between the parties relating to the subject matter hereof,
-20-
<PAGE>
other than those contained in the Terms Agreement executed in connection
herewith. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 15. Effectiveness. This Agreement shall become
effective upon execution and delivery of the applicable Terms Agreement.
-21-
<PAGE>
If you are in agreement with the foregoing, please sign the
counterpart hereof and return it to the Bank, whereupon this letter and your
acceptance shall become a binding agreement among the Bank and the
Underwriters.
Very truly yours,
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By_____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
CHASE SECURITIES INC.
as representative of the
Underwriters named in
Schedule I hereto
By _____________________________
Name:
Title:
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<PAGE>
Exhibit A
CHASE CREDIT CARD OWNER TRUST 1999-3__
CLASS A 6.66% ASSET BACKED NOTES, SERIES 1999-3
CLASS B 6.95% ASSET BACKED NOTES, SERIES 1999-3
CLASS C FLOATING RATE ASSET BACKED NOTES, SERIES 1999-3
TERMS AGREEMENT
Dated: September 23, 1999
To: Chase Manhattan Bank USA, National Association
Re: Underwriting Agreement dated September 23, 1999
Series Designation: Series 1999-3
Underwriters:
The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Agreement and for the purposes of the
above-referenced Underwriting Agreement as such Underwriting Agreement is
incorporated herein and made a part hereof.
Terms of the Notes:
Initial Invested Interest Rate
Class Amount or Formula Price to Public <F1>
______ ________________ _____________ ___________________
Class A $850,000,000 6.66% 99.966344%
Class B $ 48,295,000 6.95% 99.959103%
Class C $ 67,615,000 LIBOR + 0.95 100.00%
[FN]
<F1> Plus accrued interest at the applicable rate from September 29, 1999.
Payment Dates: Class A: the 15th day of each month (or if such 15th day is
not a business day the next succeeding business day), commencing November 15,
1999.
-1-
<PAGE>
Class B: the 15th calendar day (or if such 15th day is not a business day,
the next succeeding business day) of each month, commencing November 15,
1999.
Class C: the 15th calendar day (or if such 15th day is not a business day,
the next succeeding business day) of each month, commencing November 15,
1999.
Certificate Ratings:
Class A: AAA by Standard & Poor's
Aaa by Moody's
AAA by Fitch
Class B: A by Standard & Poor's
A2 by Moody's
A by Fitch
Class C: BBB by Standard & Poor's
Baa2 by Moody's
BBB by Fitch
Indenture: Indenture, dated as of September 29, 1999 between Wilmington Trust
Company, not in its individual capacity but solely as Owner Trustee for the
Chase Credit Card Owner Trust 1999-3 and The Bank of New York, as Indenture
Trustee and securities intermediary.
Indenture Trustee: The Bank of New York
Owner Trustee: Wilmington Trust Company
Master Trust Trustee: The Bank of New York
Pooling and Servicing Agreement: The Second Amended and Restated Pooling and
Servicing Agreement, dated as of September 1, 1996, as amended, between Chase
Manhattan Bank USA, National Association, as Transferor on and after June 1,
1996, The Chase Manhattan Bank, as Transferor prior to June 1, 1996 and as
Servicer, and The Bank of New York, as Master Trust Trustee, on behalf of the
Certificateholders of Chase Credit Card Master Trust.
Supplement: Series 1999-3 Supplement, dated as of September 29, 1999,
between Chase Manhattan Bank USA, National Association, as Transferor on and
after June 1, 1996, The Chase Manhattan Bank, as Transferor prior to June 1,
1996 and as Servicer, and The Bank of New York, as Master Trust Trustee, on
behalf of the Series 1999-3_Certificateholders.
Series Certificate: Series 1999-3
-2-
<PAGE>
Purchase Price:
The purchase price payable by the Underwriters for the Notes
covered by this Agreement will be the following percentage of the principal
amounts to be issued:
Per Class A Notes: 99.716344%
Per Class B Notes: 99.684103%
Per Class C Notes: 99.675%
Registration Statement: Registration No. 333-74303
Underwriting Commissions, Concessions and Discounts:
The Underwriter's discounts and commissions, the concessions
that the Underwriter may allow to certain dealers, and the discounts that
such dealers may reallow to certain other dealers, each expressed as a
percentage of the principal amount of the Class A Notes, Class B Notes and
Class C Notes shall be as follows:
Underwriting
Discounts Selling
Class and Concessions Concessions Reallowances
_____ _______________ ___________ ____________
Class A 0.250% 0.150% 0.125%
Class B 0.275% 0.175% 0.125%
Class C 0.325% 0.200% 0.125%
Closing Date: September 29, 1999, 10:00 a.m., New York Time
Location of Closing: Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, New York 10017
Payment for the Notes: Wire transfer of same day funds
Blue Sky Fees: Up to $25,000
-3-
<PAGE>
Opinion Modifications: None
Other securities being offered concurrently: None.
Expenses: Notwithstanding Section 5(h) of the Underwriting Agreement, the
Underwriters have agreed to reimburse the Bank for expenses associated with
preparing and printing the Final Prospectus.
-4-
<PAGE>
The Underwriters agree, severally and not jointly, subject
to the terms and provisions of the above referenced Underwriting Agreement
which is incorporated herein in its entirety and made a part hereof, to
purchase the respective principal amounts of the above referenced Series of
Certificates set forth opposite their names on Schedule I hereto.
CHASE SECURITIES INC.
As Representative of
the Underwriters named
in Schedule I hereto
By:_______________________
Name:
Title:
Accepted:
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
By:_______________________
Name:
Title:
-5-
<PAGE>
SCHEDULE I
UNDERWRITERS
$850,000,000 Principal Amount of Class A 6.66% Asset Backed Certificates,
Series 1999-3_
Principal Amount
________________
Chase Securities Inc. $595,000,000
Bank One Capital Markets, Inc. 85,000,000
Merrill, Lynch, Pierce, Fenner & Smith
Incorporated 85,000,000
Salomon Smith Barney Inc. 85,000,000
Total $850,000,000
$48,295,000 Principal Amount of Class B 6.95% Asset Backed Certificates,
Series 1999-3
Principal Amount
________________
Chase Securities Inc. $48,295,000
$67,615,000 Principal Amount of Class C Floating Rate Asset Backed
Certificates, Series 1999-3_
Principal Amount
________________
Chase Securities Inc. $67,615,000
-6-
Exhibit 4.8
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CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
Transferor on and after June 1, 1996,
THE CHASE MANHATTAN BANK,
Transferor prior to June 1, 1996 and Servicer
and
THE BANK OF NEW YORK,
Trustee
on behalf of the Series 1999-3 Certificateholders
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SERIES 1999-3 SUPPLEMENT
Dated as of September 29, 1999
to
SECOND AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1996
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CHASE CREDIT CARD MASTER TRUST
Series 1999-3
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SERIES 1999-3 SUPPLEMENT, dated as of September 29, 1999 (this
"Series Supplement"), by and among CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION ("Chase USA"), as Transferor on and after June 1, 1996, THE CHASE
MANHATTAN BANK, as Transferor prior to June 1, 1996 and as Servicer, and THE
BANK OF NEW YORK, as Trustee under the Second Amended and Restated Pooling
and Servicing Agreement dated as of September 1, 1996 between Chase USA, the
Servicer and the Trustee (as may be amended, modified or supplemented from
time to time, the "Agreement").
Section 6.9 of the Agreement provides, among other things, that the
Transferor and the Trustee may at any time and from time to time enter into a
supplement to the Agreement for the purpose of authorizing the delivery by
the Trustee to the Transferor for the execution and redelivery to the Trustee
for authentication of one or more Series of Certificates;
Pursuant to this Series Supplement, the Transferor and the Trust
shall create a new Series of Investor Certificates and shall specify the
Principal Terms thereof;
On the Closing Date, the Certificates will be deposited by the
Transferor in the Chase Credit Card Owner Trust 1999-3 (the "Owner Trust")
and pledged by the Owner Trustee to an indenture trustee to secure certain
notes to be issued by the Owner Trust.
SECTION 1. Designation.
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(a) There is hereby created a Series of Investor Certificates to be
issued in a single class pursuant to the Agreement and this Series Supplement
and to be known as the "Series 1999-3 Certificates." The Series 1999-3
Certificates shall be substantially in the form of Exhibit A hereto.
(b) Series 1999-3 shall be included in Group One (as defined
below). Series 1999-3 shall not be subordinated to any other Series.
SECTION 2. Definitions.
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In the event that any term or provision contained herein shall
conflict with or be inconsistent with any provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern.
All Article, Section or subsection references herein shall mean Articles,
Sections or subsections of the Agreement, except as otherwise provided
herein. All capitalized terms not otherwise defined herein are defined in
the Agreement. Each capitalized term defined herein shall relate only to the
Investor Certificates and no other Series of Certificates issued by the
Trust.
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"Accumulation Period" shall mean, solely for the purposes of the
definition of Monthly Principal Payment as such term is defined in each
Supplement, the Controlled Accumulation Period.
"Accumulation Period Factor" shall mean, for each Monthly Period, a
fraction, the numerator of which is equal to the sum of the initial investor
interests (or other amounts specified in the applicable Supplement) of all
outstanding Series, and the denominator of which is equal to the sum of (a)
the Initial Investor Interest, (b) the initial investor interests (or other
amounts specified in the applicable Supplement) of all outstanding Series
(other than Series 1999-3) which are not expected to be in their revolving
periods, and (c) the initial investor interests (or other amounts specified
in the applicable Supplement) of all other outstanding Series which are not
allocating Shared Principal Collections to other Series and are in their
revolving periods.
"Accumulation Period Length" shall have the meaning assigned such
term in subsection 4.9(e).
"Accumulation Period Reserve Account" shall have the meaning
specified in subsection 4.14(a).
"Accumulation Period Reserve Account Funding Date" shall mean the
Transfer Date which occurs not later than the earliest of (a) the Transfer
Date with respect to the Monthly Period which commences three months prior to
the commencement of the Controlled Accumulation Period; (b) the first
Transfer Date for which the Portfolio Adjusted Yield is less than 2%, but in
such event the Accumulation Period Reserve Account Funding Date shall not be
required to occur earlier than the Transfer Date with respect to the Monthly
Period which commences 12 months prior to the commencement of the Controlled
Accumulation Period; (c) the first Transfer Date for which the Portfolio
Adjusted Yield is less than 3%, but in such event the Accumulation Period
Reserve Account Funding Date shall not be required to occur earlier than the
Transfer Date with respect to the Monthly Period which commences six months
prior to the commencement of the Controlled Accumulation Period; and (d) the
first Transfer Date for which the Portfolio Adjusted Yield is less than 4%,
but in such event the Reserve Account Funding Date shall not be required to
occur earlier than the Transfer Date with respect to the Monthly Period which
commences four months prior to the commencement of the Controlled
Accumulation Period.
"Accumulation Period Reserve Account Surplus" shall mean, with
respect to any date of determination, the amount by which the amount on
deposit in the Accumulation Period Reserve Account exceeds the Required
Accumulation Period Reserve Account Amount.
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"Accumulation Period Reserve Draw Amount" shall have the meaning
specified in subsection 4.14(c).
"Accumulation Shortfall" shall initially mean zero and shall
thereafter mean, with respect to any Monthly Period during the Controlled
Accumulation Period, the excess, if any, of the Controlled Deposit Amount for
the previous Monthly Period over the amount deposited into the Principal
Funding Account pursuant to subsection 4.9(c)(i) with respect to the
Certificates for the previous Monthly Period.
"Adjusted Investor Interest" shall mean, with respect to any date
of determination, an amount equal to the Investor Interest as of such date
minus the Principal Funding Account Balance as of such date.
"Aggregate Investor Default Amount" shall mean, with respect to any
Monthly Period, the sum of the Investor Default Amounts in respect of such
Monthly Period.
"Assignee" shall have the meaning specified in subsection 16(a).
"Available Accumulation Period Reserve Account Amount" shall mean,
with respect to any Transfer Date, the lesser of (a) the amount on deposit in
the Accumulation Period Reserve Account on such date (after taking into
account any interest and earnings retained in the Accumulation Period Reserve
Account pursuant to subsection 4.14(b) on such date, but before giving effect
to any deposit made or to be made in the Accumulation Period Reserve Account
on such date) and (b) the Required Accumulation Period Reserve Account
Amount.
"Available Investor Finance Charge Collections" shall mean, with
respect to any Monthly Period, an amount equal to the sum of (a) the Floating
Allocation of the Collections of Finance Charge Receivables allocated to the
Investor Certificates and deposited in the Finance Charge Account for such
Monthly Period (or to be deposited in the Finance Charge Account on the
related Transfer Date with respect to the preceding Monthly Period pursuant
to the third paragraph of subsection 4.3(a) and Section 2.8 of the Agreement
and subsection 3(b) of this Series Supplement), excluding the portion of
Collections of Finance Charge Receivables attributable to Servicer
Interchange, (b) with respect to any Monthly Period during the Controlled
Accumulation Period prior to the payment in full of the Investor Interest,
the Principal Funding Investment Proceeds arising pursuant to subsection
4.13(b), if any, with respect to the related Transfer Date and (c) the
Accumulation Period Reserve Draw Amount (up to the Available Accumulation
Period Reserve Account Amount) plus any amounts of interest and earnings
described in subsections 4.14(b) 4.14 (c) and 4.14(d) which will be deposited
into the Finance Charge Account on the related Transfer Date.
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"Available Investor Principal Collections" shall mean with respect
to any Monthly Period, an amount equal to (a) the Investor Principal
Collections for such Monthly Period, minus (b) the amount of Reallocated
Principal Collections with respect to such Monthly Period which pursuant to
Section 4.11 are required to fund the Class A Note Interest Requirement, the
Class B Note Interest Requirement and the Net Investor Servicing Fee, plus
(c) the amount of Shared Principal Collections with respect to other Series
that are allocated to Series 1999-3 in accordance with subsection 4.12(b).
"Base Rate" shall mean, with respect to any Monthly Period, the
annualized percentage equivalent of a fraction, the numerator of which is
equal to the sum of the Class A Note Interest Requirement, the Class B Note
Interest Requirement and the Net Class C Note Interest Requirement, each for
the related Note Interest Period, and the Investor Servicing Fee with respect
to such Monthly Period and the denominator of which is the Investor Interest
as of the close of business on the last day of such Monthly Period; provided,
however, that with respect to the August 1999, September 1999 and October
1999 Monthly Periods, Base Rate shall mean the sum of (i) the weighted
average of the Class A Note Interest Rate, the Class B Note Interest Rate and
the Class C Note Interest Rate and (ii) 2%; provided that the Class C Note
Interest Rate shall be determined based on LIBOR as calculated for such
Monthly Periods pursuant to the Series 1999-1 Supplement to the Agreement
plus 0.95% per annum.
"Certificateholders" shall mean the Persons in whose names the
Series 1999-3 Certificates are registered in the Certificate Register.
"Certificate Reassignment Date" shall mean the date on which the
Investor Certificates are retransferred to the Transferor in accordance with
the terms specified in Section 4 of this Series Supplement and subsection
12.2(a) of the Agreement.
"Certificates" shall mean the certificates executed by the
Transferor and authenticated by or on behalf of the Trustee, substantially in
the form of Exhibit A hereto.
"Class A Note Interest Requirement" shall have the meaning set
forth in the Indenture.
"Class B Note Interest Requirement" shall have the meaning set
forth in the Indenture.
"Closing Date" shall mean September 29, 1999.
"Controlled Accumulation Amount" shall mean (a) for any Transfer
Date with respect to the Controlled Accumulation Period prior to the
Scheduled Principal Allocation Commencement Date, $70,833,334; provided,
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however, that if the commencement of the Controlled Accumulation Period is
determined to be less than 12 months pursuant to subsection 4.9(e), the
Controlled Accumulation Amount for each Transfer Date with respect to the
Controlled Accumulation Period prior to the Scheduled Principal Allocation
Commencement Date, will be equal to (x) 88% of the Initial Investor Interest
divided by (y) the number of Monthly Periods in the Controlled Accumulation
Period as determined pursuant to subsection 4.9(e) and (b) for any Transfer
Date with respect to the Controlled Accumulation Period after the Scheduled
Principal Allocation Commencement Date, zero.
"Controlled Accumulation Period" shall mean, unless a Pay Out Event
shall have occurred prior thereto, the period commencing at the close of
business on August 31, 2003 or such later date as is determined in accordance
with subsection 4.9(e) and ending on the first to occur of (a) the
commencement of the Rapid Amortization Period and (b) the Series 1999-3
Termination Date.
"Controlled Deposit Amount" shall mean, with respect to any
Transfer Date, the sum of (a) the Controlled Accumulation Amount for such
Transfer Date and (b) any existing Accumulation Shortfall.
"Covered Amount" shall mean, as of the Transfer Date with respect
to any Interest Period, an amount equal to one-twelfth of the product of (a)
the Class A Note Interest Rate and (b) the Principal Funding Account Balance
as of the close of business on the Distribution Date preceding such Transfer
Date (after giving effect to all of the transactions occurring on such date).
"Cumulative Series Principal Shortfall" shall mean the sum of the
Series Principal Shortfalls (as such term is defined in each of the related
Series Supplements) for each Series.
"Daily Principal Shortfall" shall mean, on any date of
determination, the excess of the Monthly Principal Payment for the Monthly
Period relating to such date over the month to date amount of Collections
processed in respect of Principal Receivables for such Monthly Period
allocable to investor certificates of all outstanding Series, not subject to
reallocation, which are on deposit or to be deposited in the Principal
Account on such date.
"Distribution Date" shall mean November 15, 1999 and the fifteenth
day of each calendar month thereafter, or if such fifteenth day is not a
Business Day, the next succeeding Business Day.
"Excess Principal Funding Investment Proceeds" shall mean, with
respect to each Transfer Date relating to the Controlled Accumulation Period,
the amount, if any, by which the Principal Funding Investment Proceeds for
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such Transfer Date exceed the Covered Amount determined on such Transfer
Date.
"Finance Charge Shortfall" shall mean, with respect to any Transfer
Date, the excess, if any, of the amount distributable pursuant to subsections
4.9(a)(i) through (viii) over Available Investor Finance Charge Collections.
"Fitch" shall mean Fitch IBCA, Inc. or its successors.
"Fixed Investor Percentage" shall mean, with respect to any Monthly
Period, the percentage equivalent of a fraction, the numerator of which is
the Investor Interest as of the close of business on the last day of the
Revolving Period and the denominator of which is the greater of (a) the sum
of (i) the aggregate amount of Principal Receivables in the Trust determined
as of the close of business on the last day of the prior Monthly Period and
(ii) the Excess Funding Amount as of the close of business on such last day
of the prior Monthly Period and (b) the sum of the numerators used to
calculate the Investor Percentages (as such term is defined in the Agreement)
for allocations with respect to Principal Receivables for all outstanding
Series on such date of determination; provided, however, that with respect to
any Monthly Period in which an Addition Date occurs or in which a Removal
Date occurs, the amount determined pursuant to clause (a)(i) hereof shall be
the quotient of (A) the sum of (I) the aggregate amount of Principal
Receivables in the Trust as of the close of business on the last day of the
prior Monthly Period multiplied by the actual number of days in the period
from and including the first day of such Monthly Period to but excluding the
related Addition Date or Removal Date and (II) the aggregate amount of
Principal Receivables in the Trust as of the beginning of the day on the
related Addition Date or Removal Date after adjusting for the aggregate
amount of Principal Receivables added to or removed from the Trust on the
related Addition Date or Removal Date, multiplied by the actual number of
days in the period from and including the related Addition Date or Removal
Date to and including the last day of such Monthly Period divided by (B) the
actual number of days in such Monthly Period.
"Floating Investor Percentage" shall mean, with respect to any
Monthly Period, the percentage equivalent of a fraction, the numerator of
which is the Adjusted Investor Interest as of the close of business on the
last day of the prior Monthly Period (or with respect to the first Monthly
Period, the Initial Investor Interest) and the denominator of which is the
greater of (a) the sum of (i) the aggregate amount of Principal Receivables
as of the close of business on the last day of the prior Monthly Period (or
with respect to the first calendar month in the first Monthly Period, the
aggregate amount of Principal Receivables in the Trust as of the close of
business on the day immediately preceding the Closing Date, and with respect
to the second calendar month in the first Monthly Period, the aggregate
amount of Principal Receivables as of the close of business on the last day
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of the first calendar month in the first Monthly Period) and (ii) the Excess
Funding Amount as of the close of business on such last day of the prior
Monthly Period and (b) the sum of the numerators used to calculate the
Investor Percentages (as such term is defined in the Agreement) for
allocations with respect to Finance Charge Receivables, Default Amounts or
Principal Receivables, as applicable, for all outstanding Series on such date
of determination; provided, however, that with respect to any Monthly Period
in which an Addition Date occurs or in which a Removal Date occurs, the
amount determined pursuant to clause (a)(i) hereof shall be the quotient of
(A) the sum of (I) the aggregate amount of Principal Receivables in the Trust
as of the close of business on the last day of the prior Monthly Period
multiplied by the actual number of days in the period from and including the
first day of such Monthly Period to but excluding the related Addition Date
or Removal Date and (II) the aggregate amount of Principal Receivables in the
Trust as of the beginning of the day on the related Addition Date or Removal
Date after adjusting for the aggregate amount of Principal Receivables added
to or removed from the Trust on the related Addition Date or Removal Date,
multiplied by the actual number of days in the period from and including the
related Addition Date or Removal Date to and including the last day of such
Monthly Period divided by (B) the actual number of days in such Monthly
Period.
"Group One" shall mean Series 1999-3 and each other Series
specified in the related Supplement to be included in Group One.
"Indenture" shall mean that certain agreement, dated as of
September 29, 1999 between the Chase Credit Card Owner Trust 1999-3 and The
Bank of New York, as indenture trustee.
"Initial Investor Interest" shall mean the initial aggregate
principal amount of the Certificates, which is $965,910,000.
"Initial Purchaser" shall have the meaning set forth in subsection
16(c).
"Interest Period" shall mean, with respect to any Distribution
Date, the period from and including the previous Distribution Date through
the day preceding such Distribution Date, except that the initial Interest
Period shall be the period from and including the Closing Date through the
day preceding the initial Distribution Date.
"Investor Certificateholders" shall mean the holders of record of
the Series 1999-3 Certificates.
"Investor Certificates" shall mean the Series 1999-3 Certificates.
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"Investor Charge-Offs" shall have the meaning specified in Section
4.10.
"Investor Default Amount" shall mean, with respect to any
Receivable in a Defaulted Account, an amount equal to the product of (a) the
Default Amount and (b) the Floating Investor Percentage on the day such
Account became a Defaulted Account.
"Investor Interest" shall mean, on any date of determination, an
amount equal to (a) the Initial Investor Interest, minus (b) the aggregate
amount of principal payments made to the Certificates prior to such date and
minus (c) the aggregate amount of Investor Charge-Offs pursuant to Section
4.10 and Reallocated Principal Collections pursuant to Section 4.11 plus (d)
the aggregate amount of Available Investor Finance Charge Collections
allocated and available on all prior Transfer Dates pursuant to subsection
4.9(a)(vi) for the purpose of reimbursing the amount of any reduction
pursuant to clause (c); provided, however, that the Investor Interest may not
be reduced below zero.
"Investor Percentage" shall mean for any Monthly Period, (a) with
respect to Collections of Finance Charge Receivables and Default Amounts at
any time and Collections of Principal Receivables during the Revolving
Period, the Floating Investor Percentage and (b) with respect to Collections
of Principal Receivables during the Controlled Accumulation Period or the
Rapid Amortization Period, the Fixed Investor Percentage.
"Investor Principal Collections" shall mean, with respect to any
Monthly Period, the sum of (a) the aggregate amount deposited into the
Principal Account for such Monthly Period pursuant to subsections 4.5(a)(ii),
4.5(b)(ii), or 4.5(c)(ii), in each case, as applicable to such Monthly Period
and (b) the aggregate amount to be treated as Investor Principal Collections
pursuant to subsections 4.9(a)(v) and (vi) for such Monthly Period (other
than such amount paid from Reallocated Principal Collections).
"Investor Servicing Fee shall have the meaning specified in
subsection 3(a) hereof.
"Minimum Transferor Interest Percentage" shall mean 7%.
"Monthly Period" shall have the meaning specified in the Agreement,
except that the first Monthly Period with respect to the Investor
Certificates shall begin on and include the Closing Date and shall end on and
include November 14, 1999.
"Monthly Principal Payment" shall mean with respect to any Monthly
Period, for all Series (including Series 1999-3) which are in an Amortization
Period or Accumulation Period (as such terms are defined in the related
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Supplements for all Series), the sum of (a) the Controlled Distribution
Amount for the related Transfer Date for any Series in its Controlled
Amortization Period (as such terms are defined in the related Supplements for
all Series), (b) the Controlled Deposit Amount for the related Transfer Date
for any Series in its Accumulation Period, other than its Rapid Accumulation
Period, if applicable (as such terms are defined in the related Supplements
for all Series), (c) the Investor Interest as of the end of the prior Monthly
Period taking into effect any payments to be made on the following
Distribution Date for any Series in its Principal Amortization Period or
Rapid Amortization Period (as such terms are defined in the related
Supplements for all Series), (d) the Adjusted Investor Interest as of the end
of the prior Monthly Period taking into effect any payments or deposits to be
made on the following Transfer Date and Distribution Date for any Series in
its Rapid Accumulation Period (as such terms are defined in the related
Supplements for all Series), and (e) such other amounts as may be specified
in the related Supplements for all Series.
"Monthly Principal Reallocation Amount" shall mean with respect to
any Monthly Period an amount equal to the sum of (A) the lower of (i) the
excess of the Class A Note Interest Requirement over the Available Investor
Finance Charge Collections allocated with respect thereto pursuant to
subsection 4.9(a)(i) and (ii) the greater of (a) (x) the product of (I) 12.0%
and (II) the Initial Investor Interest minus (y) the amount of unreimbursed
Investor Charge-Offs (after giving effect to Investor Charge-Offs for the
related Monthly Period) and unreimbursed Reallocated Principal Collections
(as of the previous Distribution Date) and (b) zero; and (B) the lower of (i)
the excess of the Class B Note Interest Requirement and the Net Investor
Servicing Fee over the Available Investor Finance Charge Collections
allocated with respect thereto pursuant to subsections 4.9(a)(i)and
4.9(a)(ii)and (ii) the greater of (a) the product of (I) 7.0% and (II) the
Initial Investor Interest minus the amount of unreimbursed Investor Charge-
Offs (after giving effect to Investor Charge-Offs for the related Monthly
Period) and unreimbursed Reallocated Principal Collections as of the previous
Distribution Date) and (b) zero.
"Net Class C Note Interest Requirement" shall have the meaning set
forth in the Indenture.
"Net Investor Servicing Fee" shall mean that portion of the
Investor Servicing Fee allocable to the Series 1999-3 Certificates with
respect to any Transfer Date.
"Net Servicing Fee Rate" shall mean 1.0% per annum.
"Note Interest Period" shall have the meaning set forth in the
Indenture.
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"Note Interest Requirement" shall have the meaning set forth in
subsection 4.6(a).
"Owner Trust Spread Account" shall have the meaning set forth in
the Indenture.
"Pay Out Commencement Date" shall mean the date on which a Trust
Pay Out Event is deemed to occur pursuant to Section 9.1 or a Series 1999-3
Pay Out Event is deemed to occur pursuant to Section 9 hereof.
"Portfolio Yield" shall mean, with respect to any Monthly Period,
the annualized percentage equivalent of a fraction, the numerator of which is
an amount equal to the sum of (a) the amount of Collections of Finance Charge
Receivables deposited into the Finance Charge Account and allocable to the
Investor Certificates for such Monthly Period,(b) the Principal Funding
Investment Proceeds deposited into the Finance Charge Account on the Transfer
Date related to such Monthly Period and (c) the amount of the Accumulation
Period Reserve Draw Amount (up to the Available Accumulation Period Reserve
Account Amount) plus any amounts of interest and earnings described in
subsections 4.14(b), 4.14(c) and 4.14(d), each deposited into the Finance
Charge Account on the Transfer Date relating to such Monthly Period, such sum
to be calculated on a cash basis after subtracting the Investor Default
Amount for such Monthly Period, and the denominator of which is the Investor
Interest as of the close of business on the last day of such Monthly Period;
provided, however, that with respect to the August 1999, September 1999 and
October 1999 Monthly Periods, Portfolio Yield shall mean "Portfolio Yield" as
calculated in accordance with the definition thereof in the Series 1999-1
Supplement to the Agreement.
"Principal Funding Account" shall have the meaning set forth in
subsection 4.13(a).
"Principal Funding Account Balance" shall mean, with respect to any
date of determination, the principal amount, if any, on deposit in the
Principal Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall mean, with respect to
each Transfer Date, the investment earnings on funds in the Principal Funding
Account (net of investment expenses and losses) for the period from and
including the immediately preceding Transfer Date to but excluding such
Transfer Date.
"Principal Funding Investment Shortfall" shall mean, with respect
to each Transfer Date relating to the Controlled Accumulation Period, the
amount, if any, by which the Principal Funding Investment Proceeds for such
Transfer Date are less than the Covered Amount determined as of such Transfer
Date.
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"Rapid Amortization Period" shall mean the Amortization Period
commencing on the Pay Out Commencement Date and ending on the earlier to
occur of (a) the Series 1999-3 Termination Date and (b) the termination of
the Trust pursuant to Section 12.1.
"Rating Agency" shall mean Moody's, Standard & Poor's and Fitch.
"Rating Agency Condition" shall mean, with respect to Series 1999-
3, the written confirmation of the Rating Agency that a specified event or
modification of the terms of Series 1999-3 will not result in the withdrawal
or downgrade of the rating of any class of the Asset Backed Notes of Chase
Credit Card Owner Trust 1999-3 then in effect.
"Reallocated Principal Collections" shall mean with respect to any
Transfer Date, Investor Principal Collections applied in accordance with
Section 4.11 in an amount not to exceed the lesser of the Monthly Principal
Reallocation Amount for the related Monthly Period and the Investor Interest
after giving effect to any Investor Charge-Offs for such Transfer Date.
"Required Accumulation Factor Number" shall be equal to a fraction,
rounded upwards to the nearest whole number, the numerator of which is one
and the denominator of which is equal to the lowest monthly principal payment
rate on the Accounts, expressed as a decimal, for the 12 months preceding the
date of such calculation.
"Required Accumulation Period Reserve Account Amount" shall mean,
with respect to any Transfer Date on or after the Accumulation Period Reserve
Account Funding Date, an amount equal to (a) the product of (i) 88.0%, (ii)
the Initial Investor Interest and (iii) 0.5% or (b) any other amount
designated by the Transferor; provided, however, that if such designation is
of a lesser amount, the Transferor shall (i) provide the Servicer and the
Trustee with evidence that the Rating Agency Condition shall have been
satisfied and (ii) deliver to the Trustee a certificate of an authorized
officer to the effect that, based on the facts known to such officer at such
time, in the reasonable belief of the Transferor, such designation will not
cause a Pay Out Event or an event that, after the giving of notice or the
lapse of time, would cause a Pay Out Event to occur with respect to Series
1999-3.
"Required Amount" shall have the meaning set forth in Section 4.8.
"Required Owner Trust Spread Account Amount" shall have the meaning
set forth in the Indenture.
"Revolving Period" shall mean the period from and including the
Closing Date to, but not including, the earlier of (a) the day the Controlled
Accumulation Period commences and (b) the Pay Out Commencement Date.
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"Scheduled Principal Allocation Commencement Date" shall mean the
September 2004 Distribution Date.
"Series 1999-3" shall mean the Series of the Chase Credit Card
Master Trust represented by the Investor Certificates.
"Series 1999-3 Certificateholders" shall mean the holders of
records of Series 1999-3 Certificates.
"Series 1999-3 Pay Out Event" shall have the meaning specified in
Section 9 hereof.
"Series 1999-3 Termination Date" shall mean the earliest to occur
of (a) the Distribution Date on which the Investor Interest is paid in full,
(b) the January 2007 Distribution Date and (c) the Trust Termination Date.
"Series Principal Shortfall" shall mean with respect to any
Transfer Date, the excess, if any, of (a) (i) with respect to any Transfer
Date relating to the Controlled Accumulation Period, the Controlled Deposit
Amount for such Transfer Date, and (ii) with respect to any Transfer Date
during the Rapid Amortization Period, the Adjusted Investor Interest over (b)
the Investor Principal Collections minus the Reallocated Principal
Collections for such Transfer Date.
"Series Servicing Fee Percentage" shall mean 2.0%.
"Servicer Interchange" shall mean, for any Monthly Period, the
portion of Collections of Finance Charge Receivables allocated to the
Investor Certificates and deposited in the Finance Charge Account with
respect to such Monthly Period that is attributable to Interchange; provided,
however, that Servicer Interchange for a Monthly Period shall not exceed one-
twelfth of the product of (i) the Adjusted Investor Interest as of the last
day of such Monthly Period and (ii) 1.00%.
"Shared Excess Finance Charge Collections" shall mean, with respect
to any Distribution Date, as the context requires, either (x) the amount
described in subsection 4.9(a)(ix) allocated to the Series 1999-3
Certificates but available to cover shortfalls in amounts paid from
Collections of Finance Charge Receivables for other Series, if any or (y) the
aggregate amount of Collections of Finance Charge Receivables allocable to
other Series in excess of the amounts necessary to make required payments
with respect to such Series, if any, and available to cover shortfalls with
respect to the Investor Certificates.
"Shared Principal Collections" shall mean either (a) the amount
allocated to the Investor Certificates which may be applied to the Series
Principal Shortfall with respect to other outstanding Series or (b) the
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amounts allocated to the investor certificates of other Series which the
applicable Supplements for such Series specify are to be treated as "Shared
Principal Collections" and which may be applied to cover the Series Principal
Shortfall with respect to the Investor Certificates.
"Targeted Holder" shall mean each holder of a right to receive
interest or principal with respect to the Investor Certificates (or other
interests in the Trust), other than certificates (or other such interests)
with respect to which an opinion is rendered that such certificates (or other
such interests) will be treated as debt for federal income tax purposes, and
any holder of a right to receive any amount in respect of the Transferor
Interest; provided, that any Person holding more than one interest each of
which would cause such Person to be a Targeted Holder shall be treated as a
single Targeted Holder.
"Transfer" shall have the meaning specified in subsection 16(a).
SECTION 3. Servicing Compensation and Assignment of Interchange.
(a) The share of the Servicing Fee allocable to Series 1999-3 with respect to
any Transfer Date (the "Investor Servicing Fee") shall be equal to one-
twelfth of the product of (i) the Series Servicing Fee Percentage and (ii)
the Adjusted Investor Interest as of the last day of the Monthly Period
preceding such Transfer Date; provided, however, that with respect to the
first Transfer Date, the Investor Servicing Fee shall be equal to the product
of (i) a fraction, the numerator of which is the number of days from and
including the Closing Date to and including the last day of the October 1999
Monthly Period and the denominator of which is 360, (ii) 2.0% and (iii) the
Initial Investor Interest on the Closing Date. On each Transfer Date a
portion of Interchange with respect to the related Monthly Period that is on
deposit in the Finance Charge Account shall be withdrawn from the Finance
Charge Account and paid to the Servicer in payment of a portion of the
Investor Servicing Fee with respect to such Monthly Period ("Servicer
Interchange"). Should the Servicer Interchange on deposit in the Finance
Charge Account on any Transfer Date with respect to the related Monthly
Period be less than one-twelfth of 1.00% of the Adjusted Investor Interest as
of the last day of such Monthly Period, the Investor Servicing Fee with
respect to such Monthly Period will not be paid to the extent of such
insufficiency of Servicer Interchange on deposit in the Finance Charge
Account. The share of the Investor Servicing Fee allocable to the
Certificateholders with respect to any Transfer Date (the "Net Investor
Servicing Fee") shall be equal to one-twelfth of the product of (i) the Net
Servicing Fee Rate and (ii) the Adjusted Investor Interest as of the last day
of the Monthly Period preceding such Transfer Date; provided, however, that
with respect to the first Transfer Date, the Net Investor Servicing Fee shall
be equal to the product of (i) a fraction, the numerator of which is the
number of days from and including the Closing Date to and including the last
day of the October 1999 Monthly Period and the denominator of which is 360,
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(ii) the Net Servicing Fee Rate and (iii) the Investor Interest on the
Closing Date. Except as specifically provided above, the Servicing Fee shall
be paid by the cash flows from the Trust allocated to the Transferor or the
certificateholders of other Series (as provided in the related Supplements)
and in no event shall the Trust, the Trustee or the Investor
Certificateholders be liable therefor. The Net Investor Servicing Fee shall
be payable to the Servicer solely to the extent amounts are available for
distribution in respect thereof pursuant to subsection 4.9(a)(iii).
(b) On or before each Transfer Date, the Transferor shall notify
the Servicer of the amount of Interchange to be included as Collections of
Finance Charge Receivables and allocable to the Investor Certificateholders
with respect to the preceding Monthly Period as determined pursuant to this
subsection 3(b). Such amount of Interchange shall be equal to the product of
(i) the aggregate amount of Interchange with respect to such Monthly Period
and (ii) the Investor Percentage with respect to Finance Charge Receivables
for such Monthly Period. On each Transfer Date, the Transferor shall pay to
the Servicer, and the Servicer shall deposit into the Finance Charge Account,
in immediately available funds, the amount of Interchange to be so included
as Collections of Finance Charge Receivables allocable to the Investor
Certificates with respect to the preceding Monthly Period.
SECTION 4. Reassignment and Transfer Terms. The Investor
Certificates shall be subject to retransfer to the Transferor at its option,
in accordance with the terms specified in subsection 12.2(a), on any
Distribution Date on or after the Distribution Date on which the Investor
Interest is reduced to an amount less than or equal to 5% of the Initial
Investor Interest. The deposit required in connection with any such
repurchase shall include the amount, if any, on deposit in the Principal
Funding Account and will be equal to the sum of (a) the Investor Interest and
(b) accrued and unpaid interest on the Investor Certificates through the day
preceding the Distribution Date on which the repurchase occurs.
SECTION 5. Delivery and Payment for the Investor Certificates.
The Transferor shall execute and deliver the Series 1999-3 Certificates to
the Trustee for authentication in accordance with Section 6.1. The Trustee
shall deliver such Certificates when authenticated in accordance with Section
6.2.
SECTION 6. Form of Delivery of Investor Certificates.
The Certificates shall be delivered as Registered Certificates as
provided in Section 6.1.
SECTION 7. Article IV of Agreement. Sections 4.1, 4.2 and 4.3
shall be read in their entirety as provided in the Agreement. Article IV
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(except for Sections 4.1, 4.2 and 4.3 thereof) shall be read in its entirety
as follows and shall be applicable only to the Investor Certificates:
ARTICLE IV
RIGHTS OF THE CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.4 Rights of the Certificateholders. The Investor
Certificates shall represent undivided interests in the Trust, consisting of
the right to receive, to the extent necessary to make the required payments
with respect to such Investor Certificates at the times and in the amounts
specified in this Agreement, (a) the Floating Investor Percentage and Fixed
Investor Percentage (as applicable from time to time) of Collections received
with respect to the Receivables and (b) funds on deposit in the Collection
Account, the Finance Charge Account, the Excess Funding Account, the
Principal Account, the Principal Funding Account, the Accumulation Period
Reserve Account and the Distribution Account. The Transferor Certificate
shall not represent any interest in the Collection Account, the Finance
Charge Account, the Principal Account, the Excess Funding Account, the
Principal Funding Account, the Accumulation Period Reserve Account or the
Distribution Account, except as specifically provided in this Article IV.
SECTION 4.5 Allocations.
(a) Allocations During the Revolving Period. During the Revolving
Period, the Servicer shall, prior to the close of business on the day any
Collections are deposited in the Collection Account, allocate to the Investor
Certificateholders or the Holder of the Transferor Certificate and pay or
deposit from the Collection Account the following amounts as set forth below:
(i) Deposit into the Finance Charge Account an amount equal to the
product of (A) the Investor Percentage on the Date of Processing of such
Collections and (B) the aggregate amount of Collections processed in
respect of Finance Charge Receivables on such Date of Processing to be
applied in accordance with Section 4.9.
(ii) (A) Deposit into the Principal Account an amount equal to the
product of (1) the Investor Percentage on the Date of Processing of such
Collections and (2) the aggregate amount of Collections processed in
respect of Principal Receivables on such Date of Processing; provided,
however, that the amount deposited into the Principal Account pursuant
to this subsection 4.5(a)(ii)(A) shall not exceed the Daily Principal
Shortfall, and (B) pay to the Holder of the Transferor Certificate an
amount equal to the excess, if any, identified in the proviso to clause
(A) above; provided, however, that the amount to be paid to the Holder
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of the Transferor Certificate pursuant to this subsection 4.5(a)(ii)(B)
with respect to any Date of Processing shall be paid to the Holder of
the Transferor Certificate only if the Transferor Interest on such Date
of Processing is greater than the Minimum Transferor Interest (after
giving effect to the inclusion in the Trust of all Receivables created
on or prior to such Date of Processing and the application of payments
referred to in subsection 4.3(b)) and otherwise shall be deposited into
the Excess Funding Account.
(b) Allocations During the Controlled Accumulation Period. During
the Controlled Accumulation Period, the Servicer shall, prior to the close of
business on the day any Collections are deposited in the Collection Account,
allocate to the Investor Certificateholders or the Holder of the Transferor
Certificate and pay or deposit from the Collection Account the following
amounts as set forth below:
(i) Deposit into the Finance Charge Account an amount equal to the
product of (A) the Investor Percentage on the Date of Processing of such
Collections and (B) the aggregate amount of Collections processed in
respect of Finance Charge Receivables on such Date of Processing to be
applied in accordance with Section 4.9.
(ii) (A) Deposit into the Principal Account an amount equal to the
product of (1) the Investor Percentage on the Date of Processing of such
Collections and (2) the aggregate amount of Collections processed in
respect of Principal Receivables on such Date of Processing; provided,
however, that the amount deposited into the Principal Account pursuant
to this subsection 4.5(b)(ii)(A) shall not exceed the Daily Principal
Shortfall, and (B) pay to the Holder of the Transferor Certificate an
amount equal to the excess, if any, identified in the proviso to clause
(A) above; provided, however, that the amount to be paid to the Holder
of the Transferor Certificate pursuant to this subsection 4.5(b)(ii)(B)
with respect to any Date of Processing shall be paid to the Holder of
the Transferor Certificate only if the Transferor Interest on such Date
of Processing is greater than the Minimum Transferor Interest (after
giving effect to the inclusion in the Trust of all Receivables created
on or prior to such Date of Processing and the application of payments
referred to in subsection 4.3(b)) and otherwise shall be deposited into
the Excess Funding Account.
(c) Allocations During the Rapid Amortization Period. During the
Rapid Amortization Period, the Servicer shall, prior to the close of business
on the day any Collections are deposited in the Collection Account, allocate
to the Investor Certificateholders and pay or deposit from the Collection
Account the following amounts as set forth below:
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(i) Deposit into the Finance Charge Account an amount equal to the
product of (A) the Investor Percentage on the Date of Processing of such
Collections and (B) the aggregate amount of Collections processed in
respect of Finance Charge Receivables on such Date of Processing to be
applied in accordance with Section 4.9.
(ii) (A) Deposit into the Principal Account an amount equal to the
product of (1) the Investor Percentage on the Date of Processing of such
Collections and (2) the aggregate amount of Collections processed in
respect of Principal Receivables on such Date of Processing; provided,
however, that the amount deposited into the Principal Account pursuant
to this subsection 4.5(c)(ii)(A) shall not exceed the sum of the
Investor Interest as of the close of business on the last day of the
prior Monthly Period (after taking into account any payments to be made
on the Distribution Date relating to such prior Monthly Period and
deposits and any adjustments to be made to the Investor Interest to be
made on the Transfer Date relating to such Monthly Period) and any
Reallocated Principal Collections relating to the Monthly Period in
which such deposit is made and (B) pay to the Holder of the Transferor
Certificate an amount equal to the excess, if any, identified in the
proviso to clause (A) above; provided, however, that the amount to be
paid to the Holder of the Transferor Certificate pursuant to this
subsection 4.5(c)(ii)(B) with respect to any Date of Processing shall be
paid to the Holder of the Transferor Certificate only if the Transferor
Interest on such Date of Processing is greater than the Minimum
Transferor Interest (after giving effect to the inclusion in the Trust
of all Receivables created on or prior to such Date of Processing and
the application of payments referred to in subsection 4.3(b)) and
otherwise shall be deposited into the Excess Funding Account.
(d) Limitation on Required Deposits. With respect to the Investor
Certificates, and notwithstanding anything in the Agreement or this Series
Supplement to the contrary, whether or not the Servicer is required to make
monthly or daily deposits from the Collection Account into the Finance Charge
Account or the Principal Account pursuant to subsections 4.5(a), 4.5(b) and
4.5(c), with respect to any Monthly Period (i) the Servicer will only be
required to deposit Collections from the Collection Account into the Finance
Charge Account or the Principal Account in an amount equal to the lesser of
(x) the amount required to be deposited into any such deposit account
pursuant to subsection 4.5(a), 4.5(b) or 4.5(c) and (y) the amount required
to be distributed on or prior to the related Distribution Date to the
Investor Certificateholders and (ii) if at any time prior to such
Distribution Date the amount of Collections deposited in the Collection
Account exceeds the amount required to be deposited pursuant to clause (i)
above, the Servicer will be permitted to withdraw the excess from the
Collection Account. To the extent that, in accordance with this subsection
4.5(d), the Servicer has retained amounts which would otherwise be required
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to be deposited in the Finance Charge Account or the Principal Account with
respect to any Monthly Period, the Servicer shall be required to deposit such
amounts in the Finance Charge Account or the Principal Account on the related
Transfer Date to the extent necessary to make required distributions to the
Investor Certificateholders on the related Distribution Date, including any
amounts which are required to be applied as Reallocated Principal
Collections.
For so long as the Servicer shall (i) satisfy the conditions
specified in the third paragraph of subsection 4.3(a) of the Agreement and
(ii) be making deposits to the Principal Account and Finance Charge Account
on a monthly basis, all requirements herein to deposit amounts on a daily
basis shall be deemed to be satisfied to the extent that the required monthly
deposit is made and all references to amounts on deposit in such accounts
shall be deemed to include amounts which would otherwise have been deposited
therein on a daily basis.
SECTION 4.6 Determination of Required Monthly Interest Payment.
The amount of monthly interest distributable to the Series Certificates
shall be an amount equal to the sum of the Class A Note Interest Requirement,
the Class B Note Interest Requirement and the Net Class C Note Interest
Requirement (collectively, the "Note Interest Requirement"); provided,
however, that with respect to the first Distribution Date, each of the Class
A Note Interest Requirement, the Class B Note Interest Requirement and the
Net Class C Note Interest Requirement will include, accrued interest at the
applicable Note Interest Rate from the Closing Date through November 14,
1999.
SECTION 4.7 Determination of Monthly Principal Payments.
The amount of monthly principal distributable from the Principal
Account with respect to the Investor Certificates on each Transfer Date,
beginning with the Transfer Date in the month following the month in which
the Controlled Accumulation Period or, if earlier, the Rapid Amortization
Period, begins, shall be equal to the least of (i) the Available Investor
Principal Collections on deposit in the Principal Account with respect to
such Transfer Date, (ii) for each Transfer Date with respect to the
Controlled Accumulation Period, the Controlled Deposit Amount for such
Transfer Date and (iii) the Adjusted Investor Interest on such Transfer Date
prior to any deposit into the Principal Funding Account to be made on such
day.
SECTION 4.8 Coverage of Required Amount. On or before each
Transfer Date, the Servicer will determine the amount (the "Required Amount")
by which (A) the sum of (i) the Class A Note Interest Requirement, (ii) the
Class B Note Interest Requirement and (iii) the Net Class C Note Interest
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Requirement plus (B) the Net Investor Servicing Fee for the prior Monthly
Period plus (C) the Net Investor Servicing Fee, if any, due but not paid on
any prior Transfer Date plus, (D) the Investor Default Amount for the prior
Monthly Period, if any, exceeds the amount of Available Investor Finance
Charge Collections for such Monthly Period. In the event the Required Amount
is greater than zero, the Servicer shall give written notice to the Trustee
of such positive Required Amount for such Transfer Date and all or a portion
of the Shared Excess Finance Charge Collections allocable to Series 1999-3
with respect to such Transfer Date in an amount equal to the Required Amount,
to the extent available, for such Transfer Date shall be distributed from the
Finance Charge Account on such Transfer Date in accordance with the priority
of payments set forth in subsection 4.9(a).
SECTION 4.9 Monthly Payments. On or before each Transfer Date,
the Servicer shall instruct the Trustee in writing (which writing shall be
substantially in the form of Exhibit B hereto) to withdraw and the Trustee,
acting in accordance with such instructions, shall withdraw on such Transfer
Date or the related Distribution Date, as applicable, to the extent of
available funds, the amounts required to be withdrawn from the Finance Charge
Account, the Principal Account, the Principal Funding Account and the
Distribution Account as follows:
(a) An amount equal to the Available Investor Finance Charge
Collections for the related Monthly Period shall be distributed on each
Transfer Date in the following priority:
(i) an amount equal to Class A Note Interest Requirement for the
related Transfer Date, shall be distributed by the Servicer or the
Trustee to the Certificateholders;
(ii) an amount equal the Class B Note Interest Requirement for the
related Transfer Date shall be distributed by the Servicer or the
Trustee to the Certificateholders;
(iii) an amount equal to the Net Investor Servicing Fee for such
Transfer Date plus the amount of any Net Investor Servicing Fee due but
not paid to the Servicer on any prior Transfer Date shall be distributed
to the Servicer;
(iv) an amount equal to the Net Class C Note Interest Requirement
for the related Transfer Date, shall be distributed by the Servicer or
the Trustee to the Certificateholders;
(v) an amount equal to the Investor Default Amount, if any, for
the preceding Monthly Period shall be treated as a portion of Available
Investor Principal Collections and deposited into the Principal Account on
such Transfer Date;
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(vi) an amount equal to the aggregate amount by which the Investor
Interest has been reduced below the Initial Investor Interest for
reasons other than the payment of principal to the Certificateholders
(but not in excess of the aggregate amount of such reductions which have
not been previously reimbursed) shall be deposited in the Principal
Account on such Transfer Date and treated as a portion of Available
Investor Principal Collections;
(vii) on and after the Accumulation Period Reserve Account Funding
Date, but prior to the date on which the Accumulation Period Reserve
Account terminates, the Trustee will deposit an amount up to the excess,
if any, of the Required Accumulation Period Reserve Account Amount over
the Available Accumulation Period Reserve Account Amount into the
Accumulation Period Reserve Account;
(viii) an amount equal to the excess, if any, of the Required
Owner Trust Spread Account Amount over the amount then on deposit in the
Owner Trust Spread Account will be paid to the Certificateholders; and
(ix) the balance, after payments made pursuant to clauses (i)
through (viii) above, first will be treated as Excess Finance Charge
Collections which will be available to cover shortfalls, if any, in
amounts payable from collections of Finance Charge Receivables with
respect to other Series in accordance with the Agreement, and then the
balance, if any, remaining after any such sharing will be paid to the
Certificateholders.
To the extent of the Finance Charge Shortfall, if any, following
the application on each Transfer Date of Available Investor Finance Charge
Collections as described above, the Servicer shall instruct the Trustee in
writing (which writing shall be substantially in the form of Exhibit B
hereto) to apply Shared Excess Finance Charge Collections with respect to
Group One allocable to Series 1999-3 in the priority set forth above.
(b) During the Revolving Period, an amount equal to the Available
Investor Principal Collections deposited into the Principal Account for the
related Monthly Period shall be distributed on each Transfer Date in the
following priority:
(i) an amount equal to the lesser of (A) the product of (1) a
fraction, the numerator of which is equal to the Available Investor
Principal Collections and the denominator of which is equal to the sum
of the Available Investor Principal Collections available for sharing as
specified in the related Supplement for each Series and (2) the
Cumulative Series Principal Shortfall and (B) Available Investor
Principal Collections, shall remain in the Principal Account to be
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treated as Shared Principal Collections and applied to Series other than
this Series 1999-3; and
(ii) an amount equal to the excess, if any, of (A) the Available
Investor Principal Collections for such Transfer Date over (B) the
applications specified in subsection 4.9(b)(i) above shall be paid to
the Holder of the Transferor Certificate; provided, however, that the
amount to be paid to the Holder of the Transferor Certificate pursuant
to this subsection 4.9(b)(ii) with respect to such Transfer Date shall
be paid to the Holder of the Transferor Certificate only if the
Transferor Interest on such Date of Processing is greater than the
Minimum Transferor Interest (after giving effect to the inclusion in the
Trust of all Receivables created on or prior to such Transfer Date and
the application of payments referred to in subsection 4.3(b)) and
otherwise deposited into the Excess Funding Account.
(c) During the Controlled Accumulation Period or the Rapid
Amortization Period, an amount equal to the Available Investor Principal
Collections deposited into the Principal Account for the related Monthly
Period shall be distributed on each Transfer Date in the following priority:
(i) an amount equal to the least of (i) the Available Investor
Principal Collections on deposit in the Principal Account with respect
to such Transfer Date, (ii) for each Transfer Date with respect to the
Controlled Accumulation Period, the applicable Controlled Deposit Amount
for such Transfer Date and (iii) the Adjusted Investor Interest prior to
any deposits on such Transfer Date, shall be (A) during the Controlled
Accumulation Period, deposited into the Principal Funding Account, and
(B) during the Rapid Amortization Period paid to the Certificateholders;
and
(ii) an amount equal to the lesser of (A) the product of (1) a
fraction, the numerator of which is equal to the Available Investor
Principal Collections remaining after the application specified in
subsection 4.9(c)(i) above and the denominator of which is equal to the
sum of the Available Investor Principal Collections available for
sharing as specified in the related Supplement for each Series and (2)
the Cumulative Series Principal Shortfall and (B) Available Investor
Principal Collections, shall remain in the Principal Account to be
treated as Shared Principal Collections and applied to Series other than
this Series 1999-3; and
(iii) an amount equal to the excess, if any, of (A) the Available
Investor Principal Collections for such Transfer Date over (B) the
applications specified in subsection 4.9(c)(i) and (ii) above shall be
paid to the Holder of the Transferor Certificate; provided, however,
that the amount to be paid to the Holder of the Transferor Certificate
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pursuant to this subsection 4.9(c)(iii) with respect to such Transfer
Date shall be paid to the Holder of the Transferor Certificate only if
the Transferor Interest on such Date of Processing is greater than the
Minimum Transferor Interest (after giving effect to the inclusion in the
Trust of all Receivables created on or prior to such Transfer Date and
the application of payments referred to in subsection 4.3(b)) and
otherwise shall be deposited into the Excess Funding Account.
(d) On the Transfer Date immediately preceding the Scheduled
Principal Allocation Commencement Date (and on each Distribution Date
thereafter during the Controlled Accumulation Period), the Trustee, acting in
accordance with instructions from the Servicer, shall pay to the
Certificateholders an amount equal to the amount on deposit in the Principal
Funding Account on the related Transfer Date.
(e) The Controlled Accumulation Period is scheduled to commence at
the close of business on the last day of the August 2003 Monthly Period;
provided, however, that, if the Accumulation Period Length (determined as
described below) is less than 12 months, the date on which the Controlled
Accumulation Period actually commences will be delayed to the first Business
Day of the month that is the number of whole months prior to the Scheduled
Principal Allocation Commencement Date at least equal to the Accumulation
Period Length and, as a result, the number of Monthly Periods in the
Controlled Accumulation Period will at least equal the Accumulation Period
Length. On the June 2003 Determination Date, and each Determination Date
thereafter until the Controlled Accumulation Period begins, the Servicer will
determine the "Accumulation Period Length" which will equal the number of
whole months such that the sum of the Accumulation Period Factors for each
month during such period will be equal to or greater than the Required
Accumulation Factor Number; provided, however, that the Accumulation Period
Length will not be determined to be less than one month.
SECTION 4.10 Investor Charge-Offs.
On or before each Transfer Date, the Servicer shall calculate the
Investor Default Amount. If on any Transfer Date, the Investor Default
Amount for the prior Monthly Period exceeds the sum of the amount allocated
with respect thereto pursuant to subsection 4.9(a)(v), with respect to such
Monthly Period, the Investor Interest (after giving effect to reductions for
any Reallocated Principal Collections on such Transfer Date) will be reduced
by the amount of such excess (such amount, an "Investor Charge-Off"), but not
by more than the lesser of the Investor Default Amount and the Investor
Interest (after giving effect to reductions for any Reallocated Principal
Collections on such Transfer Date) for such Transfer Date. In the event that
such reduction would cause the Investor Interest to be a negative number, the
Investor Interest will be reduced to zero, and no further amounts shall be
allocated to the Investor Certificate. If the Investor Interest has been
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reduced by the amount of any Investor Charge-Offs or Reallocated Principal
Collections, such reductions will be reimbursed on any Transfer Date (but not
by an amount in excess of the aggregate unreimbursed Investor Charge-Offs and
unreimbursed Reallocated Principal Collections) by the amount of Available
Investor Finance Charge Collections allocable to Series 1999-3 allocated and
available for such purpose pursuant to subsection 4.9(a)(vi).
SECTION 4.11 Reallocated Principal Collections. On or before each
Transfer Date, the Servicer shall instruct the Trustee in writing (which
writing shall be substantially in the form of Exhibit B hereto) to withdraw
from the Principal Account and apply Reallocated Principal Collections with
respect to such Transfer Date in an amount equal to the lesser of the
Available Principal Collections and the Monthly Principal Reallocation Amount
for the preceding Monthly Period, and apply such amounts on such Transfer
Date in accordance with the priority set forth in Section 4.9(a) hereof. On
each Transfer Date the Investor Interest shall be reduced by the amount of
Reallocated Principal Collections for such Transfer Date.
SECTION 4.12 Shared Principal Collections.
(a) The portion of Shared Principal Collections on deposit in the
Principal Account equal to the amount of Shared Principal Collections
allocable to Series 1999-3 on any Transfer Date shall be applied as Available
Investor Principal Collections pursuant to Section 4.9 and shall be deposited
in the Distribution Account.
(b) Shared Principal Collections allocable to Series 1999-3 with
respect to any Transfer Date shall mean an amount equal to the Series
Principal Shortfall, if any, with respect to Series 1999-3 for such Transfer
Date; provided, however, that if the aggregate amount of Shared Principal
Collections for all Series for such Transfer Date is less than the Cumulative
Series Principal Shortfall for such Transfer Date, then Shared Principal
Collections allocable to Series 1999-3 on such Transfer Date shall equal the
product of (i) Shared Principal Collections for all Series for such Transfer
Date and (ii) a fraction, the numerator of which is the Series Principal
Shortfall with respect to Series 1999-3 for such Transfer Date and the
denominator of which is the aggregate amount of the Cumulative Series
Principal Shortfall for all Series for such Transfer Date.
SECTION 4.13 Principal Funding Account.
(a) The Trustee shall establish and maintain, in the name of the
Trust, on behalf of the Trust, for the benefit of the Investor
Certificateholders, an Eligible Deposit Account (the "Principal Funding
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Investor Certificateholders. The
Trustee shall possess all right, title and interest in all funds on deposit
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from time to time in the Principal Funding Account and in all proceeds
thereof. The Principal Funding Account shall be under the sole dominion and
control of the Trustee for the benefit of the Investor Certificateholders.
If at any time the Principal Funding Account ceases to be an Eligible Deposit
Account, the Transferor shall notify the Trustee, and the Trustee upon being
notified (or the Servicer on its behalf) shall, within 10 Business Days,
establish a new Principal Funding Account which meets the conditions
specified in the definition of Eligible Deposit Account, and shall transfer
any cash or any investments to such new Principal Funding Account. The
Trustee, at the direction of the Servicer, shall (i) make withdrawals from
the Principal Funding Account from time to time, in the amounts and for the
purposes set forth in this Series Supplement, and (ii) on each Transfer Date
(from and after the commencement of the Controlled Accumulation Period) prior
to termination of the Principal Funding Account make a deposit into the
Principal Funding Account in the amount specified in, and otherwise in
accordance with, subsection 4.9(c).
(b) Funds on deposit in the Principal Funding Account shall be
invested at the direction of the Servicer by the Trustee in Permitted
Investments. Funds on deposit in the Principal Funding Account on any
Transfer Date, after giving effect to any withdrawals from the Principal
Funding Account on such Transfer Date, shall be invested in such investments
that will mature so that such funds will be available for withdrawal on or
prior to the next succeeding Transfer Date. The Trustee shall maintain for
the benefit of the Investor Certificateholders possession of the negotiable
instruments or securities, if any, evidencing such Permitted Investments. No
Permitted Investment shall be disposed of prior to its maturity.
On the Transfer Date occurring in the month following the
commencement of the Controlled Accumulation Period, and on each Transfer Date
thereafter with respect to the Controlled Accumulation Period, the Trustee,
acting at the Servicer's direction given before each Transfer Date, shall
transfer from the Principal Funding Account to the Finance Charge Account the
Principal Funding Investment Proceeds, but not in excess of the Covered
Amount, for application as Available Investor Finance Charge Collections
applied pursuant to subsection 4.9(a).
Any Excess Principal Funding Investment Proceeds shall be included
as Available Investor Finance Charge Collections for such Transfer Date. An
amount equal to any Principal Funding Investment Shortfall shall be deposited
in the Finance Charge Account on each Transfer Date from the Accumulation
Period Reserve Account to the extent funds are available pursuant to
subsection 4.14(d) and included as Available Investor Finance Charge
Collections for such Transfer Date. Principal Funding Investment Proceeds
(including reinvested interest) shall not be considered part of the amounts
on deposit in the Principal Funding Account for purposes of this Series
Supplement.
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SECTION 4.14 Accumulation Period Reserve Account.
(a) The Trustee shall establish and maintain, on behalf of the
Trust, for the benefit of the Investor Certificateholders, an Eligible
Deposit Account (the "Accumulation Period Reserve Account"), bearing a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Investor Certificateholders. The Trustee shall possess
all right, title and interest in all funds on deposit from time to time in
the Accumulation Period Reserve Account and in all proceeds thereof. The
Accumulation Period Reserve Account shall be under the sole dominion and
control of the Trustee for the benefit of the Investor Certificateholders.
If at any time the institution holding the Accumulation Period Reserve
Account ceases to be an Eligible Deposit Account, the Transferor shall notify
the Trustee, and the Trustee upon being notified (or the Servicer on its
behalf) shall, within 10 Business Days, establish a new Accumulation Period
Reserve Account meeting the conditions specified in the definition of
Eligible Deposit Account, and shall transfer any cash or any investments to
such new Accumulation Period Reserve Account. The Trustee, at the direction
of the Servicer, shall (i) make withdrawals from the Accumulation Period
Reserve Account from time to time in an amount up to the Available
Accumulation Period Reserve Account Amount at such time, for the purposes set
forth in this Series Supplement, and (ii) on each Transfer Date (from and
after the Accumulation Period Reserve Account Funding Date) prior to
termination of the Accumulation Period Reserve Account make a deposit into
the Accumulation Period Reserve Account in the amount specified in, and
otherwise in accordance with, subsection 4.9(a)(vii).
(b) Funds on deposit in the Accumulation Period Reserve Account
shall be invested at the direction of the Servicer by the Trustee in
Permitted Investments. Funds on deposit in the Accumulation Period Reserve
Account on any Transfer Date, after giving effect to any withdrawals from the
Accumulation Period Reserve Account on such Transfer Date, shall be invested
in such investments that will mature so that such funds will be available for
withdrawal on or prior to the next succeeding Transfer Date. The Trustee
shall maintain for the benefit of the Investor Certificateholders possession
of the negotiable instruments or securities, if any, evidencing such
Permitted Investments. No Permitted Investment shall be disposed of prior to
its maturity. On each Transfer Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Transfer Date on
funds on deposit in the Accumulation Period Reserve Account shall be retained
in the Accumulation Period Reserve Account (to the extent that the Available
Accumulation Period Reserve Account Amount is less than the Required
Accumulation Period Reserve Account Amount) and the balance, if any, shall be
deposited into the Finance Charge Account and included in Available Investor
Finance Charge Collections for such Transfer Date. For purposes of
determining the availability of funds or the balance in the Accumulation
Period Reserve Account for any reason under this Series Supplement, except as
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otherwise provided in the preceding sentence, investment earnings on such
funds shall be deemed not to be available or on deposit.
(c) On or before each Transfer Date with respect to the Controlled
Accumulation Period prior to the payment in full of the Investor Interest and
on or before the first Transfer Date with respect to the Rapid Amortization
Period, the Servicer shall calculate the "Accumulation Period Reserve Draw
Amount" which shall be equal to the Principal Funding Investment Shortfall
with respect to each Transfer Date with respect to the Controlled
Accumulation Period or the first Transfer Date with respect to the Rapid
Amortization Period; provided, however, that such amount will be reduced to
the extent that funds otherwise would be available for deposit in the
Accumulation Period Reserve Account under Section 4.9(vii) with respect to
such Transfer Date.
(d) In the event that for any Transfer Date the Accumulation Period
Reserve Draw Amount is greater than zero, the Accumulation Period Reserve
Draw Amount, up to the Available Accumulation Period Reserve Account Amount,
shall be withdrawn from the Accumulation Period Reserve Account on such
Transfer Date by the Trustee (acting in accordance with the instructions of
the Servicer), deposited into the Finance Charge Account and included in
Available Investor Finance Charge Collections for such Transfer Date.
(e) In the event that the Accumulation Period Reserve Account
balance on any Transfer Date, after giving effect to all deposits to and
withdrawals from the Accumulation Period Reserve Account with respect to such
Transfer Date, is greater than zero, the Trustee, acting in accordance with
the instructions of the Servicer, shall withdraw from the Accumulation Period
Reserve Account, and include as Available Investor Finance Charge Collections
for such Transfer Date, an amount equal to such Accumulation Period Reserve
Account Surplus.
(f) Upon the earliest to occur of (i) the termination of the Trust
pursuant to Article XII of the Agreement, (ii) if the Controlled Accumulation
Period has not commenced, the first Transfer Date relating to the Rapid
Amortization Period and (iii) if the Controlled Accumulation Period has
commenced, the earlier of the first Transfer Date with respect to the Rapid
Amortization Period and the Transfer Date immediately preceding the Scheduled
Principal Allocation Commencement Date, the Trustee, acting in accordance
with the instructions of the Servicer, shall withdraw from the Accumulation
Period Reserve Account and deposit all such amounts, if any, into the
Finance Charge Account to be treated as Available Investor Finance Charge
Collections and the Accumulation Period Reserve Account shall be deemed to
have terminated for purposes of this Series Supplement.
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SECTION 4.15 Transferor's or Servicer's Failure to Make a Deposit
or Payment.
If the Servicer or the Transferor fails to make, or give
instructions to make, any payment or deposit (other than as required by
subsections 2.4(d) and (e) and 12.2(a) or Sections 10.2 and 12.1) required to
be made or given by the Servicer or Transferor, respectively, at the time
specified in the Agreement (including applicable grace periods), the Trustee
shall make such payment or deposit from the applicable Investor Account
without instruction from the Servicer or Transferor. The Trustee shall be
required to make any such payment, deposit or withdrawal hereunder only to
the extent that the Trustee has sufficient information to allow it to
determine the amount thereof; provided, however, that the Trustee shall in
all cases be deemed to have sufficient information to determine the Class A
Note Interest Requirement, the Class B Note Interest Requirement, the Class C
Interest Requirement, the Net Class C Interest Requirement and the amount of
the Principal Payment on each Distribution Date. The Servicer shall, upon
request of the Trustee, promptly provide the Trustee with all information
necessary to allow the Trustee to make such payment, deposit or withdrawal.
Such funds or the proceeds of such withdrawal shall be applied by the Trustee
in the manner in which such payment or deposit should have been made by the
Transferor or the Servicer, as the case may be.
SECTION 8. Article V of the Agreement. Article V of the Agreement
shall read in its entirety as follows and shall be applicable only to the
Investor Certificateholders:
ARTICLE V
DISTRIBUTIONS AND REPORTS TO THE INVESTOR
CERTIFICATEHOLDERS
SECTION 5.1 Distributions. On each Transfer Date, the Trustee
shall distribute (in accordance with the certificates delivered on or before
the related Transfer Date by the Servicer to the Trustee pursuant to
subsection 3.4(b)) to the Investor Certificateholders of record on the
immediately preceding Record Date (other than as provided in subsection
2.4(e) or Section 12.3 respecting a final distribution)the amounts on deposit
in the Distribution Account which are payable to the Investor
Certificateholders pursuant to Section 4.9 by check mailed to the
Certificateholders (at the Certificateholders' addresses as they appear in
the Certificate Register), except that in the event the Investor Certificates
are registered in the name of the nominee of a Clearing Agency or the Owner
Trust, such distribution shall be made in immediately available funds.
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SECTION 5.2 Monthly Series 1999-3 Certificateholders' Statement.
(a) On or before each Distribution Date, the Trustee shall forward
to the Series 1999-3 Certificateholders, each Rating Agency and the Owner
Trustee a statement substantially in the form of Exhibit C to this Series
Supplement prepared by the Servicer, delivered to the Trustee and setting
forth, among other things, the following information (which, in the case of
subclauses (i) and (ii) below, shall be stated on the basis of an original
principal amount of $1,000 per Certificate and, in the case of subclauses
(viii) and (ix) shall be stated on an aggregate basis and on the basis of an
original principal amount of $1,000 per Certificate, as applicable):
(i) the amount of the current distribution allocable to the
payment of principal with respect to the Certificates
(ii) the amount of the current distribution allocable to the Class
A Note Interest Requirement, Class B Note Interest Requirement, and the
Net Class C Note Interest Requirement, respectively;
(iii) the amount of Collections of Principal Receivables processed
during the related Monthly Period and allocated in respect of the
Certificates;
(iv) the amount of Collections of Finance Charge Receivables
processed during the related Monthly Period and allocated in respect of
the Certificates;
(v) the aggregate amount of Principal Receivables, the Investor
Interest, the Adjusted Investor Interest, the Floating Investor
Percentage and the Fixed Investor Percentage as of the close of business
on the Distribution Date preceding such Transfer Date (after giving
effect to all of the transactions occurring on such date);
(vi) the aggregate outstanding balance of Accounts which were 30
to 59, 60 to 89, and 90 or more days delinquent as of the end of the day
on the Record Date;
(vii) the Aggregate Investor Default Amount for the related
Monthly Period;
(viii) the aggregate amount of Investor Charge-Offs, for the
related Monthly Period;
(ix) the aggregate amount of Investor Charge-Offs, reimbursed on
the Transfer Date immediately preceding such Distribution Date;
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(x) the amount of the Investor Servicing Fee for the related
Monthly Period;
(xi) the Portfolio Yield for the preceding Monthly Period;
(xii) the amount of Reallocated Principal Collections with respect
to such Distribution Date;
(xiii) the Accumulation Shortfall;
(xiv) the Principal Funding Investment Proceeds transferred to the
Finance Charge Account on the related Transfer Date;
(xv) the Principal Funding Investment Shortfall on the related
Transfer Date;
(xvi) the amount of Available Investor Finance Charge Collections
on deposit in the Finance Charge Account on the related Transfer Date;
and
(xvii) such other items as are set forth in Exhibit C to this
Series Supplement.
(b) Annual Certificateholders' Tax Statement. On or before January
31 of each calendar year, beginning with calendar year 2000, the Trustee
shall distribute to each Person who at any time during the preceding calendar
year was a Series 1999-3 Certificateholder, a statement prepared by the
Servicer containing the information required to be contained in the regular
monthly report to the Series 1999-3 Certificateholders, as set forth in
subclauses (i) and (ii) above, aggregated for such calendar year or the
applicable portion thereof during which such Person was a Series 1999-3
Certificateholder, together with such other customary information (consistent
with the treatment of the Certificates as debt) as the Servicer deems
necessary or desirable to enable the Series 1999-3 Certificateholders to
prepare its tax returns. Such obligations of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Internal
Revenue Code as from time to time in effect.
SECTION 9. Series 1999-3 Pay Out Events. If any one of the
following events shall occur with respect to the Investor Certificates:
(a) failure on the part of the Transferor (i) to make any payment
or deposit required by the terms of (A) the Agreement or (B) this Series
Supplement, on or before the date occurring five days after the date such
payment or deposit is required to be made herein or (ii) duly to observe or
perform in any material respect any covenants or agreements of the Transferor
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set forth in the Agreement or this Series Supplement, which failure has a
material adverse effect on the Investor Certificateholders and which
continues unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Transferor by the Trustee, or to the Transferor and the Trustee
by the Holder of the Investor Certificates and continues to affect materially
and adversely the interests of the Series 1999-3 Certificateholders;
(b) any representation or warranty made by the Transferor in the
Agreement or this Series Supplement, or any information contained in a
computer file or microfiche list required to be delivered by the Transferor
pursuant to Section 2.1 or 2.6, (i) shall prove to have been incorrect in any
material respect when made or when delivered, which continues to be incorrect
in any material respect for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Transferor by the Trustee, or to the Transferor and the
Trustee by the Holders of the Investor Certificates, and (ii) as a result of
which the interests of the Series 1999-3 Certificateholders are materially
and adversely affected and continue to be materially and adversely affected
for such period; provided, however, that a Series 1999-3 Pay Out Event
pursuant to this subsection 9(b) shall not be deemed to have occurred
hereunder if the Transferor has accepted reassignment of the related
Receivable, or all of such Receivables, if applicable, during such period in
accordance with the provisions of the Agreement;
(c) the average Portfolio Yield for any three consecutive Monthly
Periods is reduced to a rate which is less than the average of the Base Rates
for such period;
(d) the Transferor shall fail to convey Receivables arising under
Additional Accounts, or Participations, to the Trust, as required by
subsection 2.6(a);
(e) any Servicer Default shall occur which would have a material
adverse effect on the Series 1999-3 Certificateholders;
(f) the Investor Interest shall not be paid in full on the second
Distribution Date following the Scheduled Principal Allocation Commencement
Date; or
(g) the occurrence of an Event of Default under the Indenture;
then, in the case of any event described in subsection 9(a), (b) or (e)
hereof, after the applicable grace period set forth in such subsections,
either the Trustee or the Noteholders representing not less than 50% of the
outstanding principal amount of the Notes by notice then given in writing to
the Transferor and the Servicer (and to the Trustee if given by the
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Noteholders) may declare that a pay out event (a "Series 1999-3 Pay Out
Event") has occurred with respect to the Series Certificates as of the date
of such notice, and in the case of any event described in subsection 9(c),
(d), (f) or (g) hereof, a Series 1999-3 Pay Out Event shall occur without any
notice or other action on the part of the Trustee or the Noteholders
immediately upon the occurrence of such event.
SECTION 10. Series 1999-3 Termination. The right of the Investor
Certificateholders to receive payments from the Trust will terminate on the
first Business Day following the Series 1999-3 Termination Date.
SECTION 11. Counterparts. This Series Supplement may be executed
in any number of counterparts, each of which so executed shall be deemed to
be an original, but all of such counterparts shall together constitute but
one and the same instrument.
SECTION 12. (a) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK 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, AND
WITHOUT, LIMITING THE GENERALITY OF THE FOREGOING, THE IMMUNITY AND STANDARD
OF CARE OF THE TRUSTEE IN THE ADMINISTRATION OF THE TRUST HEREUNDER SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) Article 8. The Series Certificates shall be securities
governed by Article 8 of the New York Uniform Commercial Code, as amended
from time to time. The foregoing declaration shall not be amended, modified,
revoked or otherwise changed during the effectiveness of this Agreement
without the prior written consent of the Indenture Trustee.
SECTION 13. No Petition. The Transferor, the Servicer and the
Trustee, by entering into this Series Supplement and the Certificateholders,
by accepting Series 1999-3 Certificates hereby covenant and agree that they
will not at any time institute against the Trust, or join in any institution
against the Trust of, any bankruptcy proceedings under any United States
Federal or state bankruptcy or similar law in connection with any obligations
relating to the Investor Certificateholders, the Agreement or this Series
Supplement.
SECTION 14. Amendment to Agreement. By purchasing its Series
1999-3 Certificates the Investor Certificateholders shall be deemed to have
consented that The Chase Manhattan Bank shall be replaced as Servicer with
Chase Manhattan Bank USA, National Association, as a successor servicer
pursuant to an amendment of the Agreement to be executed at such time as
shall be agreed to by the parties thereto.
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SECTION 15. Tax Representation and Covenant. Any
Certificateholder shall be required to represent and covenant in connection
with such acquisition that (x) it has neither acquired, nor will it sell,
trade or transfer any interest in the Trust or cause any interest in the
Trust to be marketed on or through an "established securities market" within
the meaning of Code section 7704(b)(1), including without limitation an
interdealer quotation system that regularly disseminates firm buy or sell
quotations by identified brokers or dealers by electronic means or otherwise,
(y) unless the Transferor consents otherwise, such holder (i) is properly
classified as, and will remain classified as, a "corporation" as described in
Code section 7701(a)(3) and (ii) is not, and will not become, an S
corporation as described in Code section 1361, and (z) it will (i) cause any
participant with respect to such interest otherwise permitted hereunder to
make similar representations and covenants for the benefit of the Transferor
and the Trust and (ii) forward a copy of such representations and covenants
to the Trustee. Each such Holder shall further agree in connection with its
acquisition of such interest that, in the event of any breach of its (or its
participant's) representation and covenant that it (or its participant) is
and shall remain classified as a corporation other than an S corporation, the
Transferor shall have the right to procure a replacement investor to replace
such holder (or its participant), and further that such holder shall take all
actions necessary to permit such replacement investor to succeed to its
rights and obligations as a holder (or to the rights of its participant).
SECTION 16. Transfers of the Certificates. (a) No portion of the
Certificate or any interest therein may be sold (including in the initial
offering), conveyed, assigned, hypothecated, pledged, participated, or
otherwise transferred (each, a "Transfer") except in accordance with this
Section 16. No portions of the Certificates or any interest therein may be
Transferred to any Person (other than Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee for the Chase Credit Card
Owner Trust 1999-3 and The Bank of New York, not in its individual capacity
but solely in its capacity as indenture trustee for the Chase Credit Card
Owner Trust 1999-3) (each, an "Assignee"), unless the Assignee shall have
executed and delivered the certification referred to in subsection 16(e)
below. Any attempted Transfer that would cause the number of Targeted
Holders to exceed ninety-nine shall be void.
(b) Each Assignee shall certify to the Transferor, the Servicer,
and the Trustee that it is either (A)(i) a citizen or resident of the U.S.,
(ii) a corporation, partnership or other entity organized in or under the
laws of the U.S. or any political subdivision thereof which, if such entity
is a tax-exempt entity, recognizes that payments with respect to the
Certificate may constitute unrelated business taxable income or (iii) a
Person not described in (i) or (ii) whose ownership of any interest in the
Certificates is effectively connected with the conduct of a trade or business
within the United States (within the meaning of the Code) or (B) an estate or
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trust the income of which is includible in gross income for U.S. federal
income tax purposes. Each Assignee also shall agree that (a) if it is a
person described in clause (A)(i) or (A)(ii) above, it will furnish to the
Person from whom it is acquiring any interest in the Certificate, the
Servicer and the Trustee, a properly executed U.S. Internal Revenue Service
Form W-9 (and will agree to furnish a new Form W-9, or any successor
applicable form, upon the expiration or obsolescence of any previously
delivered form) or (b) if it is a person described in clause (A)(iii) above,
it will furnish to the person from whom it is acquiring any interest in the
Certificates, the Servicer and the Trustee, a properly executed U.S. Internal
Revenue Service Form 4224 (and will agree to furnish a new Form 4224, or any
successor applicable form, upon the expiration or obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws), and, in each case, such other certifications,
representations or opinions of counsel as may be requested by the Trustee.
(c) Each Initial Purchaser of any interest in the Certificates and
any Assignee thereof shall certify to the Transferor, the Servicer and the
Trustee that, in the case of any Assignee, it has not acquired and, in the
case of each Initial Purchaser and any Assignee, it will not sell, trade or
transfer any interest in the Certificates or cause an interest in the
Certificates to be marketed on or through an "established securities market"
within the meaning of Section 7704(b)(1) of the Code and any treasury
regulation thereunder, including, without limitation, an over-the-counter-
market or an interdealer quotation system that regularly disseminates firm
buy or sell quotations. In addition, any Assignee shall certify, prior to
any delivery or Transfer to it of any Certificates that it is not and will
not become, for so long as it holds an interest in the Certificates, a
partnership, Subchapter S corporation or grantor trust for U.S. federal
income tax purposes or, if it is such a Person, the Certificates will
represent not more than 50% of the value of all of its assets. Each Initial
Purchaser of an interest in the Certificates acknowledges that the Opinion of
Counsel to the effect that the Trust will not be treated as a publicly traded
partnership taxable as a corporation is dependent in part on the accuracy of
its certifications described in this subsection 16(c). For purposes of this
Section 16, "Initial Purchaser" shall mean the Transferor, Wilmington Trust
Company, not in its individual capacity but solely as Owner Trustee for the
Chase Credit Card Owner Trust 1999-3 and The Bank of New York not in its
individual capacity but solely in its capacity as indenture trustee for the
Chase Credit Card Owner Trust 1999-3.
(d) Each Initial Purchaser of any interest in the Certificates
shall, by its acceptance of the Certificates, be deemed to have certified and
each Assignee shall certify to the Transferor, the Servicer and the Trustee
(i) that it has purchased its interest in the Certificates for investment
only and not with a view to any public distribution thereof, (ii) that it
will not offer, sell, pledge or otherwise transfer its interest in all or any
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portion of the Certificates, except in compliance with the Securities Act and
other applicable laws and only (1) to the Transferor or (2) to a limited
number of institutional "accredited investors" (as defined in rule 501(a)(1),
(2), (3) or (7) under the Securities Act) and in a transaction exempt from
the registration requirements of the Securities Act (upon delivery of the
documentation required by the Pooling and Servicing Agreement and, if the
Trustee so requires, an opinion of counsel satisfactory to the Trustee) and
(iii) its purchase of its interest in the Certificates is not being made in
reliance on the Prospectus. Each holder by acquiring the Certificates must
represent that it is an institutional "accredited investor" (as defined in
rule 501(a)(1), (2), (3) or (7) under the Securities Act).
(e) Any request for registration of transfer of all or any portion
of the Certificates shall be made at the office of the Transfer Agent and
Registrar and shall be accompanied by letters of representations from the
prospective Certificateholders substantially in the form attached as Exhibit
D, executed by the ultimate beneficial purchaser of the Investor Interest (or
any portion thereof) in person or by such prospective Certificateholders'
attorney thereunto duly authorized in writing, and receipt by the Trustee of
the written consent of each of the Transferor and the Servicer to such
transfer, the Certificates (or such portion thereof) shall be transferred
upon the Certificate Register. Such transfers of all or any portion of the
Certificates shall be subject to the restrictions set forth in this Section
16 and to such other restrictions as shall be set forth in the letter of
representations, substantially in the form attached as Exhibit D, executed by
the purchasing Certificateholders. Successive registrations and
registrations of transfers as aforesaid may be made from time to time as
desired, and each such registration shall be noted on the Certificate
Register.
(f) The Transferor and the Servicer will facilitate any transfer
of the Certificates consistent with the requirements of this Section 16,
including assisting in the determination as to whether the number of Targeted
Holders would exceed ninety-nine.
SECTION 17. Compliance with Withholding Requirements.
Notwithstanding any other provision of the Agreement, the Trustee and any
Paying Agent shall comply with all Federal withholding requirements with
respect to payments to the Certificateholders of interest, original issue
discount, or other amounts that the Trustee, any Paying Agent, the Servicer
or the Transferor reasonably believes are applicable under the Code. The
consent of the Certificateholders shall not be required for any such
withholding. In the event the Trustee or the Paying Agent withholds any
amount from payments made to any Certificateholders pursuant to federal
withholding requirements, the Trustee or the Paying Agent shall indicate to
such Certificateholders the amount withheld and all such amounts shall be
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deemed to have been paid to such Certificateholder Holder and the
Certificateholders shall have no claim therefor.
SECTION 18. Tax Characterization of the Certificates. It is the
intention of the parties hereto that the provisions of Section 3.7 of the
Agreement shall not apply to cause the Certificates to be treated as debt for
Federal, state and local income and franchise tax purposes, but rather it is
the intention of the parties hereto that the Certificates be treated for
Federal, state and local income and franchise tax purposes as representing an
undivided beneficial interest in the assets of the Trust.
SECTION 19. ERISA Legend. Each Certificate will bear a legend or
legends substantially in the following form:
EACH PURCHASER REPRESENTS AND WARRANTS FOR THE BENEFIT OF CHASE
MANHATTAN BANK USA, NATIONAL ASSOCIATION, THAT UNLESS SUCH PURCHASER, AT ITS
EXPENSE, DELIVERS TO THE TRUSTEE, THE SERVICER AND THE TRANSFEROR AN OPINION
OF COUNSEL SATISFACTORY TO THEM TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE BY SUCH PURCHASER WILL NOT RESULT IN THE ASSETS OF THE TRUST
BEING DEEMED TO BE "ASSETS OF THE BENEFIT PLAN" OR SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") AND THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") AND WILL NOT SUBJECT THE TRUSTEE, THE TRANSFEROR OR THE SERVICER
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND
SERVICING AGREEMENT, SUCH PURCHASER IS NOT (I) AN EMPLOYEE BENEFIT PLAN (AS
DEFINED IN SECTION 3(3) ERISA) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I
OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975 (E)(1) OF THE CODE, OR (III)
AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY.
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IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee
have caused this Series 1999-3 Supplement to be duly executed by their
respective officers as of the day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
Transferor on and after June 1, 1996
By:________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
Transferor prior to June 1, 1996 and
Servicer
By:________________________________
Name:
Title:
THE BANK OF NEW YORK,
Trustee
By:________________________________
Name:
Title:
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EXHIBIT A
FORM OF CERTIFICATE
-------------------
EACH PURCHASER REPRESENTS AND WARRANTS FOR THE BENEFIT OF
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, THAT UNLESS SUCH
PURCHASER, AT ITS EXPENSE, DELIVERS TO THE TRUSTEE, THE SERVICER AND
THE TRANSFEROR AN OPINION OF COUNSEL SATISFACTORY TO THEM TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY SUCH
PURCHASER WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING DEEMED TO
BE "ASSETS OF THE BENEFIT PLAN" OR SUBJECT TO THE PROHIBITED
TRANSACTION PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA") AND THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE") AND WILL NOT SUBJECT THE TRUSTEE, THE
TRANSFEROR OR THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT, SUCH PURCHASER IS
NOT (I) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) ERISA)
THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (II) A PLAN
DESCRIBED IN SECTION 4975 (E)(1) OF THE CODE, OR (III) AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S
INVESTMENT IN THE ENTITY.
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No. 1 $965,910,000
CHASE CREDIT CARD MASTER TRUST
SERIES 1999-3 CERTIFICATE
Evidencing an Undivided Interest in a trust, the corpus of which consists of
a portfolio of MasterCard (Registered Trademark) and VISA (Registered
Trademark)<F1> credit card receivables generated or acquired by Chase
Manhattan Bank USA, National Association ("Chase USA") and other assets and
interests constituting the Trust under the Pooling and Servicing Agreement
described below.
(Not an interest in or obligation of
Chase USA
or any Affiliate thereof.)
This certifies that CHASE CREDIT CARD OWNER TRUST
1999-3 (the "Certificateholder") is the registered owner of an Undivided
Interest in a trust (the "Trust"), the corpus of which consists of a
portfolio of receivables (the "Receivables") now existing or hereafter
created and arising in connection with selected MasterCard and VISA credit
card accounts (the "Accounts") of Chase USA, all monies due or to become due
in payment of the Receivables (including all Finance Charge Receivables), the
right to certain amounts received as Interchange and Recoveries (if any), all
proceeds of the foregoing and the other assets and interests constituting the
Trust pursuant to the Second Amended and Restated Pooling and Servicing
Agreement dated as of September 1, 1996 as supplemented by the Series 1999-3
Supplement dated as of September 29, 1999 (collectively, the "Pooling and
Servicing Agreement"), by and among Chase USA, as Transferor on and after
June 1, 1996, The Chase Manhattan Bank, as Transferor prior to June 1, 1996
and as Servicer, and The Bank of New York, as Trustee (the "Trustee"). To
the extent not defined herein, capitalized terms used herein have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. This Certificate is a duly authorized Investor
Certificate entitled "Series 1999-3 Certificate" (the "Certificate"), which
represents an Undivided Interest in the Trust, including the right to receive
the Collections and other amounts allocated to the Certificates at the times
and in the amounts specified in the Pooling and Servicing Agreement and to be
-39-
<PAGE>
deposited in the Investor Accounts, the Principal Funding Account and the
Accumulation Period Reserve Account or paid to the Certificateholder.
The aggregate interest represented by the Certificate at any
time in the Principal Receivables in the Trust shall not exceed an amount
equal to the Investor Interest at such time. As of the Closing Date, the
Initial Investor Interest is $965,910,000.
The Investor Interest on any date of determination will be
an amount equal to (a) the Initial Investor Interest minus (b) the aggregate
amount of principal payments made to the Certificateholder prior to such
date, and minus (c) the excess, if any, of the aggregate amount of Investor
Charge-Offs and Reallocated Principal Collections over Investor Charge-Offs
and Reallocated Principal Collections reimbursed prior to such date of
determination; provided, however, that the Investor Interest may not be
reduced below zero.
For the purpose of allocating Collections of Finance Charge
Receivables and Receivables in Defaulted Accounts for each Monthly Period
during the Controlled Accumulation Period, the Investor Interest will be
further reduced (such reduced amount, the "Adjusted Investor Interest") by
the aggregate principal amount of funds on deposit in the Principal Funding
Account.
In addition to the Certificate, a Transferor Certificate
representing an undivided interest in the Trust will be issued to the
Transferor pursuant to the Pooling and Servicing Agreement. The Transferor
Certificate will represent the interest in the Principal Receivables not
represented by all of the Investor Certificate issued by the Trust. The
Transferor Certificate may be exchanged by the Transferor pursuant to the
Pooling and Servicing Agreement for a newly issued Series of Investor
Certificates and a reissued Transferor Certificate upon the conditions set
forth in the Pooling and Servicing Agreement.
The Trust shall pay to the Series Certificateholder an
amount equal to the sum of the Class A Note Interest Requirement, the Class B
Note Interest Requirement and the Net Class C Note Interest Requirement from
the Closing Date through November 14, 1999, and with respect to each Interest
Period thereafter, as more specifically set forth in the Pooling and
Servicing Agreement (collectively, the "Note Interest Amount"), and will be
distributed on the Business Day preceding November 15, 1999 and the 15th day
of each calendar month thereafter, or if such day is not a Business Day, on
the next succeeding Business Day (a "Distribution Date"), to the
Certificateholder of record as of the last Business Day of the calendar month
preceding such Distribution Date (the "Record Date"). During the Rapid
Amortization Period, in addition to the Note Interest Amount, principal will
be distributed to the Certificateholder on each Distribution Date to the
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<PAGE>
extent of Available Investor Principal Collections until the Certificate has
been paid in full. During the Controlled Accumulated Period, in addition to
monthly payments of the Note Interest Amounts, the amount on deposit in the
Principal Funding Account will be distributed as principal to the
Certificateholders on the Business Day preceding the September 2004
Distribution Date (the "Scheduled Principal Allocation Commencement Date"),
unless distributed earlier as a result of the occurrence of a Pay Out Event
in accordance with the Pooling and Servicing Agreement.
On or before each Transfer Date, the Servicer shall instruct
the Trustee in writing to withdraw and the Trustee, acting in accordance with
such instructions, shall withdraw on such Transfer Date, from the Finance
Charge Account to the extent of funds on deposit therein (i) Collections of
Finance Charge Receivables processed as of the end of the preceding Monthly
Period which have been allocated to the Series 1999-3 Certificate, (ii) from
other amounts constituting Available Investor Finance Charge Collections, the
following amounts: (x) an amount equal to the sum of (A) Class A Note
Interest Requirement, (B) Class B Note Interest Requirement, and (C) Net
Class C Note Interest Requirement.
On each Transfer Date, the Trustee shall apply the Available
Investor Finance Charge Collections withdrawn from the Finance Charge
Account, as required by the Pooling and Servicing Agreement, in the following
order of priority: (i) an amount equal to the Class A Note Interest
Requirement for the related Payment Date, (ii) an amount equal to the Class B
Note Interest Requirement for the related Payment Date, (iii) the amount of
any Net Investor Servicing Fee for such Transfer Date plus the amount of any
Net Investor Servicing Fee due but not paid on any prior Transfer Date, (iv)
an amount equal to the Net Class C Note Interest Requirement for the related
Payment Date, (v) an amount equal to the Investor Default Amount, if any, for
the preceding Monthly Period, (vi) an amount equal to the sum of the Investor
Charge-Offs and the amount of Reallocated Principal Collections which have
not been previously reimbursed,(vii) in accordance with the terms of the
Pooling and Servicing Agreement, an amount equal to the excess of the
Required Accumulation Period Reserve Account Amount over the Available
Accumulation Period Reserve Account Amount and (viii) the excess, if any, of
the Required Owner Trust Spread Account Amount over the amount then on
deposit in the Owner Trust Spread Account.
On or before the Transfer Date immediately succeeding the
Monthly Period in which the Controlled Accumulated Period or the Rapid
Amortization Period commences and on or before each Transfer Date thereafter,
the Servicer shall instruct the Trustee in writing to withdraw, and the
Trustee, acting in accordance with such instructions, shall withdraw on such
Transfer Date from the Principal Account an amount equal to the least of (a)
the Available Investor Principal Collections on deposit in the Principal
Account, (b) the applicable Controlled Deposit Amount and (c) the Adjusted
-41-
<PAGE>
Investor Interest prior to any deposits on such date and from such amounts,
and deposit such amount(i) during the Controlled Accumulation Period, deposit
such amount into the Principal Funding Account, and (ii) during the Rapid
Amortization Period, pay such amount to the Certificateholder.
Distributions with respect to this Series 1999-3 Certificate
will be made by the Trustee by, except as otherwise provided in the Pooling
and Servicing Agreement, wire transfer or check mailed to the address of the
Series 1999-3 Certificateholder of record appearing in the Certificate
Register and except for the final distribution in respect of this Series
1999-3 Certificate, without the presentation or surrender of this Series
1999-3 Certificate or the making of any notation thereon.
This Certificate represents an interest in only the Chase
Credit Card Master Trust. This Certificate does not represent an obligation
of, or an interest in, the Transferor or the Servicer, and neither the
Certificate nor the Accounts or Receivables are insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental agency. This
Series 1999-3 Certificate is limited in right of payment to certain
collections respecting the Receivables, all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
The Transfer of this Certificate shall be registered in the
Certificate Register upon surrender of this agency maintained by the Transfer
Agent and Registrar accompanied by a written instrument of transfer in a form
satisfactory to the Trustee and the Transfer Agent and Registrar duly
executed by the Certificateholder or such Certificateholder's attorney-in-
fact duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations and for the same aggregate Undivided Interests
will be issued to the designated transferee or transferees.
The Servicer, the Trustee and the Transfer Agent and
Registrar, and any agent of any of them, may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and
neither the Servicer, the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them or of any such agent shall be
affected by notice to the contrary except in certain circumstances described
in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the right
of the Series 1999-3 Certificateholder to receive payment from the Trust will
terminate on the first Business Day following the Series 1999-3 Termination
Date. Upon the termination of the Trust pursuant to Section 12.1 of the
Pooling and Servicing Agreement, the Trustee shall assign and convey to the
Holder of the Transferor Certificate (without recourse, representation or
warranty) all right, title and interest of the Trust in the Receivables,
whether then existing or thereafter created, and all proceeds of such
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<PAGE>
Receivables and Insurance Proceeds relating to such Receivables. The Trustee
shall execute and deliver such instruments of transfer and assignment, in
each case without recourse, as shall be prepared by the Servicer reasonably
requested by the Holder of the Transferor Certificate to vest in such Holder
all right, title and interest which the Trustee had in the Receivables.
This Series 1999-3 Certificate is a security governed by
Article 8 of the New York Uniform Commercial Code, as amended from time to
time. The foregoing declaration shall not be amended, modified, revoked or
otherwise changed during the effectiveness of the Series Supplement without
the prior written consent of the Indenture Trustee.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, Chase Manhattan Bank USA, National
Association, has caused this Certificate to be duly executed.
By:________________________________
Authorized Officer
Dated:
-43-
<PAGE>
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS
------------------------------------
AND NOTIFICATION TO THE TRUSTEE
-------------------------------
OF THE CHASE MANHATTAN BANK
---------------------------
[TO COME]
-45-
<PAGE>
EXHIBIT C
THE CHASE MANHATTAN BANK CERTIFICATEHOLDERS STATEMENT
-----------------------------------------------------
[TO COME]
-46-
<PAGE>
EXHIBIT D
[DATE]
Chase Manhattan Bank USA, National Association
802 Delaware Avenue
Wilmington, Delaware 19801
The Bank of New York
White Clay Center
101 Barclay Street
New York, New York 10286
Re: Chase Credit Card Master Trust, Series 1999-3
---------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $[ ] in
principal amount of the Chase Credit Card Master Trust, Series 1999-3
certificates(the "Certificates"), we confirm that:
1. We have received such information and documentation as we
deem necessary in order to make our investment decision. We understand that
such information and documentation speaks only as of its date and that the
information contained therein may not be correct or complete as of any time
subsequent to such date.
2. We agree to be bound by the restrictions and conditions
relating to the Certificates set forth in the Second Amended and Restated
Pooling and Servicing Agreement, dated as of September 1, 1996, as amended
and as supplemented by the Series 1999-3 Supplement dated as of September 29,
1999 (the "Series 1999-3 Supplement" and together with the Pooling and
Servicing Agreement, the "Pooling and Servicing Agreement"), each by and
among Chase USA, as Transferor on and after June 1, 1996, The Chase Manhattan
Bank, as Transferor prior to June 1, 1996 and as Servicer, and The Bank of
New York, as Trustee ("Trustee"), and agree to be bound by, and not to
reoffer, resell, pledge or otherwise transfer (any such act, a "Transfer")
the Certificates except in compliance with such restrictions and conditions
including but not limited to those in Section 16 of the Series 1999-3
Supplement.
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<PAGE>
3. We agree that the Certificates may be reoffered, resold,
pledged or otherwise transferred only in compliance with the Securities Act
of 1933, as amended (the "Securities Act") and other applicable laws and only
(i) to the Transferor or (ii) to a limited number of institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act) and in a transaction exempt from the registration
requirements of the Securities Act (upon delivery of the documentation
required by the Pooling and Servicing Agreement and, if the Trustee so
requires, an opinion of counsel satisfactory to the Trustee).
4. We have neither acquired nor will we Transfer the
Certificates we acquire (or any interest therein) or cause any part of the
certificates (or any interest therein) to be marketed on or through an
"established securities market" within the meaning of Section 7704(b)(1) of
the Internal Revenue Code of 1986, as amended (the "Code") and any treasury
regulation thereunder, including, without limitation, an over-the-counter-
market or an interdealer quotation system that regularly disseminates firm
buy or sell quotations.
5. We are not and will not become, for so long as we own any
interest in the Certificates, a partnership, Subchapter S corporation or
grantor trust for United States federal income tax purposes or, if we are
such a Person, the Certificates do not represent more than 50% of the value
of all of our assets.
6. We are a person who is either (A)(i) a citizen or resident
of the United States, (ii) a corporation or other entity organized in or
under the laws of the United States or any political subdivision thereof or
(iii) a person not described in (i) or (ii) whose ownership of the
Certificates is effectively connected with a such person's conduct of a trade
or business within the United States (within the meaning of the Code) or (B)
an estate or trust the income of which is includible in gross income for
United States federal income tax purposes. We agree that (a) if we are a
person described in clause (A)(i) or (A)(ii) above, we will furnish to the
person from whom we are acquiring an interest in the Certificates, the
Servicer and the Trustee, a properly executed U.S. Internal Revenue Service
Form W-9 and a new Form W-9, or any successor applicable form, upon the
expiration or obsolescence of any previously delivered form or (b) if we are
a person described in clause (A)(iii) above, we will furnish to the person
from whom we are acquiring an interest in the Certificates, the Servicer and
the Trustee, a properly executed U.S. Internal Revenue Service Form 4224 and
a new Form 4224, or any successor applicable form, upon the expiration or
obsolescence of any previously delivered form (and, in each case, such other
certifications, representations or opinions of counsel as may be requested by
the Trustee). We recognize that if we are a tax-exempt entity, payments with
respect to the Certificates may constitute unrelated business taxable income.
-48-
<PAGE>
7. We understand that a subsequent Transfer of the Certificates
will be void if such Transfer would cause the number of Targeted Holders (as
defined in the Series 1999-3 Supplement) to exceed ninety nine.
8. We understand that the opinion of tax counsel that the Trust
is not a publicly traded partnership taxable as a corporation is dependent in
part on the accuracy of the representations in paragraphs 4 and 5.
9. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3), or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Certificates, and we and any account for which we are acting are each able to
bear the economic risk of our or its investment.
10. We are acquiring the Certificates purchased by us for our
own account or for a single account (each of which is an institutional
"accredited investor") as to which we exercise sole investment discretion.
11. We are not (a) an "employee benefit plan" (as defined in
Section 3(3) of ERISA), including governmental plans and church plans, (b) a
plan described in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (the "Code") including individual retirement accounts and Keogh
plans, or (c) any other entity whose underlying assets include "plan assets"
(as defined in United States Department of Labor ("DOL") Regulation Section
2510.3-101, 29 C.F.R. Section 2510.3-101 or otherwise under ERISA) by reason
of a plan's investment in the entity, including, without limitation, an
insurance company general account
12. We understand that any purported Transfer of any portion of
the Certificates in contravention of the restrictions and conditions in
paragraphs 1 through 11 above (including any violation of the representation
in paragraph 5 by an investor who continues to hold an interest in the
Certificates occurring any time after the Transfer in which it acquired such
Certificates) shall be null and void and the purported transferee shall not
be recognized by the Trust or any other person as a Certificate Holder for
any purpose.
13. We further understand that, on any proposed resale, pledge
or transfer of the Certificates, we will be required to furnish to the
Trustee and the Registrar, such certifications and other information as the
Trustee or the Registrar may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions and with the restrictions and
conditions of the Certificates and the Pooling and Servicing Agreement
pursuant to which the Certificates were issued and we agree that if we
determine to Transfer the Certificates, we will cause our proposed transferee
to provide the Transferor, the Servicer and the Trustee with a letter
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<PAGE>
substantially in the form of this letter. We further understand that the
Certificates purchased by us will bear a legend to the foregoing effect.
14. The person signing this letter on behalf of the ultimate
beneficial purchaser of the Certificates has been duly authorized by such
beneficial purchaser of the Certificates to do so.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
Very truly yours,
[full legal name of purchaser]
By:____________________________
Name:
Title:
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<PAGE>
Form of Trustee's Certificate of Authentication
-----------------------------------------------
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is the Certificate of Chase Credit Card Master Trust,
Series 1999-3, referred to in the within-mentioned Pooling and Servicing
Agreement.
THE BANK OF NEW YORK,
Trustee
By:________________________________
Authorized Signatory
Dated:
-51-
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. Designation . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 3. Servicing Compensation and Assignment of Interchange . 13
SECTION 4. Reassignment and Transfer Terms . . . . . . . . . . . . 14
SECTION 5. Delivery and Payment for the Investor Certificates . . 14
SECTION 6. Form of Delivery of Investor Certificates . . . . . . . 14
SECTION 7. Article IV of Agreement . . . . . . . . . . . . . . . . 14
SECTION 4.4 Rights of the Certificateholders . . . . . . . . . . . 15
SECTION 4.5 Allocations . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.6 Determination of Required Monthly Interest Payment . . 18
SECTION 4.7 Determination of Monthly Principal . . . . . . . . . . 18
SECTION 4.8 Coverage of Required Amount . . . . . . . . . . . . . . 18
SECTION 4.9 Monthly Payments . . . . . . . . . . . . . . . . . . . 19
SECTION 4.10 Investor Charge-Offs . . . . . . . . . . . . . . . . . 22
SECTION 4.11 Reallocated Principal Collections . . . . . . . . . . . 23
SECTION 4.12 Shared Principal Collections . . . . . . . . . . . . . 23
SECTION 4.13 Principal Funding Account . . . . . . . . . . . . . . . 23
SECTION 4.14 Accumulation Period Reserve Account . . . . . . . . . . 25
SECTION 4.15 Transferor's or Servicer's Failure to Make a Deposit or
Payment . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 8. Article V of the Agreement . . . . . . . . . . . . . . 27
SECTION 5.1 Distributions . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.2 Monthly Series 1999-3 Certificateholders' Statement . . 28
SECTION 9. Series 1999-3 Pay Out Events . . . . . . . . . . . . . 29
SECTION 10. Series 1999-3 Termination . . . . . . . . . . . . . . . 31
SECTION 11. Counterparts . . . . . . . . . . . . . . . . . . . . . 31
SECTION 12. (a) Governing Law . . . . . . . . . . . . . . . . . . . 31
SECTION 13. No Petition . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 14. Amendment to Agreement . . . . . . . . . . . . . . . . 31
-52-
<PAGE>
SECTION 17. Compliance with Withholding Requirements . . . . . . . 34
SECTION 18. Tax Characterization of the Certificates . . . . . . . 35
SECTION 19. ERISA Legend. . . . . . . . . . . . . . . . . . . . . . 35
EXHIBITS
EXHIBIT A Form of Certificate
EXHIBIT B Form of Monthly Payment Instructions
and Notification to the Trustee
EXHIBIT C Form of Monthly Series 1999-3
Certificateholder's Statement
EXHIBIT D Form of Transferee Representation Letter
SCHEDULE I Schedule to Exhibit C of the Pooling and Servicing Agreement
with respect to the Investor Certificate
-53-
<PAGE>
ENDNOTES
--------
<F1> MasterCard (Registered Trademark) and VISA (Registered Trademark) are
federally registered servicemarks of MasterCard International Inc.
and of Visa U.S.A., Inc., respectively.
-54-
Exhibit 4.9
- ----------------------------------------------------------------------------
CHASE CREDIT CARD OWNER TRUST 1999-3
Class A 6.66% Asset Backed Notes
Class B 6.95% Asset Backed Notes
Class C Floating Rate Asset Backed Notes
---------------------
INDENTURE
Dated as of September 29, 1999
---------------------
THE BANK OF NEW YORK
as Indenture Trustee and Securities Intermediary
- ----------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.2. Incorporation by Reference of Trust Indenture Act . . . . 27
SECTION 1.3. Usage of Terms . . . . . . . . . . . . . . . . . . . . . 28
SECTION 1.4. Calculations of Interest . . . . . . . . . . . . . . . . 28
ARTICLE II
THE NOTES
SECTION 2.1. Form . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.2. Execution, Authentication and Delivery . . . . . . . . . 29
SECTION 2.3. Temporary Notes . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.4. Registration of Transfer and Exchange . . . . . . . . . . 30
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . 33
SECTION 2.6. Persons Deemed Owner . . . . . . . . . . . . . . . . . . 34
SECTION 2.7. Payment of Principal and Interest . . . . . . . . . . . . 34
SECTION 2.8. Cancellation . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.9. Release of Collateral . . . . . . . . . . . . . . . . . . 38
SECTION 2.10. Book-Entry Notes . . . . . . . . . . . . . . . . . . . . 38
SECTION 2.11. Notices to Clearing Agency . . . . . . . . . . . . . . . 39
SECTION 2.12. Definitive Notes . . . . . . . . . . . . . . . . . . . . 39
SECTION 2.13. Authenticating Agent . . . . . . . . . . . . . . . . . . 40
SECTION 2.14. Appointment of Paying Agent . . . . . . . . . . . . . . . 42
SECTION 2.15. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest . . . . . . . . . . . . 44
SECTION 3.2. Maintenance of Office or Agency . . . . . . . . . . . . . 44
SECTION 3.3. Money for Payments To Be Held in Trust . . . . . . . . . 45
SECTION 3.4. Existence . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 3.5. Protection of Owner Trust Estate . . . . . . . . . . . . 46
SECTION 3.6. Opinions as to Owner Trust Estate . . . . . . . . . . . . 47
SECTION 3.7. Performance of Obligations; Servicing of Series Certificate 48
SECTION 3.8. Negative Covenants . . . . . . . . . . . . . . . . . . . 49
SECTION 3.9. Annual Statement as to Compliance . . . . . . . . . . . . 50
SECTION 3.10. The Issuer May Consolidate, Etc. Only on Certain Terms . 50
-2-
<PAGE>
SECTION 3.11. Successor or Transferee . . . . . . . . . . . . . . . . . 52
SECTION 3.12. No Other Business . . . . . . . . . . . . . . . . . . . . 52
SECTION 3.13. No Borrowing . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 3.14. Administrator's Obligations . . . . . . . . . . . . . . . 53
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities . . . . 53
SECTION 3.16. Capital Expenditures . . . . . . . . . . . . . . . . . . 53
SECTION 3.17. Restricted Payments . . . . . . . . . . . . . . . . . . . 53
SECTION 3.18. Notice of Events of Default . . . . . . . . . . . . . . . 54
SECTION 3.19. Further Instruments and Acts . . . . . . . . . . . . . . 54
SECTION 3.20. Removal of Administrator . . . . . . . . . . . . . . . . 54
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture . . . . . . . . . 54
SECTION 4.2. Application of Trust Money . . . . . . . . . . . . . . . 56
SECTION 4.3. Repayment of Moneys Held by Paying Agent . . . . . . . . 56
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . . . . . . . . . . . . 56
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment . . . 57
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by the
Indenture Trustee . . . . . . . . . . . . . . . . . . 57
SECTION 5.4. Remedies; Priorities . . . . . . . . . . . . . . . . . . 60
SECTION 5.5. Optional Preservation of the Owner Trust Estate . . . . . 62
SECTION 5.6. Limitation of Suits . . . . . . . . . . . . . . . . . . . 62
SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal and
Interest . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.8. Restoration of Rights and Remedies . . . . . . . . . . . 63
SECTION 5.9. Rights and Remedies Cumulative . . . . . . . . . . . . . 64
SECTION 5.10. Delay or Omission Not a Waiver . . . . . . . . . . . . . 64
SECTION 5.11. Control by Noteholders . . . . . . . . . . . . . . . . . 64
SECTION 5.12. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 65
SECTION 5.13. Undertaking for Costs . . . . . . . . . . . . . . . . . . 65
SECTION 5.14. Waiver of Stay or Extension Laws . . . . . . . . . . . . 66
SECTION 5.15. Action on Notes . . . . . . . . . . . . . . . . . . . . . 66
-3-
<PAGE>
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of the Indenture Trustee . . . . . . . . . . . . . 67
SECTION 6.2. Rights of the Indenture Trustee . . . . . . . . . . . . . 69
SECTION 6.3. Individual Rights of the Indenture Trustee . . . . . . . 71
SECTION 6.4. The Indenture Trustee's Disclaimer . . . . . . . . . . . 71
SECTION 6.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . 72
SECTION 6.6. Reports by the Indenture Trustee to Holders . . . . . . . 72
SECTION 6.7. Compensation and Indemnity . . . . . . . . . . . . . . . 72
SECTION 6.8. Replacement of the Indenture Trustee . . . . . . . . . . 73
SECTION 6.9. Successor Indenture Trustee by Merger . . . . . . . . . . 74
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 6.11. Eligibility; Disqualification . . . . . . . . . . . . . . 76
SECTION 6.12. Preferential Collection of Claims Against the Issuer . . 77
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. The Issuer To Furnish the Indenture Trustee Names and
Addresses of the Noteholders . . . . . . . . . . . . . 77
SECTION 7.2. Preservation of Information; Communications to the
Noteholders . . . . . . . . . . . . . . . . . . . . . 77
SECTION 7.3. Reports by the Administrator . . . . . . . . . . . . . . 78
SECTION 7.4. Reports by the Issuer . . . . . . . . . . . . . . . . . . 79
SECTION 7.5. Reports by the Indenture Trustee . . . . . . . . . . . . 79
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Money . . . . . . . . . . . . . . . . . . . 80
SECTION 8.2. Owner Trust Accounts . . . . . . . . . . . . . . . . . . 80
SECTION 8.3. Owner Trust Spread Account Amount Increase . . . . . . . 82
SECTION 8.4. General Provisions Regarding Accounts . . . . . . . . . . 82
SECTION 8.5. Release of Owner Trust Estate . . . . . . . . . . . . . . 83
SECTION 8.6. Opinion of Counsel . . . . . . . . . . . . . . . . . . . 84
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders . 85
SECTION 9.2. Supplemental Indentures with Consent of the Noteholders . 86
SECTION 9.3. Effect of Supplemental Indenture . . . . . . . . . . . . 88
SECTION 9.4. Conformity with Trust Indenture Act . . . . . . . . . . . 88
SECTION 9.5. Reference in Notes to Supplemental Indentures . . . . . . 88
SECTION 9.6. Execution of Supplemental Indentures . . . . . . . . . . 89
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 10.2. Form of Redemption Notice . . . . . . . . . . . . . . . . 89
SECTION 10.3. Notes Payable on Redemption Date . . . . . . . . . . . . 90
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc. . . . . . . . 90
SECTION 11.2. Form of Documents Delivered to the Indenture Trustee . . 92
SECTION 11.3. Actions of Noteholders . . . . . . . . . . . . . . . . . 93
SECTION 11.4. Notices, etc., to the Indenture Trustee, the Issuer, and
Note Rating Agencies . . . . . . . . . . . . . . . . . 94
SECTION 11.5. Notices to Noteholders; Waiver . . . . . . . . . . . . . 95
SECTION 11.6. Alternate Payment and Notice Provisions . . . . . . . . . 96
SECTION 11.7. Conflict with Trust Indenture Act . . . . . . . . . . . . 96
SECTION 11.8. Effect of Headings and Table of Contents . . . . . . . . 96
SECTION 11.9. Successors and Assigns . . . . . . . . . . . . . . . . . 96
SECTION 11.10. Separability . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 11.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . 96
SECTION 11.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 97
SECTION 11.13. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 11.14. Counterparts . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 11.15. Recording of Indenture . . . . . . . . . . . . . . . . . 97
SECTION 11.16. Trust Obligation . . . . . . . . . . . . . . . . . . . . 97
SECTION 11.17. No Petition . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 11.18. Inspection . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 11.19. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . 99
Exhibit A - Form of Class A Note
Exhibit B - Form of Class B Note
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Exhibit C - Form of Class C Note
Exhibit D - Form of Note Depository Agreement
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CROSS REFERENCE TABLE<F1>
---------------------
TIA Section Indenture Section
- ----------- -----------------
310 (a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10
(a)(4) N.A.<F2>
(a)(5) 6.11
(b) 6.8; 6.11
(c) N.A.
311 (a) 6.12
(b) 6.12
(c) N.A.
312 (a) 7.1; 7.2
(b) 7.2
(c) 7.2
313 (a) 7.4
(b)(1) 7.4
(b)(2) 7.4
(c) 7.4
(d) 7.3
314 (a) 7.3
(b) 3.6
(c)(1) 11.1
(c)(2) 11.1
11.1
11.1
(f) N.A.
315 (a) 6.1
(b) 6.5; 11.5
(c) 6.1
(d) 6.1
(e) 5.13
316 (a) (last sentence) 1.1
(a)(1)(A) 5.11
(a)(1)(B) 5.12
(a)(2) N.A.
(b) 5.7
(c) N.A.
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TIA Section Indenture Section
- ----------- -----------------
317 (a)(1) 5.3
(a)(2) 5.3
(b) 3.3
318 (a) 11.7
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<PAGE>
INDENTURE dated as of September 29, 1999, between WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as Owner Trustee for
the Chase Credit Card Owner Trust 1999-3, a Delaware common law trust (the
"Issuer"), and THE BANK OF NEW YORK, a New York banking corporation, as
indenture trustee (the "Indenture Trustee") and as securities intermediary
and not in its individual capacity.
Each party agrees as follows for the benefit of the other
party and for the benefit of the Holders of the Issuer's Class A 6.66% Asset
Backed Notes (the "Class A Notes"), Class B 6.95% Asset Backed Notes (the
"Class B Notes") and Class C Floating Rate Asset Backed Notes (the "Class C
Notes", together with the Class A Notes and the Class B Notes, the "Notes"):
GRANTING CLAUSE
---------------
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes, all right, title and interest of the Issuer in, to and under the
following property whether now owned or hereafter acquired, now existing or
hereafter created and wherever located: all accounts, money, chattel paper,
investment property, instruments, documents, deposit accounts, certificates
of deposit, letters of credit, advices of credit, general intangibles and
goods consisting of, arising from or relating to (a) the Series Certificate,
(b) all money, instruments, investment property and other property (together
with all earnings, dividends, distributions, income, issues, and profits
relating to), distributed or distributable in respect of the Series
Certificate pursuant to the terms of the Series Supplement, the Pooling and
Servicing Agreement or the Deposit and Administration Agreement; (c) all
money, investment property, instruments and other property on deposit from
time to time in, credited to or related to the Note Distribution Account and
the Owner Trust Spread Account, and in all interest, dividends, earnings,
income and other distributions from time to time received, receivable or
otherwise distributed to or in respect thereto (including any accrued
discount realized on liquidation of any investment purchased at a discount);
provided that the Grant in respect of the Owner Trust Spread Account is for
the exclusive benefit of the Class C Noteholders; (d) all rights, remedies,
powers, privileges and claims of the Issuer under or with respect to the
Series Certificate and the Deposit and Administration Agreement (whether
arising pursuant to the terms of the Deposit and Administration Agreement or
otherwise available to the Issuer at law or in equity), including, without
limitation, the rights of the Issuer to enforce the Pooling and Servicing
Agreement, the Series Supplement and the Deposit and Administration
Agreement, and to give or withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or with respect to the
Pooling and Servicing Agreement, the Series Supplement or the Deposit and
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Administration Agreement to the same extent as the Issuer could but for the
assignment and security interest granted to the Indenture Trustee for the
benefit of the Noteholders; (e) all other property of the Issuer; and (f) all
present and future claims, demands, causes and choses in action in respect of
any or all of the foregoing and all payments on or under and all proceeds of
every kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds, products, rents, receipts or profits of the
conversion, voluntary or involuntary, into cash or other property, all cash
and non-cash proceeds, and other property consisting of, arising from or
relating to all or any part of any of the foregoing or any proceeds thereof
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment
of principal of and interest on, and any other amounts owing in respect of,
the Notes, equally and ratably without prejudice, priority or distinction
except as set forth herein, and to secure compliance with the provisions of
this Indenture, all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Holders
of the Notes, acknowledges such Grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and agrees to
perform its duties required in this Indenture to the end that the interests
of the Holders of the Notes and (only to the extent expressly provided
herein) the Certificateholder may be adequately and effectively protected.
On the date of issuance of the Series Certificate, the
Issuer shall cause the Series Certificate with an undated bond power covering
such Series Certificate, duly executed by the Issuer, and endorsed in blank,
to be delivered to the Indenture Trustee, and the Indenture Trustee shall
maintain possession of the Series Certificate for the benefit of the Holders
of the Notes, subject to the terms of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions. The following terms which are
defined in the Uniform Commercial Code in the State of New York shall have
the meanings set forth therein: "certificated security," "control,"
"financial asset," entitlement order," "investment property," "securities
account," "securities intermediary," and "security entitlement." Whenever
used in this Indenture, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
"Act" has the meaning specified in Section 11.3.
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<PAGE>
"Administrator" means Chase Manhattan Bank USA, National
Association, as administrator pursuant to the Deposit and Administration
Agreement, and its successors and assigns.
"Affiliate" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. A
Person shall not be deemed to be an Affiliate of any specified Person solely
because such other Person has the contractual right or obligation to manage
such specified Person unless such other Person controls such specified Person
through equity ownership or otherwise.
"Authenticating Agent" has the meaning specified in Section
2.13 and shall initially be the corporate trust office of Chase, and its
successors and assigns in such capacity.
"Authorized Officer" means any officer of the Owner Trustee,
Administrator or Servicer who is authorized to act on behalf of the Owner
Trustee, Administrator or Servicer, as applicable, and who is identified as
such on the list of authorized officers delivered by each such party on the
Closing Date as such list may be modified by notice to the other parties.
"Available Amount" means, with respect to each Transfer
Date, an amount equal to the amount to be paid in respect of the Series
Certificate pursuant to Section 4.9 of the Pooling and Servicing Agreement on
such date.
"Basic Documents" means this Indenture, the Deposit and
Administration Agreement, the Trust Agreement, the Pooling and Servicing
Agreement and the Series Supplement and other documents and certificates
delivered in connection therewith.
"Book-Entry Notes" means beneficial interests in the Notes,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency or Foreign Clearing Agency as described in Section 2.10.
"Business Day" means a day, other than a Saturday or a
Sunday, on which the Indenture Trustee and banks located in New York, New
York, and Wilmington, Delaware are open for the purpose of conducting a
commercial banking business.
"Cedel means Cedelbank, societe anonyme, and its successors.
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<PAGE>
"Certificate" means the certificate evidencing the
beneficial interest in Chase Credit Card Owner Trust 1999-3, substantially in
the form attached to the Trust Agreement as Exhibit A.
"Certificateholder" means Chase USA.
"Certificate Reassignment Date" has the meaning specified in
the Series Supplement.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"Chase USA" means Chase Manhattan Bank USA, National
Association.
"Class A Monthly Note Interest" means, with respect to any
Payment Date, an amount equal to one-twelfth of the product of (a) the Class
A Note Interest Rate and (b) the Class A Note Principal Balance on the
related Record Date; provided, however, that with respect to the November
1999 Payment Date, Class A Monthly Note Interest will be an amount equal to
the product of (a) the Class A Note Interest Rate, (b) a fraction the
numerator of which is 46 and the denominator of which is 360 and (c) the
Class A Note Initial Principal Balance.
"Class A Noteholder" means a Holder of a Class A Note.
"Class A Noteholders' Principal Distributable Amount"
means, with respect to any Payment Date on and after the earlier to occur of
(a) the Class A Scheduled Payment Date and (b) any Note Principal Due Date,
the Class A Note Principal Balance on such Payment Date.
"Class A Note Initial Principal Balance" means $850,000,000.
"Class A Note Interest Rate" means a per annum rate equal to
6.66%.
"Class A Note Interest Requirement" means, with respect to
any Payment Date, the sum of (a) the Class A Monthly Note Interest for such
Payment Date and (b) the amount of any unpaid Class A Note Interest
Shortfall.
"Class A Note Interest Shortfall" means, with respect to any
Payment Date, the sum of (a) the excess, if any, of (i) the Class A Note
Interest Requirement for the preceding Payment Date, over (ii) the amount in
respect of interest that was actually paid pursuant to subsection 2.4(d) with
respect to interest on the Class A Notes for such preceding Payment Date,
plus (b) interest on the amount of interest due but not paid to the Class A
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<PAGE>
Noteholders on the preceding Payment Date, to the extent permitted by law, at
the Class A Note Interest Rate from and including such preceding Payment Date
to but excluding the current Payment Date.
"Class A Note Principal Balance" means, with respect to any
date, an amount equal to the excess of (a) the Class A Note Initial Principal
Balance over (b) the aggregate amount of any principal payments made to the
Class A Noteholders pursuant to subsection 2.7(d) prior to such date.
"Class A Notes" means each of the $850,000,000 Class A 6.66%
Asset Backed Notes, Series 1999-3.
"Class A Scheduled Payment Date" means the September 2004
Payment Date.
"Class B Monthly Note Interest" means, with respect to any
Payment Date, an amount equal to one-twelfth of the product of (a) the Class
B Note Interest Rate and (b) the Class B Note Principal Balance on the
related Record Date; provided, however, that with respect to the November
1999 Payment Date, Class B Monthly Note Interest will be an amount equal to
the product of (a) the Class B Note Interest Rate, (b) a fraction the
numerator of which is 46 and the denominator of which is 360 and (c) the
Class B Note Initial Principal Balance.
"Class B Noteholder" means a Holder of a Class B Note.
"Class B Noteholders' Principal Distributable Amount"
means, with respect to any Payment Date on and after the earlier to occur of
(a) the Class B Scheduled Payment Date and (b) any Note Principal Due Date,
the Class B Note Principal Balance on such Payment Date.
"Class B Note Initial Principal Balance" means $48,295,000.
"Class B Note Interest Rate" means a per annum rate equal to
6.95%.
"Class B Note Interest Requirement" means, with respect to
any Payment Date, the sum of (a) the Class B Monthly Note Interest for such
Payment Date and (b) the amount of any unpaid Class B Note Interest
Shortfall.
"Class B Note Interest Shortfall" means, with respect to any
Payment Date, the sum of (a) the excess, if any, of (i) the Class B Note
Interest Requirement for the preceding Payment Date, over (ii) the amount in
respect of interest that was actually paid pursuant to subsection 2.7(e) with
respect to interest on the Class B Notes for such preceding Payment Date,
plus (b) interest on the amount of interest due but not paid to the Class B
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<PAGE>
Noteholders on the preceding Payment Date, to the extent permitted by law, at
the Class B Note Interest Rate from and including such preceding Payment Date
to but excluding the current Payment Date.
"Class B Note Principal Balance" means, with respect to any
date, an amount equal to the excess of (a) the Class B Note Initial Principal
Balance over (b) the aggregate amount of any principal payments made to the
Class B Noteholders pursuant to subsection 2.7(e) prior to such date.
"Class B Notes" means each of the $48,295,000 Class B 6.95%
Asset Backed Notes, Series 1999-3.
"Class B Scheduled Payment Date" means the October 2004
Payment Date.
"Class C Monthly Note Interest" means, with respect to any
Payment Date, an amount equal to the product of (a) the Class C Note Interest
Rate for the related Note Interest Period, (b) a fraction, the numerator of
which is the actual number of days in such Note Interest Period and the
denominator of which is 360 and (c) the Class C Note Principal Balance on the
related Record Date; provided, however, that with respect to the November
1999 Payment Date, Class C Monthly Note Interest will be an amount equal to
the sum of (i) the product of (a) the Class C Note Interest Rate determined
on September 27, 1999, (b) a fraction the numerator of which is 16 and the
denominator of which is 360 and (c) the Class C Note Initial Principal
Balance and (ii) the product of (a) the Class C Note Interest Rate determined
on October 13, 1999, (b) a fraction the numerator of which is 31 and the
denominator of which is 360 and (c) the Class C Note Initial Principal
Balance.
"Class C Noteholder" means a Holder of a Class C Note.
"Class C Noteholders' Principal Distributable Amount"
means, with respect to any Payment Date on and after the earlier to occur of
(a) the Class C Scheduled Payment Date and (b) any Note Principal Due Date,
the Class C Note Principal Balance on such Payment Date.
"Class C Note Initial Principal Balance" means $67,615,000.
"Class C Note Interest Rate" means from the Closing Date
through October 14, 1999, from October 15, 1999 through November 14, 1999 and
with respect to each Note Interest Period thereafter, a per annum rate equal
to 0.95% per annum in excess of LIBOR, as determined on the related LIBOR
Determination.
"Class C Note Interest Requirement" means, with respect to
any Payment Date, the sum of (a) the Class C Monthly Note Interest for such
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<PAGE>
Payment Date and (b) the amount of any unpaid Class C Note Interest
Shortfall.
"Class C Note Interest Shortfall" means, with respect to any
Payment Date, the sum of (a) the excess, if any, of (i) the Class C Note
Interest Requirement for the preceding Payment Date, over (ii) the amount in
respect of interest that was actually paid pursuant to subsection 2.7(f) with
respect to interest on the Class C Notes for such preceding Payment Date,
plus (b) interest on the amount of interest due but not paid to the Class C
Noteholders on the preceding Payment Date, to the extent permitted by law, at
the Class C Note Interest Rate from and including such preceding Payment Date
to but excluding the current Payment Date.
"Class C Note Principal Balance" means, with respect to any
date, an amount equal to the excess of (a) the Class C Note Initial Principal
Balance over (b) the aggregate amount of any principal payments made to the
Class C Noteholders pursuant to subsection 2.7(f) prior to such date.
"Class C Notes" means each of the $67,615,000 Class C
Floating Rate Asset Backed Notes, Series 1999-3.
"Class C Scheduled Payment Date" means the October 2004
Payment Date.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act; the initial
Clearing Agency shall be The Depository Trust Company.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other person for whom from time to time a
Clearing Agency effects book-entry transfers of securities deposited with the
Clearing Agency (including a Foreign Clearing Agency).
"Closing Date" means September 29, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning assigned to such term in the
Granting Clause hereof.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office" means the principal corporate trust
office of the Indenture Trustee, which as of the date hereof, is located at
101 Barclay Street, Fl. 12 East, New York, New York 10286, Attn: Corporate
Trust Administration or the corporate trust office of the Owner Trustee, as
applicable.
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<PAGE>
"Default" means any occurrence that is, or with notice or
the lapse of time or both would become, an Event of Default.
"Definitive Notes" means Notes issued in certificated, fully
registered form as provided in Section 2.12.
"Deposit and Administration Agreement" means the deposit and
administration agreement dated as of September 29, 1999 between the Depositor
and Administrator and Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee for the Chase Credit Card Owner Trust
1999-3.
"Depositor" means Chase USA in its capacity as Depositor
under the Trust Agreement.
"Distribution Date" has the meaning specified in the Series
Supplement.
"DTC" means The Depository Trust Company.
"Eligible Deposit Account" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with
the corporate trust department of a depository institution organized under
the laws of the United States or any one of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank), and acting
as a trustee for funds deposited in such accounts, so long as any of the
Securities of such depository institution shall have a credit rating from
each Note Rating Agency in one of its generic credit rating categories which
signifies investment grade.
"Eligible Institution" means (a) the Administrator, (b) a
depository institution (which may be the Owner Trust Trustee, the Indenture
Trustee or the Master Trust Trustee or an Affiliate) organized under the laws
of the United States or any one of the states thereof which at all times
(i) has a certificate of deposit rating of "P-1" by Moody's, (ii) has either
(x) a long-term unsecured debt rating of "AAA" by Standard & Poor's or (y) a
certificate of deposit rating of "A-1+" by Standard & Poor's and (iii) is a
member of the FDIC or (c) any other institution that is acceptable to the
Rating Agencies.
"Euroclear Operator" means Morgan Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear System.
"Event of Default" means an event specified in Section 5.1.
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<PAGE>
"Excess Spread Percentage" shall mean, with respect to any
Monthly Period, the amount, if any, by which (i) the Portfolio Yield exceeds
(ii) the Base Rate.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation
or bank, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice President,
the Secretary or the Treasurer of such corporation or bank, and with respect
to any partnership, any general partner thereof.
"FDIC" means the Federal Deposit Insurance Corporation or
any successor thereto.
"Fitch" means Fitch IBCA, Inc. and its successors and
assigns.
"Foreign Clearing Agency" means, collectively, Cedel and the
Euroclear Operator.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and grant a lien
upon and a security interest in and right of set-off against, deposit, set
over and confirm pursuant to this Indenture. A Grant of the Trust Estate or
of any other agreement or instrument shall include all rights, powers and
options (but none of the obligations) of the Granting party thereunder,
including the immediate and continuing right to claim for, collect, receive
and give receipt for principal and interest payments and all other moneys
payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the Granting party or otherwise and
generally to do and receive anything that the Granting party is or may be
entitled to do or receive thereunder or with respect thereto.
"Holder" or "Holders" means, unless the context otherwise
requires, both the Certificateholder and Noteholders.
"Indenture Trustee" means The Bank of New York.
"Independent" means, when used with respect to any specified
Person, that the person (a) is in fact independent of the Issuer, any other
obligor upon the Notes, the Depositor and any Affiliate of any of the
foregoing persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
the Depositor or any Affiliate of any of the foregoing Persons and (c) is not
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connected with the Issuer, any such other obligor, the Depositor or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar
functions.
"Independent Certificate" means a certificate or opinion to
be delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1,
made by an Independent engineer, appraiser or other expert appointed by the
Issuer and approved by the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read
the definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Insolvency Event" means, for a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver (including any receiver appointed under the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended), liquidator,
assignee, custodian, trustee, sequestrator or similar official for such
Person or for any substantial part of its property, or ordering the winding-
up or liquidation of such Person's affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or (b) the
commencement by such Person of a voluntary case under any applicable Federal
or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by such Person to the entry of an order for relief in
an involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for
any substantial part of its property, or the making of such Person of any
general assignment for the benefit of creditors, or the failure by such
Person generally to pay its debts as such debts become due, or the taking of
action by such Person in furtherance of any of the foregoing.
"Investment Earnings" means, with respect to any Payment
Date, the investment earnings (net of losses and investment expenses) on
amounts on deposit in the Owner Trust Spread Account.
"Issuer" means Chase Credit Card Owner Trust 1999-3, a
Delaware common law trust created under the Trust Agreement acting by and
through Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee.
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"Issuer Order" and "Issuer Request" means a written order or
request signed in the name of the Issuer by any of its Authorized Officers
and delivered to the Indenture Trustee.
"LIBOR" means, for any Note Interest Period, the London
interbank offered rate for United States dollar deposits determined by the
Indenture Trustee for each Note Interest Period in accordance with the
provisions of Section 2.16.
"LIBOR Determination Date" shall mean (a) September 27, 1999
for the period from the Closing Date through October 14, 1999, (b) October
13, 1999 for the period from October 15, 1999 through November 14, 1999, and
(c) the second London Business Day prior to the commencement of the second
and each subsequent Note Interest Period.
"Lien" means a security interest, lien, charge, pledge or
encumbrance of any kind other than tax liens, mechanics' liens or any other
liens that attach by operation of law.
"London Business Day" means any Business Day on which
dealings in deposits in United States dollars are transacted in the London
interbank market.
"Master Trust" means the Chase Credit Card Master Trust
created pursuant to the Pooling and Servicing Agreement.
"Master Trust Servicer Default" means a Servicer Default as
defined in the Pooling and Servicing Agreement.
"Master Trust Termination Date" means the Series 1999-3
Termination Date, as defined in the Supplement.
"Master Trust Trustee" means The Bank of New York, as
trustee under the Pooling and Servicing Agreement and each successor to The
Bank of New York in the same capacity.
"Monthly Period" has the meaning specified in the
Supplement.
"Moody's" means Moody's Investors Service, Inc., and its
successors and assigns.
"Net Class C Note Interest Requirement" means, with respect
to any Payment Date, an amount equal to the Class C Note Interest Requirement
minus the amount of investment earnings on amounts on deposit in the Owner
Trust Spread Account pursuant to Section 8.2 which are available on such
Transfer Date to be applied pursuant to subsection 2.7(b).
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"Note" means a Class A Note, a Class B Note, or a Class C
Note.
"Note Depository Agreement" means the Note Depository
Agreement substantially in the form of Exhibit D attached hereto.
"Note Distribution Account" means the account designated as
such, established and maintained pursuant to Section 8.2.
"Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Note Initial Principal Balance" means $965,910,000.
"Note Interest Period" means, with respect to any Payment
Date, the period from the previous Payment Date through the day preceding
such Payment Date, except that the initial Note Interest Period will be the
period from the Closing Date through the day preceding the initial Payment
Date.
"Note Interest Rate" means each of the Class A Note Interest
Rate, Class B Note Interest Rate and Class C Note Interest Rate.
"Note Interest Shortfall" means, with respect to any Payment
Date, the amount of any of the Class A Note Interest Shortfall, the Class B
Note Interest Shortfall or the Class C Note Interest Shortfall.
"Note Maturity Date" means the January 2007 Payment Date.
"Note Owner" means, with respect to a Book-Entry Note, the
person who is the owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency or Foreign Clearing Agency, or on the books of a direct
or indirect Clearing Agency Participant.
"Note Principal Due Date" means any of (a) the Master Trust
Termination Date, (b) the date on which the Investor Interest is paid in
full, (c) the Note Maturity Date, (d) the Certificate Reassignment Date and
(e) the Payment Date in the month following the Monthly Period in which a Pay
Out Event (including an Event of Default) occurs.
"Note Rate" means any of the Class A Note Interest Rate,
Class B Note Interest Rate and Class C Note Interest Rate.
"Note Rating Agency" means any nationally recognized rating
organization selected by Chase USA to rate the Notes.
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"Note Register" and "Note Registrar" means the register
maintained and the registrar appointed pursuant to Section 2.4.
"Note Registrar" shall have the meaning specified in the
definition of "Note Register".
"Officer's Certificate" means a certificate signed by the
chairman of the board, the president, the treasurer, the controller, any
executive or senior vice president or any vice president of the Depositor,
the Administrator or the Servicer, as appropriate, meeting the requirements
of Section 11.1.
"Opinion of Counsel" means a written opinion of counsel (who
may be counsel to the Depositor, the Administrator or the Servicer)
reasonably acceptable in form and substance to the Indenture Trustee, meeting
the requirements of Section 11.1 (or in the case of an Opinion of Counsel
delivered to the Owner Trustee, reasonably acceptable in form and substance
to the Owner Trustee).
"Outstanding" means, when used with respect to Notes, as of
any date of determination, all Notes theretofore authenticated and delivered
under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money
in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of
such Notes (provided that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor, satisfactory to the Indenture Trustee, has been
made); and
(c) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to this Indenture
unless proof satisfactory to the Indenture Trustee is presented that
any such Notes are held by a bona fide purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Notes owned
by the Issuer, any other obligor upon the Notes, the Depositor or any
Affiliate of any of the foregoing Persons shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Indenture Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that a Responsible Officer
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of the Indenture Trustee either actually knows to be so owned or has received
written notice that such Note is so owned shall be so disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee is
not the Issuer, any other obligor upon the Notes, the Depositor or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means, when used with respect to Notes,
as of any date of determination, the aggregate principal amount of all Notes,
or a class of Notes, as applicable, Outstanding as of such date of
determination.
"Owner Trust Accounts" has the meaning specified in Section
8.2.
"Owner Trust Estate" means all right, title and interest of
the Issuer in and to the property and rights assigned to the Issuer pursuant
to the Deposit and Administration Agreement or the Trust Agreement, all funds
on deposit from time to time in the Owner Trust Accounts and all other
property of the Issuer from time to time, including any rights of the Owner
Trustee and the Issuer granted to the Indenture Trustee pursuant to Granting
Clause of this Indenture.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as owner trustee under the Trust Agreement,
and any successor Owner Trustee thereunder.
"Owner Trust Spread Account" has the meaning specified in
Section 8.2.
"Pay Out Event" has the meaning specified in the Prospectus
Supplement.
"Paying Agent" means the Indenture Trustee or any other
Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 and is authorized by the Indenture Trustee to make
the payments to and distributions from the Note Distribution Account,
including payment of principal of or interest on the Notes on behalf of the
Issuer.
"Payment Date" means November 15, 1999 and the 15th day of
each calendar month thereafter, or if such fifteenth day is not a Business
Day, the next succeeding Business Day.
"Permitted Investments" means instruments, investment
property or other property consisting of:
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(a) obligations fully guaranteed by the United States of
America;
(b) demand deposits, time deposits or certificates of
deposit of depository institutions or trust companies, the certificates of
deposit of which have a rating in the highest rating category from Moody's
and Standard & Poor's (unless otherwise specified in the related Prospectus
Supplement);
(c) commercial paper having, at the time of the investment,
a rating in the highest rating category from Moody's and Standard & Poor's;
(d) bankers' acceptances issued by any depository
institution or trust company described in clause (b) above;
(e) certain repurchase agreements transacted with either
(i) an entity subject to the United States federal bankruptcy code or (ii) a
financial institution insured by the FDIC or any broker-dealer with "retail
customers" that is under the jurisdiction of the Securities Investors
Protection Corp.; and
(f) any other investment that by its terms converts to cash
within a finite time period if the Note Rating Agency confirms in writing
that such investment will not adversely affect its then current rating or
ratings of the Notes.
"Person" means a legal person, including any individual,
corporation, limited liability company, estate, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Pooling and Servicing Agreement" means the Second Amended
Pooling and Servicing Agreement dated as of September 1, 1996 among the
Transferor, the Servicer and the Master Trust Trustee, as it may be amended,
modified or supplemented from time to time.
"Predecessor Note" means, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note; and, for the purpose of this
definition, any Note authenticated and delivered under Section 2.5 in lieu
of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action or law or
other judicial or administrative proceeding.
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"Quarterly Excess Spread Percentage" means, with respect to
any Monthly Period, the average of the current Excess Spread Percentage and
the Excess Spread Percentages associated with the two immediately preceding
Monthly Periods.
"Rating Agency Condition" means, with respect to any action
or event, that each Note Rating Agency shall have notified the Depositor, the
Administrator, the Indenture Trustee and the Owner Trustee, in writing, that
such action or event will not result in reduction or withdrawal of any then
outstanding rating of any outstanding Note or Certificate with respect to
which it is the Note Rating Agency.
"Record Date" means, with respect to any Payment Date, the
last Business Day of the immediately preceding calendar month.
"Redemption Date" means in the case of a redemption of the
Notes pursuant to Section 10.1, the Distribution Date specified by the
Administrator pursuant to such Section 10.1.
"Redemption Price" means, with respect to the Notes of each
Class, the Note Principal Balance of the Notes of such Class then
outstanding plus accrued and unpaid interest thereon at the applicable Note
Interest Rate for such Class on the Payment Date on which the Transferor
exercises its option to repurchase the Series Certificate.
"Reference Banks" means four major banks in the London
interbank market selected by the Issuer.
"Required Owner Trust Spread Account Amount" means an amount
determined on the Closing Date and on or prior to each Transfer Date and,
except as described below, will be equal to $9,659,100 unless the Quarterly
Excess Spread Percentage (i) is less than or equal to 4.50% per annum but
greater than 4.00% per annum, in which case the Required Owner Trust Spread
Account Amount will be equal to an amount equal to 1.5% of the Note Initial
Principal Balance; (ii) is less than or equal to 4.00% per annum but greater
than 3.50% per annum, in which case the Required Owner Trust Spread Account
Amount will be increased to an amount equal to 2.5% of the Note Initial
Principal Balance; (iii) is less than or equal to 3.50% per annum but greater
than 3.00% per annum, in which case the Required Owner Trust Spread Account
Amount will be equal to an amount equal to 3.00% of the Note Initial
Principal Balance; (iv) is less than or equal to 3.00% per annum but greater
than 2.50% per annum, in which case the Required Owner Trust Spread Account
Amount will be equal to 3.50% of the Note Initial Principal Balance; (v) is
less than or equal to 2.50% per annum but greater than or equal to 0% per
annum, in which case the Required Owner Trust Spread Account Amount will be
equal to an amount equal to 4.00% of the Note Initial Principal Balance and
(vi) is less than 0% per annum, in which case the Required Owner Trust Spread
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Account Amount will be increased to an amount equal to 7.00% of the Note
Initial Principal Balance. Notwithstanding the foregoing, in no event shall
the Required Owner Trust Spread Account Amount exceed the Class C Note
Principal Balance.
"Responsible Officer" means, with respect to the Indenture
Trustee, any officer within the Corporate Trust Office of the Indenture
Trustee, including any Vice President, Assistant Vice President, Assistant
Treasurer, Assistant Secretary, or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Intermediary" has the meaning specified in
Section 8.2.
"Scheduled Payment Date" means each of the Class A Scheduled
Payment Date, the Class B Scheduled Payment Date and the Class C Scheduled
Payment Date.
"Series Certificate" means the Series 1999-3 Certificate
issued by the Master Trust on the Closing Date.
"Series Certificateholder" means Chase Credit Card Owner
Trust 1999-3 as the holder of the Series Certificate.
"Series Supplement" means the Series 1999-3 Supplement to
the Pooling and Servicing Agreement.
"Servicer" means Chase, in its capacity as the servicer of
the Receivables under the Pooling and Servicing Agreement, and each successor
to Chase (in the same capacity) pursuant to the Pooling and Servicing
Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Services
and its successors and assigns.
"Transfer Date" means the Business Day immediately
proceeding each Distribution Date.
"Transferor" means (a) with respect to the period prior to
June 1, 1996, CMB (formerly known as Chemical Bank) and (b) with respect to
the period beginning on June 1, 1996, Chase USA.
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"Trust Agreement" means the Trust Agreement dated as of
September 29, 1999, between the Depositor and the Owner Trustee, as the same
may be amended and supplemented from time to time.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force on the date hereof, unless otherwise specifically
provided.
SECTION 1.2. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
Commission rule have the meaning assigned to them by such definitions.
SECTION 1.3. Usage of Terms. With respect to all terms in
this Indenture, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words
in a visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Indenture;
references to Persons include their permitted successors and assigns; and the
term "including" means "including without limitation." All references herein
to Articles, Sections, Subsections and Exhibits are references to Articles,
Sections, Subsections and Exhibits contained in or attached to this Indenture
unless otherwise specified, and each such Exhibit is part of the terms of
this Indenture.
SECTION 1.4. Calculations of Interest. All calculations of
interest made hereunder with respect to the Class A Notes and the Class B
Notes shall be made on the basis of a 360-day year comprised of twelve 30-day
months. All calculations of interest made hereunder with respect to the
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Class C Notes shall be made on the basis of a 360-day year based upon the
actual number of days elapsed.
ARTICLE II
THE NOTES
SECTION 2.1. Form. The Notes will be issued in registered
form. The Class A Notes, the Class B Notes and the Class C Notes, in each
case together with the Indenture Trustee's or Authenticating Agent's
certificate of authentication, shall be in substantially the forms set forth
in Exhibits A, B and C, respectively, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined to be appropriate by the officers
executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with
an appropriate reference thereto on the face of the Note. Each Note shall be
dated the date of its authentication. The Notes shall be issuable as
registered Notes in the minimum denomination of $1,000 and in integral
multiples thereof (except, if applicable, for one Note representing a
residual portion of each class which may be issued in a denomination other
than an integral multiple of $1,000).
Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the date of authentication and delivery of such
Notes or did not hold such offices at such date. No Note shall be entitled
to any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Indenture
Trustee or an Authenticating Agent by the manual or facsimile signature of
one of its authorized signatories, and such certificate upon any Note shall
be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. The terms of the Notes set forth in
Exhibits A, B and C are part of the terms of this Indenture.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders), all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
SECTION 2.2. Execution, Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its Authorized
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Officers or by any other authorized signatory of the Issuer. The signature
of any such Authorized Officer on the Notes may be manual or facsimile.
The Indenture Trustee shall, upon written order of the
Depositor, authenticate and deliver Class A Notes for original issue in an
aggregate principal amount of $850,000,000, Class B Notes for original issue
in an aggregate principal amount of $48,295,000, and Class C Notes for
original issue in the aggregate principal amount of $67,615,000. The
respective aggregate principal amount of Class A Notes, Class B Notes and
Class C Notes outstanding at any time may not exceed such amounts, except as
provided in Section 2.5.
SECTION 2.3. Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and at the direction of the Issuer,
the Indenture Trustee shall authenticate and deliver, temporary Notes which
are printed, lithographed, typewritten, mimeographed or otherwise produced,
of the tenor of the Definitive Notes in lieu of which they are issued and
with such variations not inconsistent with the terms of this Indenture as the
officers executing such Notes may determine, as evidenced by their execution
of such Notes.
If temporary Notes are issued, the Issuer will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable
for Definitive Notes upon surrender of the temporary Notes at the office or
agency of the Issuer to be maintained as provided in Section 3.2, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Issuer shall execute and the Indenture Trustee shall
upon receipt of a written order from the Issuer authenticate and deliver in
exchange therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4. Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Note
Registrar shall provide for the registration of the Notes and the
registration of transfers of the Notes. Chase shall initially be "Note
Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided. In the event that, subsequent to the date of issuance of
the Notes, Chase notifies the Indenture Trustee that it is unable to act as
Note Registrar, the Indenture Trustee shall act, or the Indenture Trustee
shall, with the consent of the Issuer, 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 Indenture applicable to it,
to act, as successor Note Registrar under this Indenture. For so long as any
Note is issued as a global Note, the Issuer may, or if and so long as any of
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the Notes are listed on the Luxembourg Stock Exchange and such exchange shall
so require, the Issuer shall appoint a co-registrar in Luxembourg or another
European city.
The Indenture Trustee may revoke such appointment and remove
Chase as Note Registrar if the Indenture Trustee determines that Chase failed
to perform its obligations under this Indenture in any material respect.
Chase shall be permitted to resign as Note Registrar upon 30 days' written
notice to the Indenture Trustee, the Depositor and the Administrator;
provided, however, that such resignation shall not be effective and Chase
shall continue to perform its duties as Note Registrar until the Indenture
Trustee has appointed a successor Note Registrar with the consent of the
Issuer.
If a Person other than the Indenture Trustee is appointed by
the Issuer as the Note Registrar, the Issuer will give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof, and the Indenture Trustee
shall have the right to conclusively rely upon a certificate executed on
behalf of the Note Registrar by an Executive Officer thereof as to the names
and addresses of the Holders of the Notes and the principal amounts and
number of such Notes.
An institution succeeding to the corporate agency business
of the Note Registrar shall continue to be the Note Registrar without the
execution or filing of any paper or any further act on the part of the
Indenture Trustee or such Note Registrar.
The Note Registrar shall maintain in the City of New York an
office or offices or agency or agencies where Notes may be surrendered for
registration of transfer or exchange. The Note Registrar initially
designates its corporate trust office located at 450 West 33rd Street, New
York, New York 10001-2697 as its office for such purposes. The Note
Registrar shall give prompt written notice to the Indenture Trustee, the
Depositor, the Administrator and to the Noteholders of any change in the
location of such office or agency.
Upon surrender for registration of transfer of any Note at
the office or agency of the Issuer to be maintained as provided in Section
3.2, if the requirements of Section 8-401(a) of the Relevant UCC are met, the
Issuer shall execute, the Indenture Trustee shall upon receipt of a written
order from the Issuer authenticate and (if the Note Registrar is different
than the Indenture Trustee, then the Note Registrar shall) deliver to the
Noteholder, in the name of the designated transferee or transferees, one or
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more new Notes, in any authorized denominations, of the same class and a like
aggregate principal amount.
At the option of the Holder, the Notes may be exchanged for
other Notes in any authorized denominations, of the same class and a like
aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange,
if the requirements of Section 8-401(a) of the Relevant UCC are met, the
Issuer shall execute and the Indenture Trustee shall authenticate and (if the
Note Registrar is different than the Indenture Trustee, then the Note
Registrar shall) deliver to the Noteholder, the Notes which the Noteholder
making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or
exchange of the Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or
exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by a commercial bank or
trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or by a
member firm of a national securities exchange, and (ii) accompanied by such
other documents as the Indenture Trustee may require. Each Note surrendered
for registration of transfer or exchange shall be cancelled by the Note
Registrar and disposed of by the Indenture Trustee or Note Registrar in
accordance with its customary practice.
No service charge shall be made to a Holder for any
registration of transfer or exchange of the Notes, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.5 not
involving any transfer.
The preceding provisions of this section notwithstanding,
the Issuer shall not be required to make, and the Note Registrar need not
register, transfers or exchanges of the Notes selected for redemption or of
any Note for a period of 15 days preceding the due date for any payment in
full with respect to such Note.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes.
If (i) any mutilated Note is surrendered to the Note Registrar, or the Note
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Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Note, and (ii) there is delivered to the Note Registrar and the
Indenture Trustee such security or indemnity as may be required by them to
hold the Issuer, the Note Registrar and the Indenture Trustee harmless, then,
in the absence of notice to the Issuer, the Note Registrar or the Indenture
Trustee that such Note has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the Relevant UCC are met,
the Issuer shall execute and the Indenture Trustee or an Authenticating Agent
shall authenticate and (if the Note Registrar is different from the Indenture
Trustee, the Note Registrar shall) deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a replacement Note of like
class, tenor and denomination; provided that if any such destroyed, lost or
stolen Note, but not a mutilated Note, shall have become or within seven days
shall be due and payable, or shall have been called for redemption, instead
of issuing a replacement Note, the Issuer may pay such destroyed, lost or
stolen Note when so due or payable or upon the Redemption Date without
surrender thereof. If, after the delivery of such replacement Note or
payment of a destroyed, lost or stolen Note pursuant to the proviso to the
preceding sentence, a bona fide purchaser of the original Note in lieu of
which such replacement Note was issued presents for payment such original
Note, the Issuer, the Note Registrar and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from the Person
to whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note 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 Issuer, the Note Registrar or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this
Section, the Issuer may require the payment by the Holder of such Note of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee, its agents and counsel) connected
therewith.
Every replacement Note issued pursuant to this Section 2.5
in replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
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SECTION 2.6. Persons Deemed Owner. Prior to due
presentment for registration of transfer of any Note, the Issuer, the
Indenture Trustee, the Note Registrar and any agent of the Issuer, the
Indenture Trustee or the Note Registrar may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such
Note shall be overdue, and neither the Issuer, the Indenture Trustee or the
Note Registrar nor any agent of the Issuer, the Indenture Trustee or the Note
Registrar shall be bound by notice to the contrary.
SECTION 2.7. Payment of Principal and Interest. (a) On
each Transfer Date, the Indenture Trustee, acting in accordance with written
instructions from the Administrator, shall make, or shall direct the Master
Trust Trustee to make, the following deposits and distributions to the extent
of the Available Amount for such Transfer Date, in the following order of
priority:
(i) to the Note Distribution Account for distribution to
the Class A Noteholders on the related Payment Date, the Class A Note
Interest Requirement for such Transfer Date;
(ii) to the Note Distribution Account for distribution to
the Class B Noteholders on the related Payment Date, the Class B Note
Interest Requirement for such Transfer Date;
(iii) to the Note Distribution Account for distribution to
the Class C Noteholders on the related Payment Date, the Class C Note
Interest Requirement for such Transfer Date;
(iv) to the Note Distribution Account for distribution to
the Class A Noteholders on the related Payment Date, the Class A
Noteholders' Principal Distributable Amount for such Transfer Date;
(v) to the Note Distribution Account for distribution to
the Class B Noteholders on the related Payment Date, the Class B
Noteholders' Principal Distributable Amount for such Transfer Date;
(vi) to the Note Distribution Account for distribution to
the Class C Noteholders on the related Payment Date, the Class C
Noteholders' Principal Distributable Amount for such Transfer Date;
(vii) to the Owner Trust Spread Account, the excess, if
any, of (a) the Required Owner Trust Spread Account Amount for such
Transfer Date over (b) the amount on deposit in the Owner Trust
Spread Account on such Transfer Date (not taking into account the
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amount deposited into the Owner Trust Spread Account on such Transfer
Date described by this clause (vii)); and
(viii) to the Certificateholder, on behalf of the Issuer,
the remaining Available Amount for such Transfer Date, if any.
(b) To the extent that on any Transfer Date the Class C
Note Interest Requirement exceeds the Available Amount available to be
deposited into the Note Distribution Account pursuant to subsection
2.7(a)(iii), funds, to the extent of the lesser of the Required Owner Trust
Spread Account Amount for such Transfer Date and the amount on deposit in the
Owner Trust Spread Account on such Transfer Date, shall be withdrawn from the
Owner Trust Spread Account and deposited in the Note Distribution Account to
be applied to pay the Class C Note Interest Requirement on the related
Payment Date pursuant to subsection 2.7(f).
(c) To the extent that, on the Transfer Date related to the
Class C Scheduled Payment Date if the Class B Note Principal Balance shall be
paid in full on or prior to such Payment Date or thereafter and, with respect
to any Note Principal Due Date, the Transfer Date on which an amount equal to
the Class B Note Principal Balance has been deposited in the Note
Distribution Account pursuant to subsection 2.7(a)(v), funds, to the extent
of the least of (i) the Required Owner Trust Spread Account Amount for such
Transfer Date, (ii) the excess of the Class C Note Principal Balance over the
Investor Interest and (iii) the amount on deposit in the Owner Trust Spread
Account (in each case after giving effect to any withdrawals pursuant to
subsection 2.7(b) on such Transfer Date) shall be withdrawn from the Owner
Trust Spread Account (after giving effect to any withdrawals pursuant to
subsection 2.7(b) on such Transfer Date) and deposited in the Note
Distribution Account to be applied to pay the Class C Noteholders' Principal
Distributable Amount on the related Payment Date pursuant to this subsection
2.7(c). On the Note Maturity Date, to the extent of the lesser of the
Required Owner Trust Spread Account Amount for such Transfer Date and the
amount on deposit in the Owner Trust Spread Account (in each case after
giving effect to any withdrawals pursuant to subsection 2.7(b) and the
preceding sentence of this subsection 2.7(c) on such Transfer Date) shall be
withdrawn from the Owner Trust Spread Account (after giving effect to any
withdrawals pursuant to subsection 2.7(b) and the preceding sentence of this
subsection 2.7(c) on such Transfer Date) and deposited in the Note
Distribution Account to be applied to pay the Class C Noteholders' Principal
Distributable Amount on the Note Maturity Date.
(d) On each Payment Date, the amount deposited in the Note
Distribution Account pursuant to subsection 2.7(a)(i) on the related Transfer
Date shall be paid by the Paying Agent to the Class A Noteholders in respect
of interest on the Class A Notes. On each Payment Date, beginning with the
earlier of the Class A Scheduled Payment Date and the Note Principal Due
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Date, the amount deposited in the Note Distribution Account pursuant to
subsection 2.7(a)(iv) on the related Transfer Date shall be paid by the
Paying Agent to the Class A Noteholders in respect of principal of the Class
A Notes. All principal and interest in respect of the Class A Notes shall be
due and payable to the extent not previously paid on the Note Maturity Date.
(e) On each Payment Date, the amount deposited in the Note
Distribution Account pursuant to subsection 2.7(a)(ii) on the related
Transfer Date shall be paid by the Paying Agent to the Class B Noteholders in
respect of interest on the Class B Notes. On each Payment Date, beginning
with the earlier of the Class B Scheduled Payment Date and the Note Principal
Due Date, the amount deposited in the Note Distribution Account pursuant to
subsection 2.7(a)(v) on the related Transfer Date shall be paid by the Paying
Agent to the Class B Noteholders in respect of principal of the Class B
Notes. All principal and interest in respect of the Class B Notes shall be
due and payable to the extent not previously paid on the Note Maturity Date.
(f) On each Payment Date, the amount deposited in the Note
Distribution Account pursuant to subsections 2.7(a)(iii) and 2.7(b) on the
related Transfer Date shall be paid by the Paying Agent to the Class C
Noteholders in respect of interest on the Class C Notes. On each Payment
Date, beginning with the earlier Class C Scheduled Payment Date and the Note
Principal Due Date, the amount deposited in the Note Distribution Account
pursuant to subsections 2.7(a)(vi) and 2.7(c) on the related Transfer Date
shall be paid by the Paying Agent to the Class C Noteholders in respect of
principal of the Class C Notes. All principal and interest in respect of the
Class C Notes shall be due and payable to the extent not previously paid on
the note Maturity Date.
(g) Any installment of interest or principal, if any,
payable on any Note which is punctually paid or duly provided for by the
Issuer on the applicable Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the
preceding Record Date, by check mailed first-class, postage prepaid, to such
Person's address as it appears on the Note Register on such Record Date,
except that, unless Definitive Notes have been issued pursuant to Section
2.12, with respect to the Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee, except for the final installment of
principal payable with respect to such Note on a Payment Date or on a Note
Principal Due Date and except for the Redemption Price for any Note called
for redemption pursuant to Section 10.1 which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall
be held in accordance with Section 3.3.
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(h) All principal and interest payments on each class of
Notes shall be made pro rata to the Noteholders of such class entitled
thereto. The Indenture Trustee shall notify the Person in whose name a Note
is registered at the close of business on the Record Date preceding the
Payment Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be
(i) transmitted by facsimile on such Record Date if Book-Entry Notes are
outstanding or (ii) mailed as provided in Section 10.2 not later than three
Business Days after such Record Date if Definitive Notes are outstanding and
shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where
such Note may be presented and surrendered for payment of such installment.
SECTION 2.8. Cancellation. All Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if
surrendered to any Person other than the Note Registrar, be delivered to the
Note Registrar and shall be promptly cancelled by the Note Registrar. The
Issuer may at any time deliver to the Note Registrar for cancellation any
Notes previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Note Registrar. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Notes may be
held or disposed of by the Note Registrar in accordance with its standard
retention or disposal policy as in effect at the time unless the Issuer shall
direct that they be destroyed or returned to it; provided that such direction
is timely and the Notes have not been previously disposed of by the Note
Registrar.
SECTION 2.9. Release of Collateral. Subject to Section
11.1, the Indenture Trustee shall release property from the lien of this
Indenture only upon request of the Issuer accompanied by an Officer's
Certificate, an Opinion of Counsel and Independent Certificates in accordance
with the TIA Sections 314(c) and 314(d)(1) or an Opinion of Counsel in lieu
of such Independent Certificates to the effect that the TIA does not require
any such Independent Certificates.
SECTION 2.10. Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company (the
initial Clearing Agency) by, or on behalf of, the Issuer. Such Notes shall
initially be registered on the Note Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Note Owner will receive a
Definitive Note representing such Note Owner's interest in such Note, except
as provided in Section 2.12. Unless and until Definitive Notes have been
issued to Note Owners pursuant to Section 2.12:
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(a) the provisions of this Section shall be in full force
and effect;
(b) the Note Registrar, the Paying Agent and the Indenture
Trustee shall be entitled to deal with the Clearing Agency for all purposes
of this Indenture (including the payment of principal of and interest on the
Notes and the giving of instructions or directions hereunder) as the sole
Holder of the Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions of this
Section shall control;
(d) the rights of the Note Owners shall be exercised only
through the Clearing Agency (or to the extent the Note Owners are not
Clearing Agency Participants, through the Clearing Agency Participants
through which such Note Owners own Book-Entry Notes) and shall be limited to
those established by law and agreements between such Note Owners and the
Clearing Agency and/or the Clearing Agency Participants, and all references
in this Indenture to actions by the Noteholders shall refer to actions taken
by the Clearing Agency upon instructions from the Clearing Agency
Participants, and all references in this Indenture to distributions, notices,
reports and statements to the Noteholders shall refer to distributions,
notices, reports and statements to the Clearing Agency, as registered holder
of the Notes, as the case may be, for distribution to the Note Owners in
accordance with the procedures of the Clearing Agency. Pursuant to the Note
Depository Agreement, unless and until Definitive Notes are issued pursuant
to Section 2.12, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Notes to such Clearing Agency Participants;
and
(e) whenever this Indenture requires or permits actions to
be taken based upon instructions or directions of the Holders of the Notes
evidencing a specified percentage of the Outstanding Amount of the Notes, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from the Note Owners
and/or Clearing Agency Participants owning or representing, respectively,
such required percentage of the beneficial interest in the Notes and has
delivered such instructions to the Indenture Trustee.
SECTION 2.11. Notices to Clearing Agency. Whenever a
notice or other communication to the Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to the
Note Owners pursuant to Section 2.12, the Indenture Trustee shall give all
such notices and communications specified herein to be given to the Holders
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of the Notes to the Clearing Agency, and shall have no obligation to the Note
Owners.
SECTION 2.12. Definitive Notes. If (a) the Administrator
advises the Indenture Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with
respect to the Notes, and the Administrator is unable to locate a qualified
successor, (b) the Administrator at its option advises the Indenture Trustee
in writing that it elects to terminate the book-entry system through the
Clearing Agency, or (c) after the occurrence of an Event of Default or a
Master Trust Servicer Default, the Note Owners representing beneficial
interests aggregating not less than a majority of the Outstanding Amount of
the Notes advise the Indenture Trustee and the Clearing Agency through the
Clearing Agency Participants in writing, and if the Clearing Agency shall so
notify the Indenture Trustee that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interests of the Note
Owners, then the Clearing Agency shall notify all the Note Owners of the
occurrence of any such event and of the availability of Definitive Notes to
the Note Owners requesting the same. Upon surrender to the Note Registrar of
the typewritten Note or Notes representing the Book-Entry Notes by the
Clearing Agency, accompanied by re-registration instructions, the Issuer
shall execute and the Indenture Trustee shall authenticate and (if the Note
Registrar is different than the Indenture Trustee, then the Note Registrar
shall) deliver the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of the Definitive Notes, the Indenture
Trustee shall recognize the Holders of the Definitive Notes as the
Noteholders.
SECTION 2.13. Authenticating Agent. (a) The Indenture
Trustee may appoint one or more authenticating agents (each, an
"Authenticating Agent") with respect to the Notes which shall be authorized
to act on behalf of the Indenture Trustee in authenticating the Notes in
connection with the issuance, delivery, registration of transfer, exchange or
repayment of the Notes. The Indenture Trustee hereby appoints Chase as
Authenticating Agent for the authentication of the Notes upon any
registration of transfer or exchange of such Notes. Whenever reference is
made in this Indenture to the authentication of the Notes by the Indenture
Trustee or the Indenture Trustee's certificate of authentication, such
reference shall be deemed to include authentication on behalf of the
Indenture Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Indenture Trustee by an
Authenticating Agent. Each Authenticating Agent, other than Chase, shall be
acceptable to the Issuer.
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(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 Indenture Trustee or such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by
giving written notice of resignation to the Indenture Trustee and the Issuer.
The Indenture Trustee may at any time terminate the agency of an
Authenticating Agent by giving notice of termination to such Authenticating
Agent and to the Issuer. 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 Indenture Trustee or the Issuer, the Indenture
Trustee promptly may appoint a successor Authenticating Agent with the
consent of the Issuer. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless acceptable to the Issuer.
(d) The Administrator shall pay the Authenticating Agent
from time to time reasonable compensation for its services under this Section
2.13.
(e) The provisions of Sections 6.1, 6.2, 6.3, 6.4, 6.7 and
6.9 shall be applicable, mutatis mutandis, to any Authenticating Agent.
(f) Pursuant to an appointment made under this Section
2.13, the Notes may have endorsed thereon, in lieu of the Indenture Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Notes referred to in the within mentioned
Indenture.
THE BANK OF NEW YORK
as Indenture Trustee
By:__________________________________
Authorized Signatory
or
_____________________________________
as Authenticating Agent
for the Indenture Trustee,
_____________________________________
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Authorized Officer
SECTION 2.14. Appointment of Paying Agent. (a) The
Indenture Trustee may appoint a Paying Agent with respect to the Notes. The
Indenture Trustee hereby appoints Chase as the initial Paying Agent. The
Paying Agent shall have the revocable power to withdraw funds from the Owner
Trust Accounts and make distributions to the Noteholders and the
Certificateholders, pursuant to Section 2.7. For so long as any of the Notes
are listed on the Luxembourg Stock Exchange or other stock exchange and such
exchange so requires, the Indenture Trustee shall maintain a co-paying agent
in Luxembourg or the location required by such other stock exchange. The
Indenture Trustee may revoke such power and remove the Paying Agent if the
Indenture Trustee determines in its sole discretion that the Paying Agent
shall have failed to perform its obligations under this Indenture in any
material respect or for other good cause. Chase shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Depositor and the
Indenture Trustee. In the event that Chase shall no longer be the Paying
Agent, the Indenture Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company and may be the Indenture Trustee)
with the consent of the Depositor, which consent shall not be unreasonably
withheld. If at any time the Indenture Trustee shall be acting as the Paying
Agent, the provisions of Sections 6.1, 6.3 and 6.4 shall apply, mutatis
mutandis, to the Indenture Trustee in its role as Paying Agent.
The Indenture Trustee will cause each Paying Agent, other
than itself and Chase, to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it hereby so agrees),
subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by
the Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
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(iv) immediately resign as a Paying Agent and forthwith pay
to the Indenture Trustee all sums held by it in trust for the payment
of the Notes if at any time it ceases to meet the standards required
to be met by the Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(b) Chase in its capacity as initial Paying Agent hereunder
agrees that it (i) will hold all sums held by it hereunder for payment to the
Noteholders in trust for the benefit of the Noteholders entitled thereto (and
with respect to the Owner Trust Spread Account, to the extent specified
herein, the benefit of the Certificateholder) until such sums shall be paid
to such Noteholders and (ii) shall comply with all requirements of the Code
regarding the withholding by the Indenture Trustee of payments in respect of
United States federal income taxes due from Note Owners.
(c) An institution succeeding to the corporate agency
business of the Paying Agent shall continue to be the Paying Agent without
the execution or filing of any paper or any further act on the part of the
Indenture Trustee or such Paying Agent.
SECTION 2.15. CUSIP Numbers. The Issuer in issuing the
Notes may use "CUSIP" numbers (if then generally in use), and, if so, the
Indenture Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer will promptly notify the Indenture
Trustee of any change in the "CUSIP" numbers.
SECTION 2.16. Determination of LIBOR.
(a) On each LIBOR Determination Date, the Indenture Trustee
shall determine LIBOR on the basis of the rate for deposits in United States
dollars for a one-month period which appears on Telerate Page 3750 as of
11:00 a.m., London time, on such date. If such rate does not appear on
Telerate Page 3750, the rate for that LIBOR Determination Date shall be
determined on the basis of the rates at which deposits in United States
dollars are offered by the Reference Banks at approximately 11:00 a.m.,
London time, on that day to prime banks in the London interbank market for a
one-month period. The Indenture Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If
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at least two such quotations are provided, the rate for that LIBOR
Determination Date shall be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that LIBOR
Determination Date will be the arithmetic mean of the rates quoted by major
banks in New York City, selected by the Issuer, at approximately 11:00 a.m.,
New York City time, on that day or loans in United States dollars to leading
European banks for a period equal to the relevant Note Interest Period.
(b) The Indenture Trustee shall provide the Class C Note
Interest Rate applicable to the then current and immediately preceding Note
Interest Periods to any Noteholder requesting such information by telephoning
the Indenture Trustee at the telephone number which is currently (212) 815-
5286.
(c) On each LIBOR Determination Date prior to 12:00 noon
New York City time, the Indenture Trustee shall send to the Issuer by
facsimile notification of LIBOR for the following Note Interest Period.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest. The Issuer
will duly and punctually pay the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, the Issuer will cause to be distributed all amounts on deposit
in the Note Distribution Account on a Payment Date deposited therein pursuant
to Section 2.7 hereof and the Series Supplement (i) for the benefit of the
Class A Notes, to the holders of the Class A Notes, (ii) for the benefit of
the Class B Notes, to the holders of the Class B Notes, (iii) for the benefit
of the Class C Notes, to the holders of the Class C Notes, and (iv) to the
extent so specified, to the Certificateholder. Amounts properly withheld
under the Code by any Person from a payment to any Noteholder of interest
and/or principal shall be considered as having been paid by the Issuer to
such Noteholder for all purposes of this Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer
will maintain in the City of New York an office or agency where Notes may be
surrendered for registration of transfer or exchange. The Issuer hereby
initially appoints the Note Registrar to serve as its agent for the foregoing
purposes. For so long as any of the Notes are listed on the Luxembourg Stock
Exchange or other stock exchange and such exchange so requires, the Indenture
Trustee shall maintain an office or agency in Luxembourg or in the location
required by such other stock exchange. The Issuer will give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail
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to maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office, and the Issuer hereby appoints
the Indenture Trustee as its agent to receive all such surrenders, notices
and demands.
SECTION 3.3. Money for Payments To Be Held in Trust. As
provided in Section 8.2, all payments of amounts due and payable with respect
to any Notes that are to be made from amounts withdrawn from the Note
Distribution Account or the Owner Trust Spread Account pursuant to Section
8.2 shall be made on behalf of the Issuer by the Indenture Trustee or by a
Paying Agent, and no amounts so withdrawn from the Note Distribution Account
or the Owner Trust Spread Account for payments on the Notes shall be paid
over to the Issuer except as provided in this Section 3.3.
On or before each Payment Date and Redemption Date, the
Master Trust Trustee shall deposit or cause to be deposited in the Note
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the benefit of
the Persons entitled thereto and (unless the Paying Agent is the Indenture
Trustee) shall promptly notify the Indenture Trustee of its action or failure
so to act.
The Issuer may, at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee
upon the same trusts as those upon which the sums were held by such Paying
Agent; and upon such a payment by any Paying Agent to the Indenture Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
Subject to applicable laws with respect to the escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for two years after such amount has become due and payable shall be
discharged from such trust and be paid to the Issuer on its request; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof (but only to the extent of the amounts
so paid to the Issuer), and all liability of the Indenture Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided
that the Indenture Trustee or such Paying Agent, before being required to
make any such repayment, shall at the expense of the Issuer cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the City of New
York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
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publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at
the expense of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment to
the Holders whose notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
SECTION 3.4. Existence. Except as otherwise permitted by
the provisions of Section 3.10, the Issuer will keep in full effect its
existence, rights and franchises as a common law trust under the laws of the
State of Delaware (unless it becomes, or any successor to the Issuer
hereunder is or becomes, organized under the laws of any other state or of
the United States of America, in which case the Issuer will keep in full
effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Owner Trust
Estate.
SECTION 3.5. Protection of Owner Trust Estate. The Issuer
will from time to time prepare (or shall cause to be prepared), execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and
other instruments, and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest
(and the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(b) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(c) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(d) preserve and defend title to the Owner Trust Estate and
the rights of the Indenture Trustee and the Noteholders in such Owner Trust
Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be filed by the Indenture Trustee
pursuant to this Section.
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SECTION 3.6. Opinions as to Owner Trust Estate. (a) On
the Closing Date, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
Indenture, any indentures supplemental hereto, and any other requisite
documents, and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and make
effective the lien and security interest of this Indenture and reciting the
details of such action, or stating that, in the opinion of such counsel, no
such action is necessary to make such lien and security interest effective.
(b) On or before March 31 of each calendar year, commencing
with March 31, 2000, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to maintain
the perfection of the lien and security interest created by this Indenture
and reciting the details of such action or stating that in the opinion of
such counsel no such action is necessary to maintain the perfection of such
lien and security interest. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the
perfection of the lien and security interest of this Indenture until March 31
in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of
Series Certificate. (a) The Issuer will not take any action and will use its
best efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Owner Trust
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as ordered by any bankruptcy or other
court or as expressly provided in this Indenture, any other Basic Documents
or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it
in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Administrator to assist the
Issuer in performing its duties under this Indenture.
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(c) The Issuer will punctually perform and observe all of
its obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Owner Trust
Estate, including but not limited to preparing (or causing to be prepared)
and filing (or causing to be filed) all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture
and the Deposit and Administration Agreement in accordance with and within
the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of
a Master Trust Servicer Default under the Pooling and Servicing Agreement,
the Issuer shall promptly notify the Indenture Trustee and the Note Rating
Agencies thereof in accordance with Section 11.4, and shall specify in such
notice the action, if any, the Issuer is taking in respect of such default.
If a Master Trust Servicer Default shall arise from the failure of the
Servicer to perform any of its duties or obligations under the Pooling and
Servicing Agreement with respect to the Series Certificate, the Issuer shall
take all reasonable steps available to it to remedy such failure.
(e) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the
rights of the Indenture Trustee hereunder, the Issuer agrees that, unless
such action is specifically permitted hereunder or under the other Basic
Documents, it will not, without the prior written consent of the Indenture
Trustee or the Holders of at least a majority of Outstanding Amount of the
Notes, amend, modify, waive, supplement, terminate or surrender, or agree to
any amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral or the Basic Documents, or waive timely
performance or observance by the Administrator or the Transferor under the
Deposit and Administration Agreement; provided that no such amendment shall
(i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, distributions that are required to be made for the benefit of
the Noteholders, or (ii) reduce the aforesaid percentage of the Notes which
are required to consent to any such amendment, without the consent of the
Holders of all the Outstanding Notes. If any such amendment, modification,
supplement or waiver shall be so consented to by the Indenture Trustee or
such Holders, the Issuer agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at
its own expense, such agreements, instruments, consents and other documents
as are necessary or appropriate or as the Indenture Trustee may deem
necessary or appropriate under the circumstances.
SECTION 3.8. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(a) except as expressly permitted by this Indenture or the
other Basic Documents, sell, transfer, exchange or otherwise dispose of any
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of the properties or assets of the Issuer, including those included in the
Owner Trust Estate, unless directed to do so by the Indenture Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
properly withheld from such payments under the Code) or assert any claim
against any present or former Noteholder by reason of the payment of the
taxes levied or assessed upon any part of the Owner Trust Estate; or
(c) (i) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to
be released from any covenants or obligations with respect to the Notes under
this Indenture except as may be expressly permitted hereby, (ii) permit any
lien, charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Owner Trust Estate or any part thereof or
any interest therein or the proceeds thereof (other than tax liens,
mechanics' liens and other liens that arise by operation of law) or (iii)
permit the lien of this Indenture not to constitute a valid first priority
(other than with respect to any such tax, mechanics' or other lien) security
interest in the Owner Trust Estate.
SECTION 3.9. Annual Statement as to Compliance. The Issuer
will deliver to the Indenture Trustee on or before March 31 of each year,
commencing March 31, 2000 and otherwise in compliance with the requirements
of TIA Section 314(a)(4), an Officer's Certificate stating, as to the
Authorized Officer signing such Officer's Certificate, that:
(a) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants in all material respects under this Indenture throughout such year,
or, if there has been a default in the compliance of any such condition or
covenant, specifying each such default known to such Authorized Officer and
the nature and status thereof.
SECTION 3.10. The Issuer May Consolidate, Etc. Only on
Certain Terms. (a) The Issuer shall not consolidate or merge with or into
any other Person, unless
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America or any
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State thereof and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all the Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse
tax consequence to the Trust or any Noteholder;
(v) such entity is not subject to regulation as an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(vi) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vii) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation or merger and such supplemental
indenture comply with this Section 3.10 and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this
Indenture or the other Basic Documents, the Issuer shall not convey or
transfer all or substantially all of its properties or assets, including
those included in the Owner Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any State thereof, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all the Notes and the
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performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of the
Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend and hold
harmless the Issuer against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E)
expressly agree by means of such supplemental indenture that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse
tax consequence to the Trust or any Noteholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such conveyance or transfer and such supplemental
indenture comply with this Section 3.10 and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any
consolidation or merger of the Issuer in accordance with Section 3.10(a), the
Person formed by or surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as
if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer in accordance with Section 3.10(b), Chase Credit
Card Owner Trust 1999-3 and the Owner Trustee will be released from every
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covenant and agreement of this Indenture to be observed or performed on the
part of the Issuer with respect to the Notes immediately upon the delivery of
written notice to the Indenture Trustee from the Person acquiring such assets
and properties stating that Chase Credit Card Owner Trust 1999-3 and the
Owner Trustee are to be so released.
SECTION 3.12. No Other Business. The Issuer shall not
engage in any business other than financing, purchasing, owning, selling and
managing the Series Certificate in the manner contemplated by this Indenture
and the other Basic Documents, issuing the Notes, making payments thereon,
and such other activities that are necessary, suitable or desirable to
accomplish the foregoing or are incidental to the purposes as set forth in
Section 2.3 of the Trust Agreement.
SECTION 3.13. No Borrowing. The Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly,
for any indebtedness except for money borrowed in respect of the Notes or in
accordance with the Basic Documents.
SECTION 3.14. Administrator's Obligations. The Issuer
shall use its best efforts to cause the Administrator to comply with the
Deposit and Administration Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Deposit and Administration
Agreement or this Indenture, the Issuer shall not make any loan or advance or
credit to, or guarantee (directly or indirectly or by an instrument having
the effect of assuming another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets or securities
of, or any other interest in, or make any capital contribution to, any other
Person.
SECTION 3.16. Capital Expenditures. The Issuer shall not
make any expenditure (by long-term or operating lease or otherwise) for
capital assets (either realty or personalty) other than the purchase of the
Series Certificate and related property pursuant to the Deposit and
Administration Agreement.
SECTION 3.17. Restricted Payments. The Issuer shall not,
directly or indirectly, (a) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or
a combination thereof, to the Owner Trustee or any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity
interest or security in or of the Issuer, (b) redeem, purchase, retire, or
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otherwise acquire for value any such ownership or equity interest or security
or (c) set aside or otherwise segregate any amounts for any such purpose;
provided that the Issuer may make, or cause to be made, distributions to the
Depositor, the Owner Trustee, the Administrator, the Indenture Trustee, Chase
USA and the Noteholders as permitted by, and to the extent funds are
available for such purpose under, the Basic Documents. The Issuer will not,
directly or indirectly, make payments to or distributions from the Note
Distribution Account except in accordance with this Indenture and the other
Basic Documents.
SECTION 3.18. Notice of Events of Default. The Issuer
agrees to give the Indenture Trustee and the Note Rating Agencies prompt (and
in any event within five Business Days) written notice of each Event of
Default, Master Trust Servicer Default and each default on the part of the
Depositor of its obligations under the Deposit and Administration Agreement.
SECTION 3.19. Further Instruments and Acts. The Issuer
will execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 3.20. Removal of Administrator. So long as any
Notes are Outstanding, the Issuer shall not remove the Administrator without
cause unless the Rating Agency Condition shall have been satisfied in
connection with such removal.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes
except as to (a) rights of registration of transfer and exchange, (b)
substitution of mutilated, destroyed, lost or stolen Notes, (c) rights of
Noteholders to receive payments of principal thereof and interest thereon,
(d) Sections 3.2, 3.3, 3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.15, 3.16 and 3.18,
(e) the rights, obligations and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under Section 6.7 and the
obligations of the Indenture Trustee under Section 4.2 and (f) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, when,
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(i) either:
(A) all Notes theretofore authenticated and
delivered (other than (1) the Notes that have been
destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.5 and (2) the Notes for which
payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the
Indenture Trustee for cancellation;
(B) all Notes not theretofore delivered to the
Indenture Trustee for cancellation have become due and
payable and the Issuer has irrevocably deposited or caused
to be irrevocably deposited with the Indenture Trustee cash
or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the
date such amounts are payable), in trust for such purpose,
in an amount sufficient to pay and discharge the entire
unpaid principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due on their respective Scheduled Payment
Dates, Note Maturity Date or Redemption Date (if the Notes
shall have been called for redemption pursuant to Section
10.1);
(ii) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable
requirements of Section 11.1 and each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of Issuer to the Indenture Trustee under Section 6.7 and, if
money shall have been deposited with the Indenture Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of Indenture
Trustee under Section 4.2 and the last paragraph of Section 3.3 shall survive
such satisfaction and discharge.
SECTION 4.2. Application of Trust Money. All moneys
deposited with the Indenture Trustee pursuant to Section 4.1(i)(B) shall be
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held in trust and applied by it, in accordance with the provisions of the
Notes and this Indenture, to the payment, either directly or through any
Paying Agent, as the Indenture Trustee may determine, to the Holders of the
particular Notes for the payment or redemption of which such moneys have been
deposited with the Indenture Trustee, of all sums due and to become due
thereon for principal and interest; but such moneys need not be segregated
from other funds except to the extent required herein or in the Deposit and
Administration Agreement or required by law.
SECTION 4.3. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Notes, all moneys then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to
be held and applied according to Section 3.3 and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default. "Event of Default",
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the failure by the Issuer to pay the outstanding
principal amount of any Class of Notes in full on the Note Maturity Date;
(b) a failure by the Issuer to pay any interest on any of
the Notes on any Payment Date, and such failure shall continue for 35
Business Days;
(c) an Insolvency Event occurs related to the Issuer;
(d) failure on the part of the Issuer duly to observe or
perform in any material respect any covenants or agreements of the Issuer set
forth herein, which failure has a material adverse effect on the Noteholders
and which continues unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Issuer by the Administrator on the Indenture
Trustee, or to the Issuer and the Indenture Trustee by the Holders of Notes
with Outstanding Balances aggregating not less than 50 % of the Outstanding
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Balances of the Notes and continues to affect materially and adversely the
interests of the Noteholders for such period; and
(e) the Issuer is subject to regulation as an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default shall occur and be continuing, then and in
every such case the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the Notes
may declare all the Notes to be immediately due and payable, by a notice in
writing to the Issuer (and to the Indenture Trustee if given by the
Noteholders), and upon any such declaration the unpaid principal amount of
such Notes, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of
maturity has been made and before a judgment or decree for payment of the
money due has been obtained by the Indenture Trustee as hereinafter in this
Article V; provided, the Holders of the Notes representing a majority of the
Outstanding Amount of the Notes, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its
consequences; provided, that, no such rescission shall affect any subsequent
default or impair any right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by the Indenture Trustee. (a) The Issuer covenants that if (i)
default is made in the payment of any interest on any Note when the same
becomes due and payable, and such default continues beyond the grace period
specified herein for such payment, or (ii) default is made in the payment of
the principal of any Note when the same becomes due and payable, the Issuer
will, upon demand of the Indenture Trustee, pay to it, for the benefit of the
Holders of the Notes, the whole amount then due and payable on such Notes for
principal and interest, with interest upon the overdue principal, and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the rate borne by the Notes.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor
upon such Notes and collect in the manner provided by law out of the property
of the Issuer or other obligor upon such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
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(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate proceedings as the Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by law.
(d) In case there shall be pending, relative to the Issuer
or any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Owner Trust Estate, proceedings under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in the case of any other
comparable judicial proceedings relative to the Issuer or other obligor upon
the Notes, or to the creditors or property of the Issuer or such other
obligor, the Indenture Trustee, irrespective of whether the principal of any
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect of the
Notes and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence, bad faith or willful misconduct) and of the Noteholders
allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or person performing similar functions in
any such proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders and of
the Indenture Trustee on their behalf; and
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(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee or the Holders of the Notes allowed
in any judicial proceedings relative to the Issuer, its creditors and
its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such Noteholders,
to pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of
negligence or willful misconduct.
(e) Nothing herein contained shall be deemed to authorize
the Indenture Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Indenture Trustee to vote in respect of the claim
of any Noteholder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production thereof
in any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Notes.
(g) In any proceedings brought by the Indenture Trustee
(and also any proceedings involving the interpretation of any provision of
this Indenture to which the Indenture Trustee shall be a party), the
Indenture Trustee shall be held to represent all the Holders of the Notes,
and it shall not be necessary to make any Noteholder a party to any such
proceedings.
SECTION 5.4. Remedies; Priorities. (a) If an Event of
Default shall have occurred and be continuing and the Notes have been
accelerated under Section 5.2, the Indenture Trustee may do one or more of
the following (subject to Section 5.5):
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(i) institute proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on
the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Owner Trust Estate;
(iii) exercise any remedies of a secured party under the
Relevant UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Holders of the Notes; and
(iv) sell the Owner Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law;
provided that the Indenture Trustee may not sell or otherwise liquidate the
Owner Trust Estate following an Event of Default, unless (A) the Holders of
100% of the Outstanding Amount of the Notes consent thereto, (B) the proceeds
of such sale or liquidation distributable to the Noteholders are sufficient
to discharge in full all amounts then due and unpaid upon such Notes for
principal and interest and the sum of the Class A Note Principal Balance,
Class B Note Principal Balance and Class C Note Principal Balance plus
accrued interest thereon, or (C)(1) there has been an Event of Default
described in Section 5.1(a) or (b), (2) the Indenture Trustee determines that
the Owner Trust Estate will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have become
due if the Notes had not been declared due and payable, and (3) the Indenture
Trustee obtains the consent of Holders of 66-2/3% of the Outstanding Amount
of the Notes. In determining such sufficiency or insufficiency with respect
to clauses (B) and (C), the Indenture Trustee may, but need not, obtain and
rely upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action and as
to the sufficiency of the Owner Trust Estate for such purpose. In addition,
the Indenture Trustee may sell or otherwise liquidate the portion of the
Owner Trust Estate consisting of the Series Certificate only in accordance
with and upon satisfaction of the requirements of Section 16 of the Series
Supplement.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out such money or property held as
Collateral for the benefit of the Noteholders in the following order:
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FIRST: to Holders of the Class A Notes for amounts due and
unpaid on the Class A Notes for interest and principal, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Class A Notes for interest and principal;
SECOND: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes for interest and principal, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Class B Notes for interest and principal;
THIRD: to Holders of the Class C Notes for amounts due and
unpaid on the Class C Notes for interest and principal, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Class C Notes for interest and principal;
FOURTH: to the Issuer for payment of all liabilities of the
Issuer in accordance with the Basic Documents and applicable law;
and.
FIFTH: to the Certificateholders.
The Indenture Trustee may, upon notification to the Issuer,
fix a record date and payment date for any payment to Noteholders pursuant to
this Section. At least fifteen (15) days before such record date, the
Indenture Trustee shall mail or send by facsimile to each Noteholder a notice
that states the record date, the payment date and the amount to be paid.
SECTION 5.5. Optional Preservation of the Owner Trust
Estate. If the Notes have been declared to be due and payable under Section
5.2 following an Event of Default and such declaration and its consequences
have not been rescinded and annulled, the Indenture Trustee may, but need
not, elect to maintain possession of the Owner Trust Estate. It is the
desire of the parties hereto and the Noteholders that there be at all times
sufficient funds for the payment of principal of and interest on the Notes,
and the Indenture Trustee shall take such desire into account when
determining whether to maintain possession of the Owner Trust Estate. In
determining whether to maintain possession of the Owner Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Owner Trust Estate for such purpose.
SECTION 5.6. Limitation of Suits. No Holder of any Note
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
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(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding
Amount of the Notes have made written request to the Indenture Trustee to
institute such proceeding in respect of such Event of Default in its own name
as the Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the Holders
of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of the Notes
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of the Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
the Notes, each representing less than a majority of the Outstanding Amount
of the Notes, the Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of this
Indenture.
SECTION 5.7. Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any,
on such Note on or after the respective due dates thereof expressed in such
Note or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.8. Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
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discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders shall continue as through no such
proceeding had been instituted.
SECTION 5.9. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 5.10. Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair
any such right or remedy or constitute a waiver of any such Default or Event
of Default or an acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11. Control by Noteholders. The Holders of a
majority of the Outstanding Amount of the Notes shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee with respect to the Notes or exercising
any trust or power conferred on the Indenture Trustee; provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture;
(b) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Owner Trust
Estate shall be by the Holders of the Notes representing not less than 100%
of the Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Owner Trust Estate
pursuant to such Section, then any direction to the Indenture Trustee by
Holders of the Notes representing less than 100% of the Outstanding Amount of
the Notes to sell or liquidate the Owner Trust Estate shall be of no force
and effect;
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(d) the Indenture Trustee may take any other action deemed
necessary by the Indenture Trustee that is not inconsistent with such
direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, the Indenture Trustee need
not take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to
such action.
SECTION 5.12. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes as provided in
Section 5.2, the Holders of the Notes of not less than a majority of the
Outstanding Amount of the Notes may, on behalf of all such Holders, waive any
past Default or Event of Default and its consequences except a Default (a) in
payment of principal of or interest on any of the Notes or (b) in respect of
a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Note. In the case of any such waiver, the
Issuer, the Indenture Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto. The Issuer shall give prompt written notice of any
waiver to the Note Rating Agencies.
SECTION 5.13. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee for any action taken,
suffered or omitted by it as the Indenture Trustee, the filing by any party
litigant in such Proceeding of an undertaking to pay the costs of such
Proceeding, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such Proceeding, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to (a) any suit instituted by the Indenture
Trustee, (b) any suit instituted by any Noteholder or group of Noteholders,
in each case holding in the aggregate more than 10% of the Outstanding Amount
of the Notes, or (c) any suit instituted by any Noteholder for the
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enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture
(or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14. Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Indenture Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 5.15. Action on Notes. The Indenture Trustee's
right to seek and recover judgment on the Notes or under this Indenture shall
not be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture. Neither the lien of this Indenture
nor any rights or remedies of the Indenture Trustee or the Noteholders shall
be impaired by the recovery of any judgment by the Indenture Trustee against
the Issuer or by the levy of any execution under such judgment upon any
portion of the Owner Trust Estate or upon any of the assets of the Issuer.
Any money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.04(b).
SECTION 5.16. Performance and Enforcement of Certain
Obligations. (a) The Issuer agrees to take all such lawful action as is
necessary to compel or secure the performance and observance by the Depositor
and the Administrator, as applicable, of each of their respective obligations
to the Issuer under or in connection with the Deposit and Administration
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Deposit and Administration Agreement,
including the transmission of notices of default on the part of the Depositor
or the Administrator thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Depositor or the Administrator of each of their respective obligations under
the Deposit and Administration Agreement.
(b) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall be in
writing (which may be via facsimile) of the Holders of 66-2/3% of the
Outstanding Amount of the Notes shall, foreclose upon its security interest
in the Issuer's rights under the Deposit and Administration Agreement and
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Depositor or the Administrator under or in connection with the
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Deposit and Administration Agreement, including the right or power to take
any action to compel or secure performance or observance by the Depositor or
the Administrator of each of their respective obligations to the Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Deposit and Administration Agreement, and any
right of the Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of the Indenture Trustee. (a) The
Indenture Trustee, both prior to and after the occurrence of an Event of
Default, shall undertake to perform such duties and only such duties as are
specifically set forth in this Indenture and the Deposit and Administration
Agreement. If an Event of Default actually known to the Indenture Trustee
has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and the Deposit and
Administration Agreement and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs; provided, however, that if the
Indenture Trustee shall assume the duties of the Administrator pursuant to
Section 5.2 of the Deposit and Administration Agreement, the Indenture
Trustee in performing such duties shall use the degree of skill and attention
customarily exercised by an administrator with respect to a similar trust
estate that it administers for itself.
The Indenture Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders, or other
instruments furnished to the Indenture Trustee that shall be specifically
required to be furnished pursuant to any provision of this Indenture or the
Deposit and Administration Agreement, shall examine them to determine whether
they substantially conform to the requirements of this Indenture or the
Deposit and Administration Agreement; provided, however, that the Indenture
Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Administrator to the Indenture Trustee pursuant
to this Indenture or the Deposit and Administration Agreement and the
Indenture Trustee need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein.
(b) No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action,
its own negligent failure to act or its own bad faith or wilful misconduct;
provided, however, that:
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(i) prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default, the Indenture Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and the Deposit and
Administration Agreement, and no implied covenants or obligations
shall be read into this Indenture or the Deposit and Administration
Agreement against the Indenture Trustee, and in the absence of bad
faith on its part or manifest error, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture or the Deposit and Administration
Agreement;
(ii) The Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless
it is proved that the Indenture Trustee was negligent in ascertaining
the pertinent facts nor shall the Indenture Trustee be liable with
respect to any action it takes or omits to take in good faith in
accordance with this Indenture or in accordance with a direction
received by it pursuant to Section 5.11; and
(iii) the Indenture Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority
in principal amount of the Notes or Certificates, determined as
provided in Sections 2.1, 2.4 and 5.12, relating to the time, method
and place of conducting any proceeding for any remedy available to
the Indenture Trustee, or exercising any trust or power conferred
upon the Indenture Trustee, under this Indenture with respect to the
Notes or Certificates of such series.
(c) The Indenture Trustee shall not be liable for interest
on any money received by it except as the Indenture Trustee may agree in
writing with the Issuer.
(d) Money held in trust by the Indenture Trustee need not
be segregated from other funds except to the extent required by law or the
terms of this Indenture or the Deposit and Administration Agreement.
(e) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or indemnity satisfactory to
it against such risk or liability is not assured to it, and none of the
provisions contained in this Indenture shall in any event require the
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Indenture Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Administrator (including its obligations as
custodian) under this Indenture except during such time, if any, as the
Indenture Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Administrator in accordance with the
terms of the Deposit and Administration Agreement.
(f) The Indenture Trustee shall not be charged with
knowledge of an Event of Default until such time as a Responsible Officer
shall have actual knowledge or have received written notice thereof.
(g) Except for actions expressly authorized by this
Indenture or, based upon an Opinion of Counsel, in the best interests of the
Noteholders, the Indenture Trustee shall take no action reasonably likely to
impair the security interests created or existing under any asset which is
part of the Collateral or to impair the value of any asset which is part of
the Collateral.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the
Indenture Trustee shall be subject to the provisions of this Section and to
the provisions of the TIA.
SECTION 6.2. Rights of the Indenture Trustee. (a) The
Indenture Trustee may conclusively rely on any document (whether in its
original or facsimile form) believed by it to be genuine and to have been
signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Opinion of Counsel. The Indenture Trustee shall
not be liable for any action it takes, suffers or omits to take in good faith
in reliance on the Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder. The Indenture Trustee shall have no
duty to monitor the performance of the Issuer.
(d) The Indenture Trustee shall not be personally liable
for any action it takes or omits to take in good faith which it believes to
be authorized or within its rights or powers; provided, that the Indenture
Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
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(e) The Indenture Trustee may consult with counsel of its
own selection, and the written advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Notes shall be full and
complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance
with the written advice or opinion of such counsel. A copy of such written
advice or Opinion of Counsel shall be provided to the Depositor, the
Administrator and the Note Rating Agencies.
(f) Prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, the
Indenture Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, or other
paper or document, unless requested in writing to do so by Holders of the
Notes evidencing not less than 25% of the Outstanding Amount of the Notes;
provided, however, that if the payment within a reasonable time to the
Indenture Trustee of the costs, expenses, or liabilities likely to be
incurred by it in the making of such investigation shall be, in the opinion
of the Indenture Trustee, not reasonably assured to the Indenture Trustee by
the security afforded to it by the terms of this Indenture, the Indenture
Trustee may require reasonable indemnity satisfactory to it against such
cost, expense, or liability or payment of such expenses as a condition
precedent to so proceeding. If the Indenture Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney
at the sole cost of the Issuer and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation. Nothing in
this clause (f) shall affect the obligation of the Issuer or the
Administrator to observe any applicable law prohibiting disclosure of
information regarding the obligors.
(g) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Indenture Trustee security or
indemnity satisfactory to the Indenture Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request
or direction.
(h) The Indenture Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Indenture Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Indenture
Trustee at the Corporate Trust Office of the Indenture Trustee, and such
notice references the Notes and Certificate and this Indenture.
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(i) The rights, privileges, protections, immunities and
benefits given the Indenture Trustee, including, without limitation, its
right to be indemnified are extended to, and shall be enforceable by, the
Indenture Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 6.3. Individual Rights of the Indenture Trustee.
The Indenture Trustee in its individual or any other capacity may become the
owner or pledgee of the Notes and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not the Indenture
Trustee; provided, however, that the Indenture Trustee shall take no such
action that shall cause it to no longer meet the requirements of Rule 3(a)-
7(a)(4)(i) under the Investment Company Act of 1940, as amended (the
"Investment Company Act"). Any Paying Agent, the Note Registrar, co-
registrar or co-paying agent may do the same with like rights. However, the
Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4. The Indenture Trustee's Disclaimer. The
Indenture Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, shall not be
accountable for the Issuer's use of the proceeds from the Notes, and shall
not be responsible for any statement of the Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes
other than the Indenture Trustee's certificate of authentication.
SECTION 6.5. Notice of Defaults. If a Default occurs and
is continuing and if it is either actually known or written notice of the
existence thereof has been delivered to a Responsible Officer of the
Indenture Trustee, the Indenture Trustee shall mail to each Noteholder notice
of the Default within 90 days after such knowledge or notice occurs. Except
in the case of a Default in accordance with the provisions of Section 313(c)
of the TIA in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice
is in the interest of the Noteholders.
SECTION 6.6. Reports by the Indenture Trustee to Holders.
Within the prescribed period of time for tax reporting purposes after the end
of each calendar year during the term of this Indenture, the Indenture
Trustee shall deliver to each Noteholder such information as may be
reasonably required to enable such Holder to prepare its United States
federal, state and local income or franchise tax returns for such calendar
year.
SECTION 6.7. Compensation and Indemnity. The Issuer shall
cause the Administrator pursuant to the Deposit and Administration Agreement
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to pay to the Indenture Trustee from time to time such compensation as agreed
upon from time to time for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall cause the Administrator pursuant to the
Deposit and Administration Agreement to reimburse the Indenture Trustee for
all out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall cause the Administrator pursuant to the Deposit and
Administration Agreement to fully indemnify the Indenture Trustee and any
predecessor Indenture Trustee against any and all loss, liability, claim,
damage or expense (including the fees and expenses of either in-house counsel
or outside counsel, but not both) incurred by it in connection with the
acceptance and administration of this trust including costs and expenses of
defending itself against any claim (whether asserted by the Issuer or any
Holder or any other Person) or liability in connection with the performance
of its duties hereunder. The Indenture Trustee shall notify the Issuer and
the Administrator promptly of any claim for which it may seek indemnity.
The Administrator's payment obligations to the Indenture
Trustee pursuant to this Section shall survive the discharge of this
Indenture. When the Indenture Trustee incurs expenses after the occurrence
of a Default specified in Section 5.1(d) with respect to the Issuer, the
expenses are intended to constitute expenses of administration under Title 11
of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law.
Notwithstanding anything herein to the contrary, the
Indenture Trustee's right to enforce any of the Administrator's payment
obligations pursuant to this Section 6.7 shall be subject to the provisions
of Section 11.16 and Section 11.17.
SECTION 6.8. Replacement of the Indenture Trustee. (a)
The Indenture Trustee may give notice of its intent to resign at any time by
so notifying the Issuer. The Holders of a majority in Outstanding Amount of
the Notes may remove the Indenture Trustee by so notifying the Indenture
Trustee and may appoint a successor Indenture Trustee. The Issuer shall
remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section
6.11 ;
(ii) the Indenture Trustee is adjudged bankrupt or
insolvent;
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(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the Indenture
Trustee for any reason (the Indenture Trustee in such event being referred to
herein as the retiring Indenture Trustee), the Issuer shall promptly appoint
a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer and thereupon the resignation or removal of the Indenture Trustee
shall become effective, and the successor Indenture Trustee, without any
further act, deed or conveyance shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture
Trustee shall mail a notice of its succession to Noteholders. The retiring
Indenture Trustee shall promptly transfer all property held by it as the
Indenture Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee gives notice of its
intent to resign or is removed, the retiring Indenture Trustee, the Issuer or
the Holders of a majority in Outstanding Amount of the Notes may petition at
the expense of the Issuer any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section
6.11, any Noteholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
(f) Any resignation or removal of the Indenture Trustee and
appointment of a successor Indenture Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Indenture Trustee pursuant to Section 6.8(c) and
payment of all fees and expenses owed to the outgoing Indenture Trustee.
(g) Notwithstanding the resignation or removal of the
Indenture Trustee pursuant to this Section, the Issuer's and the
Administrator's obligations under Section 6.7 shall continue for the benefit
of the retiring Indenture Trustee. The Indenture Trustee shall not be liable
for the acts or omissions of any successor Indenture Trustee.
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SECTION 6.9. Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee.
The Indenture Trustee shall provide the Issuer and the Note Rating Agencies
prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee
may adopt the certificate of authentication of any predecessor Indenture
Trustee, and deliver such Notes so authenticated; and in case at that time
any of the Notes shall not have been authenticated, any successor Indenture
Trustee may authenticate such Notes either in the name of any predecessor
Indenture Trustee hereunder or in the name of the successor Indenture
Trustee; and in all such cases such certificate of authentication shall have
the same full force as is provided anywhere in the Notes or in this Indenture
with respect to the certificate of authentication of the Indenture Trustee.
SECTION 6.10. Appointment of Co-Indenture Trustee or
Separate Indenture Trustee. (a) Notwithstanding any other provisions of
this Indenture, at any time, for the purpose of meeting any legal requirement
of any jurisdiction in which any part of the Issuer may at the time be
located, the Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-trustee
or co-trustees, or separate trustee or separate trustees, of all or any part
of the Issuer, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders, such title to the Issuer, or any part
hereof, and, subject to the other provisions of this Section, such power,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. The Administrator will pay all reasonable fees and
expenses of any co-trustee or co-trustees or separate trustee or separate
trustees. The appointment of any separate trustee or co-trustee shall not
absolve the Indenture Trustee of its obligations under this Indenture. No
co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as an Indenture Trustee under Section 6.11, and no notice to
the Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8.
(b) Every 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 Indenture Trustee shall be conferred or imposed upon
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and exercised or performed by the Indenture 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
Indenture 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 Indenture 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 the Owner Trust Estate 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
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder,
including acts or omissions of predecessor or successor trustees; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture 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 Indenture and the conditions of this Article VI. 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 Indenture Trustee or separately, as may
be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee (with a copy given to the Issuer).
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee 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 Indenture on its behalf and in its name. If
any separate trustee or co-trustee shall die, 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 Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 6.11. Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a).
The Indenture Trustee shall at all times meet the requirements of Rule 3(a)-
7(a)(4)(i) under the Investment Company Act and shall not provide credit or
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credit enhancement to the Issuer. The Indenture Trustee shall have a combined
capital and surplus of at least $150,000,000 as of the last day of the most
recent fiscal quarter for such institution and shall be subject to
examination or supervision by federal or state authorities. The Indenture
Trustee shall not be an Affiliate of the Issuer, the Transferor, the
Administrator or the Servicer. The long-term unsecured debt of the Indenture
Trustee shall at all times be rated not lower than "BBB-" by Standard &
Poor's and Fitch (if rated by Fitch) and "Baa3" by Moody's or such other
ratings as are acceptable to the Note Rating Agencies. The Indenture Trustee
shall comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); provided that
there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in the TIA
Section 310(b)(1) are met.
SECTION 6.12. Preferential Collection of Claims Against the
Issuer. The Indenture Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). An
Indenture Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. The Issuer To Furnish the Indenture Trustee
Names and Addresses of the Noteholders. The Issuer will furnish or cause to
be furnished to the Indenture Trustee (a) not more than five days after each
Record Date, a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Holders as of such Record Date and
(b) at such other times as the Indenture Trustee may request in writing,
within 14 days after receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 10 days prior to the time
such list is furnished, provided that so long as the Indenture Trustee is the
Note Registrar, no such list shall be required to be furnished.
SECTION 7.2. Preservation of Information; Communications to
the Noteholders. (a) The Indenture Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of the Holders of
Notes contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of the Holders of Notes
received by the Indenture Trustee in its capacity as the Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
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(b) The Noteholders may communicate pursuant to
TIA Section 312(b) with other Noteholders with respect to their rights under
this Indenture or under the Notes. Upon the issuance of Definitive Notes,
three or more holders of the Notes (each of whom has owned a Note for at
least six months) may, by written request to the Indenture Trustee pursuant
to the terms of the Indenture, obtain access to the list of all Noteholders
maintained by the Indenture Trustee for the purpose of communicating with
other Noteholders with respect to their rights under the Indenture or the
Notes. The Indenture Trustee may elect not to afford the requesting
Noteholders access to the list of such Noteholders if it agrees to mail the
desired communication or proxy, on behalf and at the expense of the
requesting Noteholders, to all Noteholders of record.
(c) The Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA Section 312(c).
SECTION 7.3. Reports by the Administrator. On or prior to
each Transfer Date, the Administrator will provide to the Indenture Trustee
for the Indenture Trustee to forward to each Noteholder of record, and to the
Owner Trustee, a statement setting forth (to the extent applicable) the
following information as to the Notes with respect to the related Payment
Date or the period since the previous Payment Date, as applicable:
(i) the amount of the distribution allocable to principal
of the Notes;
(ii) the amount of the distribution allocable to interest
on or with respect to the Notes;
(iii) the aggregate outstanding principal balance of the
Notes after giving effect to all payments reported under clause (i)
above on such date; and
(iv) the amount on deposit in a Owner Trust Spread Account,
if any, on such Payment Date, after giving effect to all transfers
and withdrawals therefrom and all transfers and deposits thereto on
such Payment Date, and the amount required to be on deposit in the
Owner Trust Spread Account on such date.
Each amount set forth pursuant to clauses (i) and (ii) above
will be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes.
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SECTION 7.4. Reports by the Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee within 15 days after
the Issuer is required to file the same with the Commission, copies
of any annual reports and of any information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.4(a) as may be required by rules and
regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year
of the Issuer shall end on December 31 of each year.
SECTION 7.5. Reports by the Indenture Trustee. Within 60
days after each July 15, beginning with July 15, 2000 the Indenture Trustee
shall mail to each Noteholder as required by TIA Section 313(c) a brief
report dated as of such date that complies with TIA Section 313(a). The
Indenture Trustee also shall comply with TIA Section 313(b). A copy of each
report at the time of its mailing to Noteholders shall be filed by the
Indenture Trustee with the Commission and each stock exchange, if any, on
which the Notes are listed. The Issuer shall notify the Indenture Trustee if
and when the Notes are listed on any stock exchange or delisted therefrom.
On each Payment Date, the Indenture Trustee shall include with each payment
to each Noteholder a copy of the statement for the related Monthly Period
provided to the Indenture Trustee pursuant to subsection 4.1(d) of the
Deposit and Administration Agreement.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Money. Except as otherwise
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in
this Indenture and the Deposit and Administration Agreement. Except as
otherwise provided in this Indenture, if any default occurs in the making of
any payment or performance under any agreement or instrument that is part of
the Owner Trust Estate, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2. Owner Trust Accounts. On or prior to the
Closing Date, the Issuer shall cause the Administrator to establish and
maintain, an Eligible Deposit Account, in the name of the Indenture Trustee,
for the benefit of the Noteholders, the "Note Distribution Account" and
another Eligible Deposit Account in the name of the Indenture Trustee for the
benefit of the Class C Noteholders and, to the extent expressly provided
herein, the Certificateholder, the "Owner Trust Spread Account".
The "Note Distribution Account" shall bear a designation
clearly indicating that the funds deposited therein are held for the benefit
of the Noteholders. The "Owner Trust Spread Account" shall bear a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Class C Noteholders and the Certificateholder. The
Indenture Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Note Distribution Account and the Owner
Trust Spread Account (collectively, the "Owner Trust Accounts") and in all
proceeds thereof. The Note Distribution Account shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the
Noteholders. The Owner Trust Spread Account shall be under the sole dominion
and control of the Indenture Trustee for the benefit of the Class C
Noteholders (and, to the extent expressly provided herein, the
Certificateholder). Each Owner Trust Account shall be a securities account.
The Bank of New York agrees that it is the securities intermediary (the
"Securities Intermediary") with respect thereto, and as such agrees that the
account is maintained for the Issuer and, subject to the terms of this
agreement, that the Issuer is entitled to exercise the rights that comprise
any financial asset credited to the Owner Trust Spread Account. All
securities or other property underlying any financial assets credited to the
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Owner Trust Spread Account shall be registered in the name of The Bank of New
York, indorsed to The Bank of New York in blank or credited to another
securities account maintained in the name of The Bank of New York and in no
case will any financial asset credited to the Owner Trust Spread Account be
registered in the name of the Issuer, payable to the order of the Issuer or
specially indorsed to the Issuer. Until termination of this Indenture, the
Issuer shall not be entitled to give the Indenture Trustee any entitlement
orders with respect to the Owner Trust Spread Account. If, at any time, any
Owner Trust Account ceases to be an Eligible Deposit Account, the
Administrator shall notify the Indenture Trustee, and the Indenture Trustee
upon being notified (or the Administrator on its behalf) shall, within 10
Business Days, establish a new Owner Trust Account which meets the conditions
specified in the definition of Eligible Deposit Account, and shall transfer
any cash or any investments to such new Owner Trust Account. The Indenture
Trustee, at the direction of the Administrator, shall make withdrawals from
the Owner Trust Accounts from time to time, in the amounts and for the
purposes set forth in this Indenture.
On the Closing Date, the Issuer shall deposit in the Owner
Trust Spread Account the amount received from the Depositor pursuant to
subsection 2.1(a) of the Deposit and Administration Agreement. Funds on
deposit in the Owner Trust Spread Account shall be invested at the direction
of the Administrator by the Indenture Trustee in Permitted Investments. On
each Transfer Date, after all deposits to and withdrawals from the Owner
Trust Spread Account, such amounts shall be invested in Permitted Investments
maturing on the next succeeding Transfer Date, or on the Closing Date in
Permitted Investments maturing on the first Transfer Date. On each Transfer
Date, the Indenture Trustee, acting at the Administrator's request, shall
transfer Investment Earnings from the Owner Trust Spread Account to the Note
Distribution Account to the extent required to pay the Class C Note Interest
Requirement on the related Payment Date pursuant to subsection 2.7(a)(iii).
The Indenture Trustee shall cause such Permitted Investments to be held in
such manner as to give the Indenture Trustee "control" (as such term is
defined in the Section 8-106 of the New York UCC) over such Permitted
Investments. No Permitted Investment shall be disposed of prior to its
maturity. The Securities Intermediary shall comply with entitlement orders
issued by the Indenture Trustee without further consent by the Issuer.
The Required Owner Trust Account Amount shall be adjusted on
each Transfer Date until the amount required is on deposit in the Owner Trust
Spread Account; provided, however, that the Required Owner Trust Spread
Account Amount shall not be adjusted downward until at least three months
have elapsed since the first month for which an increase was required. To
the extent so instructed by the Administrator on any Transfer Date, the
Indenture Trustee shall, if the amount on deposit in the Owner Trust Spread
Account is greater than the Required Owner Trust Spread Account Amount for
such Transfer Date, pay the amount of such excess to the Certificateholder.
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SECTION 8.3. Owner Trust Spread Account Amount Increase.
Upon the occurrence of the Pay Out Event (other than as a result of an Event
of Default), the Required Owner Trust Spread Account Amount shall
automatically be increased to 4.0% of the initial Note Initial Principal
Balance. If an Event of Default pursuant to subsection 5.01(c), (d) or (e)
has occurred and is continuing, the Indenture Trustee may by written notice,
or shall upon written notice from Holders of at least 66 2/3% of the
Outstanding Amount of the Notes to the Administrator, increase the Required
Owner Trust Spread Account Amount to 4.0% of the Initial Invested Amount. If
an Event of Default described in subsection 5.01(a) or (b) has occurred and
is continuing, the Required Owner Trust Spread Account Amount, with respect
to any Transfer Date, shall automatically be increased to an amount equal to
the sum of (a) the amount on deposit in the Owner Trust Spread Account on
such Transfer Date plus (b) the Available Amount of such Transfer Date after
giving effect to the applications described in subsections 2.7(a)(i) through
(vi); provided, however, that, if upon the occurrence of an Event of Default
described in Section 5.1(a) of this Indenture the maturity of the Notes is
not accelerated pursuant to Section 5.2 of this Indenture, the increase in
the Required Owner Trust Spread Account Amount, for any Transfer Date, shall
be limited to an amount equal to the Class C Note Principal Balance.
SECTION 8.4. General Provisions Regarding Accounts.
(a) So long as the Notes have not been accelerated pursuant to Section 5.2,
all or a portion of the funds in the Owner Trust Spread Account shall be
invested in Permitted Investments and reinvested by the Indenture Trustee
upon Issuer Order (which Issuer Order may be upon direction of the
Administrator). All income or other gain (net of losses and investment
expenses) from investments of moneys deposited in the Owner Trust Spread
Account shall be applied, as directed by the Administrator by an Issuer
Order, (a) to the extent available, to pay the Class C Note Interest
Requirement and (b) to the extent of any remaining investment proceeds, to
increase the amount on deposit on the Owner Trust Spread Account. Such
Issuer Order shall not direct the Indenture Trustee to make any investment of
any funds or to sell any investment held in the Owner Trust Spread Account
unless the security interest granted and perfected in such account will
continue to be perfected in such investment or the proceeds of such sale,
and, in connection with any direction to the Indenture Trustee to make any
such investment or sale, if requested by the Indenture Trustee, the Issuer
shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to
the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall
not in any way be held liable by reason of any insufficiency in the Owner
Trust Spread Account resulting from any loss on any Permitted Investment
included therein except for losses attributable to the Indenture Trustee's
failure to make payments on such Permitted Investments issued by the
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Indenture Trustee, in its commercial capacity as principal obligor and not as
trustee, in accordance with their terms.
(c) If (i) the Administrator shall have failed to give
investment directions for any funds on deposit in the Owner Trust Spread
Account to the Indenture Trustee by 11:00 a.m. New York City time (or such
other time as may be agreed by the Administrator and the Indenture Trustee)
on any Business Day, or (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.2, or, if such Notes
shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Owner Trust Estate are being applied
in accordance with Section 5.5 as if there had not been such a declaration,
then the Indenture Trustee shall, to the fullest extent practicable, invest
and reinvest funds in the Owner Trust Spread Account in one or more Permitted
Investments. The Indenture Trustee shall not be liable for losses in respect
of such investments in Permitted Investments that comply with the
requirements of the Basic Documents except for losses attributable to the
Indenture Trustee's failure to make payments on such Permitted Investments
issued by the Indenture Trustee, in its commercial capacity as principal
obligor and not as trustee, in accordance with their terms.
SECTION 8.5. Release of Owner Trust Estate. (a) The
Indenture Trustee shall, when required by the provisions of this Indenture
shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a
manner and under circumstances that are not inconsistent with the provisions
of this Indenture. No party relying upon an instrument executed by the
Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are
no Notes Outstanding, release any remaining portion of the Owner Trust Estate
that secured the Notes from the lien of this Indenture and release to the
Issuer or any other Person entitled thereto any funds then on deposit in the
Note Distribution Account. The Indenture Trustee shall release property from
the lien of this Indenture pursuant to this Section 8.5(b) only upon receipt
of an Issuer Request accompanied by an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance
with TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.
SECTION 8.6. Opinion of Counsel. The Indenture Trustee
shall receive at least seven days' notice when requested by the Issuer to
take any action pursuant to Section 8.5(a), accompanied by copies of any
instruments involved, and the Indenture Trustee may also require as a
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condition of such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding
that all such action will not materially and adversely impair the security
for the Notes or the rights of the Noteholders; provided, however that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Owner Trust Estate. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in
connection with any such action.
SECTION 8.7. Treatment as Financial Assets. Each item of
property (whether investment property, financial asset, security, instrument
or cash) credited to the Owner Trust Accounts shall be treated as a financial
asset. The Owner Trust Accounts shall be governed by the law of the State of
New York and New York shall be the Securities Intermediary jurisdiction.
SECTION 8.8. Powers Coupled With an Interest. The rights
and powers granted in the Article 8 to the Indenture Trustee have been
granted in order to perfect its security interest in the Owner Trust Account,
are powers coupled with an interest and will be affected neither by the
bankruptcy or insolvency of the Issuer nor by the lapse of time.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders. Without the consent of the Holders of any Notes but with prior
notice to the Note Rating Agencies by the Issuer, when authorized by an
Issuer Request, the Issuer and the Indenture Trustee at any time and from
time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as in force
at the date of the execution thereof), in form satisfactory to the Indenture
Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or better to
assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture, or
to subject to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained;
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(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right or
power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not materially and
adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this Indenture
as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Issuer and the Indenture Trustee shall not enter into any indenture
supplemental hereto if such indenture would cause either (x) the Issuer or
the Master Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes or (y) a taxable event that could cause the beneficial owner of any
Outstanding Amount of Notes to recognize gain or loss for such purposes.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein contained.
SECTION 9.2. Supplemental Indentures with Consent of the
Noteholders. The Issuer and the Indenture Trustee, when authorized by the
Issuer, also may, with prior notice to the Note Rating Agencies and with the
consent of the Holders of a majority of the Outstanding Amount of the Notes,
by Act of such Holders delivered to the Issuer and the Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
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Holders of the Notes under this Indenture; provided that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the Note Rate thereon or the Redemption Price with respect
thereto, change the provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the
Owner Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency
in which, any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case
of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences
provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term " Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to sell or liquidate
the Owner Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or any of the other Basic Documents
cannot be modified or waived without the consent of the Holder of
each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Payment Date (including
the calculation of any of the individual components of such
calculation) or to affect the rights of the Holders of the Notes to
the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
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(vii) permit the creation of any Lien ranking prior to or
on a parity with the lien of this Indenture with respect to any part
of the Owner Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
The Indenture Trustee may determine whether any Notes would
be affected by any supplemental indenture and any such determination shall be
conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Indenture Trustee shall not be
liable for any such determination made in good faith. Any amendment, waiver
or modification consented to by the Noteholders shall not be effective unless
each of the Note Rating Agencies has provided confirmation to the Issuer and
the Indenture Trustee that such amendment, waiver or modification shall not
result in the reduction or removal of the rating of any Class of the Notes
affected by such amendment, waiver or modification.
It shall not be necessary for any Noteholders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Noteholders shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Holders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.3. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of the Indenture Trustee, the Issuer and
the Holders of the Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture and the Notes affected thereby for any and all purposes.
SECTION 9.4. Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall comply in all respects with the TIA.
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SECTION 9.5. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as
to any matter provided for in such supplemental indenture. If the Issuer or
the Indenture Trustee shall so require, new Notes so modified as to conform,
in the opinion of the Indenture Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
SECTION 9.6. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Indenture
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Indenture Trustee's own rights, duties or
immunities under this Indenture or otherwise.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption. The Notes are subject to
redemption in whole, but not in part, at the direction of the Depositor, on
any date on which the Series Certificate is retransferred to the Transferor
pursuant to Section 4 of the Series Supplement. The Issuer shall furnish
each Note Rating Agency notice of such redemption. If the Notes are to be
redeemed pursuant to this Section 10.1, the Issuer shall furnish notice of
such redemption to the Indenture Trustee no later than fifteen (15) Business
Days prior to the Redemption Date, and the Issuer shall, on the related
Transfer Date, deposit with the Indenture Trustee in the Note Distribution
Account the Redemption Price of the Notes to be redeemed whereupon all such
Notes shall be due and payable on the Redemption Date upon the furnishing of
a notice complying with Section 10.2 to each Holder of the Notes.
SECTION 10.2. Form of Redemption Notice. Notice of
redemption under Section 10.1 shall be given by the Indenture Trustee by
facsimile or by first-class mail, postage prepaid, transmitted or mailed
prior to the applicable Redemption Date to each Holder of the Notes, as of
the close of business on the Record Date preceding the applicable Redemption
Date, at such Holder's address appearing in the Note Register.
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All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Payment Date is not applicable and that payments shall be made only
upon presentation and surrender of such Notes and the place where
such Notes are to be surrendered for payment of the Redemption Price
(which shall be the office or agency to be maintained as provided in
Section 3.2);
(iv) that interest on the Notes shall cease to accrue on
the Redemption Date; and
(v) the applicable CUSIP numbers for such Notes.
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to
give notice of redemption, or any defect therein, to any Holder of any Notes
shall not impair or affect the validity of the redemption of any other Note.
SECTION 10.3. Notes Payable on Redemption Date. The Notes
to be redeemed shall, following notice of redemption as required by Section
10.2, on the Redemption Date become due and payable at the Redemption Price
and (unless the Issuer shall default in the payment of the Redemption Price)
no interest shall accrue on the Redemption Price for any period after the
date to which accrued interest is calculated for purposes of calculating the
Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee: (i) an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with, (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants or other
experts meeting the applicable requirements of this Section, except that, in
the case of any such application or request as to which the furnishing of
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such documents is specifically required by any provision of this Indenture,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether such covenant or condition has been complied
with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the lien of
this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of such
deposit) to the Issuer of the Collateral or other property or securities to
be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(i), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) and this
clause (ii), is 10% or more of the Outstanding Amount of the Notes,
but such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as
set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the Outstanding Amount of the Notes.
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(iii) Whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall also
furnish to the Indenture Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such certificate as to
the fair value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the opinion of
such person the proposed release will not impair the security under
this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii), the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of
the property or securities and of all other property, as set forth in
the certificates required by clause (iii) and this clause (iv),
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of the Series Certificate as and to the extent permitted or
required by the Basic Documents and (B) make cash payments out of the
Owner Trust Accounts as and to the extent permitted or required by
the Basic Documents.
SECTION 11.2. Form of Documents Delivered to the Indenture
Trustee. In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate
or opinion is based are erroneous. Any such certificate of an Authorized
Officer or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
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or officers of the Administrator, the Depositor or the Issuer, stating that
the information with respect to such factual matters is in the possession of
the Administrator, the Depositor or the Issuer, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever in this Indenture, in connection with any
application, certificate or report to the Indenture Trustee, it is provided
that the Issuer shall deliver any document (x) as a condition of the granting
of such application, or (y) as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in such
document shall in each case be conditions precedent to the right of the
Issuer to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to
affect the Indenture Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in
Article VI.
SECTION 11.3. Actions of Noteholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by the Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by an 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
Indenture Trustee and, when required, to the Issuer or the Administrator.
Such instrument or instruments (and the action or actions embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Indenture
Trustee, the Issuer and the Administrator, if made in the manner provided in
this Section 11.3.
(b) The fact and date of the execution by any Noteholder of
any such instrument or writing may be proved in any reasonable manner which
the Indenture Trustee deems sufficient.
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(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Noteholder shall bind every Holder of every
Note 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 Indenture Trustee, the Issuer or the Administrator in reliance thereon,
regardless of whether notation of such action is made upon such Note.
(d) The Indenture Trustee may require such additional proof
of any matter referred to in this Section 11.3 as it shall deem necessary.
SECTION 11.4. Notices, etc., to the Indenture Trustee, the
Issuer, and Note Rating Agencies. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or other documents
provided or permitted by this Indenture to be made upon, given or furnished
to or filed with:
(a) The Indenture Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if personally
delivered, telefaxed or mailed certified mail, return receipt requested and
shall be deemed to have been duly given upon receipt by a Responsible Officer
of the Indenture Trustee at its Corporate Trust Office, or
(b) The Issuer by the Indenture Trustee or any Noteholder
shall be sufficient for every purpose hereunder if personally delivered or
mailed certified mail, return receipt to the Issuer addressed to: Chase
Credit Card Owner Trust 1999-3, in care of Wilmington Trust Company, not in
its individual capacity but solely as Owner Trustee for the Chase Credit Card
Owner Trust 1999-3, at Rodney Square North, 1100 North Market Street,
Wilmington, DE 19890-0001, Attention: Corporate Trust Administration or at
any other address previously furnished in writing to the Indenture Trustee by
the Issuer. The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Indenture Trustee.
Notices required to be given to the Note Rating Agencies by
the Issuer, the Indenture Trustee or the Owner Trustee shall be in writing,
personally delivered or mailed certified mail, return receipt requested to
(i) in the case of Moody's, at the following address: Moody's Investors
Service, 99 Church Street, New York, New York 10007, Attention: ABS
Monitoring Group, (ii) in the case of Standard & Poor's, at the following
address: Standard & Poor's Ratings Services, 55 Water Street, New York, New
York 10041, Attention: Asset Backed Surveillance Department and (iii) in the
case of Fitch, at the following address: Fitch IBCA, Inc., One State Street
Plaza, New York, New York 10004; or as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
SECTION 11.5. Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall
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be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by such event, at his address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in any notice
so mailed to any particular Noteholder shall affect the sufficiency of such
notice with respect to other Noteholders, and any notice that is mailed in
the manner herein provided shall conclusively be presumed to have been duly
given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed
with the Indenture Trustee but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to the Noteholders when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Note Rating
Agencies, failure to give such notice shall not affect any other right or
obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder that is different from the methods provided for
in this Indenture for such payments or notices, provided that such methods
are reasonable and consented to by the Indenture Trustee (which consent shall
not be unreasonably withheld). The Issuer will furnish to the Indenture
Trustee a copy of each such agreement, and the Indenture Trustee will cause
payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions of
the TIA, such required provision shall control.
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The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9. Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns. All agreements of the Indenture Trustee in this
Indenture shall bind its successors.
SECTION 11.10. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not
be affected or impaired thereby.
SECTION 11.11. Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and (only to
the extent expressly provided herein) the Noteholders, and any other party
secured hereunder, and any other person with an ownership interest in any
part of the Owner Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case where the date
on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this Indenture) payment
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
SECTION 11.13. GOVERNING LAW. THIS INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 11.14. Counterparts. This Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 11.15. Recording of Indenture. If this Indenture
is subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by
an Opinion of Counsel (which may be counsel to the Indenture Trustee or any
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other counsel reasonably acceptable to the Indenture Trustee) to the effect
that such recording is necessary either for the protection of the Noteholders
or any other person secured hereunder or for the enforcement of any right or
remedy granted to the Indenture Trustee under this Indenture or to satisfy
any provision of the TIA.
SECTION 11.16. Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under this Indenture
or any certificate or other writing delivered in connection herewith or
therewith, against (i) the Depositor, the Administrator, the Transferor, the
Servicer, the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or
the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the
Owner Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the performance
of any duties or obligations of the Issuer hereunder, the Owner Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
Articles IV, V, VI and VII of the Trust Agreement.
SECTION 11.17. No Petition. Notwithstanding any prior
termination of this Indenture, the Indenture Trustee and each Noteholder or
Note Owner, by its acceptance of a Note or beneficial interest in a Note, as
the case may be, hereby covenants that (a) they, shall not at any time with
respect to the Issuer or the Master Trust, acquiesce, petition or otherwise
invoke or cause the Issuer or the Master Trust to invoke the process of any
court or government authority for the purpose of commencing or sustaining a
case against the Issuer or the Master Trust under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, conservator,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Issuer or the Master Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Issuer or the Master Trust, (b) any claim that they may have at any time
against the corpus of the Master Trust that they may seek to enforce against
the corpus of the Master Trust, shall be subordinate to the payment in full,
including post-petition interest, in the event that the Master Trust becomes
a debtor or debtor in possession in a case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect
or otherwise subject to any insolvency, reorganization, liquidation,
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rehabilitation or other similar proceedings, of the claims of the holders of
any securities of the Master Trust and the holders of any other notes, bonds,
contracts or other obligations that are related to the Master Trust and (c)
they hereby irrevocably make the election afforded by Title 11 United States
Code Section 1111(b)(1)(A)(i) to secured creditors to receive the treatment
afforded by Title 11 United State Code Section 1111(b)(2) with respect to any
secured claim that they may have at any time against the Issuer or the Master
Trust.
SECTION 11.18. Inspection. The Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books
of account, records, reports, and other papers of the Issuer, to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees and Independent certified
public accountants, all at such reasonable times and as often as may be
reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the
extent disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its Obligations hereunder.
SECTION 11.19. Tax Treatment. The Issuer intends that the
Notes will be treated as debt of the Certificateholder for all United States
tax purposes. Each Noteholder, by acceptance of its Note, and each holder of
a beneficial interest in a Note, by the acquisition of a beneficial interest
therein, agree to treat the Notes as indebtedness of the Certificateholder
for all United States tax purposes.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee
have caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
WILMINGTON TRUST COMPANY
not in its individual capacity but solely
as Owner Trustee for Chase Credit Card
Owner Trust 1999-3
By:___________________________________
Name:
Title:
THE BANK OF NEW YORK
solely in its capacities as Indenture
Trustee and Securities Intermediary
By:___________________________________
Name:
Title:
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EXHIBIT A
---------
FORM OF CLASS A NOTES
REGISTERED $__________<F3>
No. R-_____ CUSIP NO. 16151RAA1
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE CREDIT CARD OWNER TRUST 1999-3
CLASS A 6.66% ASSET BACKED NOTES
Chase Credit Card Owner Trust 1999-3, a common law trust
organized and existing under the laws of the State of Delaware (including any
successor, the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or its registered assigns, the principal sum of ______ DOLLARS
($________), partially payable on each applicable Payment Date in an amount
equal to the result obtained by multiplying (i) a fraction, the numerator of
which is $__________ and the denominator of which is $___________ by (ii) the
aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the Class A Notes pursuant to Section 3.1 of the
Indenture on such Payment Date; provided that the entire unpaid principal
amount of this Note shall be due and payable on the January 2007 Payment Date
(which is January 15, 2007). The Issuer will pay interest on this Note at
the rate per annum shown above, on each Payment Date until the principal of
this Note is paid or made available for payment, on the principal amount of
this Note outstanding on the preceding Payment Date (after giving effect to
all payments of principal made on the preceding Payment Date), subject to
certain limitations contained in Sections 2.7, 3.1 and 8.2 of the Indenture.
Interest on this Note will accrue for each Payment Date from the most recent
Payment Date on which interest has been paid to but excluding the then
current Payment Date or, if no interest has yet been paid, from September 29,
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1999. Interest will be computed on the basis of a 360-day year of twelve 30-
day months (which is 46 days in the case of the Monthly Period preceding the
November 15, 1999 Payment Date). Such principal of and interest on this Note
shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied first
to interest due and payable on this Note as provided above and then to the
unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Dated: __________, ____
CHASE CREDIT CARD OWNER TRUST 1999-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:__________________________________
Name:
Title:
-94-
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within mentioned Indenture.
Dated: ________ __, _____
THE BANK OF NEW YORK
not in its individual capacity but solely
as Indenture Trustee
By:_________________________________
Authorized Signatory
-95-
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A 6.66% Asset Backed Notes (herein called the
"Class A Notes" or the "Notes"), all issued under an Indenture dated as of
September 29, 1999, (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and The Bank of New York, not in
its individual capacity but solely as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture) and as securities intermediary, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of
the Indenture. All terms used in this Note that are not otherwise defined
herein and that are defined in the Indenture shall have the meanings assigned
to them in or pursuant to the Indenture.
The Class A Notes, the Class B Notes and the Class C Notes
are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any holder of a beneficial interest
in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Depositor, the Administrator, the
Issuer, the Noteholders and the Note Owners, that the Notes will be
classified as indebtedness of the Issuer for all United States tax purposes.
-96-
<PAGE>
The Noteholders, by acceptance of a Note, agree to treat, and to take no
action inconsistent with the treatment of, the Notes as indebtedness of the
Issuer for such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that they will not at any time institute against the Issuer, or join
in any institution against the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any
of the other Basic Documents.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither Wilmington Trust Company
in its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Issuer for the sole purpose of binding
the interests of the Owner Trustee in the assets of the Issuer. The Holder
of this Note by the acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
-97-
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_____________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
_____________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ___________________, attorney, to transfer said Note on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated:__________________ _____________________________________<F4>
Signature Guaranteed:
-98-
<PAGE>
EXHIBIT B
---------
FORM OF CLASS B NOTES
REGISTERED $___________<F5>
No. R-_____ CUSIP NO. 16151RAB9
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE CREDIT CARD OWNER TRUST 1999-3
CLASS B 6.95% ASSET BACKED NOTES
Chase Credit Card Owner Trust 1999-3, a common law trust
organized and existing under the laws of the State of Delaware (including any
successor, the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or its registered assigns, the principal sum of ___________ DOLLARS
($_________), partially payable on each applicable Payment Date in an amount
equal to the result obtained by multiplying (i) a fraction, the numerator of
which is $________ and the denominator of which is $________ by the (ii) the
aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the Class B Notes pursuant to Section 3.1 of the
Indenture on such Payment Date; provided that the entire unpaid principal
amount of this Note shall be due and payable on the January 2007 Payment Date
(which is January 15, 2007). No payments of principal of the Class B Notes
will be made until the principal of the Class A Notes has been paid in full.
The Issuer will pay interest on this Note at the rate per annum shown above,
on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained
in Sections 2.7, 3.1 and 8.2 of the Indenture. Interest on this Note will
accrue for each Payment Date from the most recent Payment Date on which
interest has been paid to but excluding the then current Payment Date or, if
-99-
<PAGE>
no interest has yet been paid, from September 29, 1999. Interest will be
computed on the basis of a 360-day year of twelve 30-day months (which is 46
days in the case of the Monthly Period preceding the November 15, 1999
Payment Date). Such principal of and interest on this Note shall be paid in
the manner specified in the Indenture.
The principal of and interest on this Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied first
to interest due and payable on this Note as provided above and then to the
unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Dated: ________ __, ____
CHASE CREDIT CARD OWNER TRUST 1999-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:___________________________________
Name:
Title:
-100-
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Dated: ________ __, _____
THE BANK OF NEW YORK
not in its individual capacity but solely
as Indenture Trustee
By:_________________________________
Authorized Signatory
-101-
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class B 6.95% Rate Asset Backed Notes (herein
called the "Class B Notes" or the "Notes"), all issued under an Indenture
dated as of September 29, 1999 (such Indenture, as supplemented or amended,
is herein called the "Indenture"), between the Issuer and The Bank of New
York, not in its individual capacity but solely as trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture) and as securities intermediary, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of
the Indenture. All terms used in this Note that are not otherwise defined
herein and that are defined in the Indenture shall have the meanings assigned
to them in or pursuant to the Indenture.
The Class B Notes, and the Class A Notes and Class C Notes
are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class B Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any holder of a beneficial interest
in the Issuer, the Indenture Trustee or the Owner Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Depositor, the Administrator, the
Noteholders, the Note Owners the Issuer, the Noteholders and Chase USA that
the Notes will be classified as indebtedness of the Issuer for all United
-102-
<PAGE>
States tax purposes. The Noteholders, by acceptance of a Note, agree to
treat, and to take no action inconsistent with the treatment of, the Notes as
indebtedness of the Issuer for such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that they will not at any time institute against the Issuer, or join
in any institution against the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any
of the other Basic Documents.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither Wilmington Trust Company
in its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Issuer for the sole purpose of binding
the interests of the Owner Trustee in the assets of the Issuer. The Holder
of this Note by the acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
-103-
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_____________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
_____________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:______________________ _____________________________________<F6>
Signature Guaranteed:
_________________________________________
-104-
<PAGE>
EXHIBIT C
---------
FORM OF CLASS C NOTES
REGISTERED $__________<F7>
No. R-_____ CUSIP NO. 16151RAC7
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE CREDIT CARD OWNER TRUST 1999-3
CLASS C FLOATING RATE ASSET BACKED NOTES
Chase Credit Card Owner Trust 1999-3, a common law trust
organized and existing under the laws of the State of Delaware (including any
successor, the "Issuer"), for value received, hereby promises to pay to CEDE
& CO., or its registered assigns, the principal sum of _____________ DOLLARS
($________), partially payable on each applicable Payment Date in an amount
equal to the result obtained by multiplying (i) a fraction, the numerator of
which is $________ and the denominator of which is $________ by the (ii) the
aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the Class C Notes pursuant to Section 3.1 of the
Indenture on such Payment Date; provided that the entire unpaid principal
amount of this Note shall be due and payable on the January 2007 Payment Date
(which is January 15, 2007). No payments of principal of the Class C Notes
will be made until the principal of the Class A Notes and the Class B Notes
have been paid in full. The Issuer will pay interest on this Note at the
rate per annum described in the Indenture, on each Payment Date until the
principal of this Note is paid or made available for payment, on the
principal amount of this Note outstanding on the preceding Payment Date
(after giving effect to all payments of principal made on the preceding
Payment Date), subject to certain limitations contained in Sections 2.7, 3.1
and 8.2 of the Indenture. Interest on this Note will accrue for each Payment
Date from the most recent Payment Date on which interest has been paid to but
-105-
<PAGE>
excluding the then current Payment Date or, if no interest has yet been paid,
from September 29, 1999. Interest will be computed on the basis of the
actual number of days elapsed in a 360-day year (which is 47 days in the case
of the Monthly Period preceding the November 15, 1999 Payment Date). Such
principal of and interest on this Note shall be paid in the manner specified
in the Indenture.
The principal of and interest on this Note are payable in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied first
to interest due and payable on this Note as provided above and then to the
unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Dated: ____________ __, ____
CHASE CREDIT CARD OWNER TRUST 1999-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:_________________________________
Name:
Title:
-106-
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Dated: ________ __, ____
THE BANK OF NEW YORK
not in its individual capacity but solely
as Indenture Trustee
By:_________________________________
Authorized Signatory
-107-
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class C Floating Rate Asset Backed Notes (herein
called the "Class C Notes" or the "Notes"), all issued under an Indenture
dated as of September 29, 1999 (such Indenture, as supplemented or amended,
is herein called the "Indenture"), between the Issuer and The Bank of New
York, not in its individual capacity but solely as trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture) and as securities intermediary, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of
the Indenture. All terms used in this Note that are not otherwise defined
herein and that are defined in the Indenture shall have the meanings assigned
to them in or pursuant to the Indenture.
The Class C Notes, the Class A Notes and the Class B Notes
are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class C Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any holder of a beneficial interest
in the Issuer, the Indenture Trustee or the Owner Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Depositor, the Noteholders, the Note
Owners, the Issuer, the Noteholders and Chase USA that, the Notes will be
classified as indebtedness of the Issuer for all United States tax purposes.
-108-
<PAGE>
The Noteholders, by acceptance of a Note, agree to treat, and to take no
action inconsistent with the treatment of, the Notes as indebtedness of the
Issuer for such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that they will not at any time institute against the Issuer, or join
in any institution against the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, the Indenture or any
of the other Basic Documents.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither Wilmington Trust Company,
in its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Issuer for the sole purpose of binding
the interests of the Owner Trustee in the assets of the Issuer. The Holder
of this Note by the acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided that nothing contained
herein shall be taken to prevent recourse to, and enforcement against, the
assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
-109-
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_____________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
_____________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution
in the premises.
Dated: ______________________ ________________________________<F8>
Signature Guaranteed:
____________________________________
-110-
<PAGE>
EXHIBIT D
NOTE DEPOSITORY AGREEMENT
-111-
<PAGE>
ENDNOTES
--------
<F1> Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
<F2> N.A. means Not Applicable.
<F3> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
<F4> NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular without alteration, enlargement or any change
whatsoever.
<F5> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
<F6> NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular without alteration, enlargement or any change
whatsoever.
<F7> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
<F8> NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular without alteration, enlargement or any change
whatsoever.
-112-
Exhibit 4.10
CHASE CREDIT CARD OWNER TRUST 1999-3
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of September 29, 1999
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms . . . . . . . . . . . . . . . . . 1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2. Office . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3. Purposes and Powers . . . . . . . . . . . . . . . . 3
SECTION 2.4. Appointment of Owner Trustee . . . . . . . . . . . . 4
SECTION 2.5. Initial Capital Contribution of Trust Estate . . . . 4
SECTION 2.6. Declaration of Trust . . . . . . . . . . . . . . . . 4
SECTION 2.7. Title to Owner Trust Property . . . . . . . . . . . 5
SECTION 2.8. Situs of Owner Trust . . . . . . . . . . . . . . . . 5
SECTION 2.9. Representations and Warranties of the Depositor . . 5
SECTION 2.10. Liability of Certificateholder . . . . . . . . . . . 6
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership . . . . . . . . . . . . . . . . . 6
SECTION 3.2. The Certificate . . . . . . . . . . . . . . . . . . 6
SECTION 3.3. Execution, Authentication and Delivery of
Certificates . . . . . . . . . . . . . . . . . . . 7
SECTION 3.4. Restrictions on Transfer . . . . . . . . . . . . . . 7
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate . . 7
SECTION 3.6. Authenticating Agent . . . . . . . . . . . . . . . . 8
SECTION 3.7. Actions of Certificateholder . . . . . . . . . . . . 9
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to
Certain Matters . . . . . . . . . . . . . . . . . 10
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ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority . . . . . . . . . . . . . . . . . 10
SECTION 5.2. General Duties . . . . . . . . . . . . . . . . . . . 11
SECTION 5.3. Action upon Instruction . . . . . . . . . . . . . . 11
SECTION 5.4. No Duties Except as Specified in this Agreement
or in Instructions . . . . . . . . . . . . . . . . 12
SECTION 5.5. No Action Except under Specified Documents or
Instructions . . . . . . . . . . . . . . . . . . . 12
SECTION 5.6. Restrictions . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.7. Doing Business in Other Jurisdictions . . . . . . . 13
ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties . . . . . . . . . . 13
SECTION 6.2. Furnishing of Documents . . . . . . . . . . . . . . 15
SECTION 6.3. Representations and Warranties . . . . . . . . . . . 15
SECTION 6.4. Reliance; Advice of Counsel . . . . . . . . . . . . 16
SECTION 6.5. Not Acting in Individual Capacity . . . . . . . . . 17
SECTION 6.6. Owner Trustee May Own Notes . . . . . . . . . . . . 17
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses . . . . . . . . . 17
SECTION 7.2. Indemnification . . . . . . . . . . . . . . . . . . 17
SECTION 7.3. Payments to Owner Trustee . . . . . . . . . . . . . 18
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement . . . . . . . . . . . 18
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee . . . . . 19
SECTION 9.2. Resignation or Removal of Owner Trustee . . . . . . 19
SECTION 9.3. Successor Owner Trustee . . . . . . . . . . . . . . 20
SECTION 9.4. Merger or Consolidation of Owner Trustee . . . . . . 21
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee . . . 21
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ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments . . . . . . . . . . . . 23
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder . . . . . . . . . . . . . . . . 24
SECTION 10.3. Limitations on Rights of Others . . . . . . . . . . 24
SECTION 10.4. Notices . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 10.5. Severability . . . . . . . . . . . . . . . . . . . 24
SECTION 10.6. Separate Counterparts . . . . . . . . . . . . . . . 24
SECTION 10.7. Successors and Assigns . . . . . . . . . . . . . . 25
SECTION 10.8. Nonpetition Covenants . . . . . . . . . . . . . . . 25
SECTION 10.9. No Recourse . . . . . . . . . . . . . . . . . . . . 25
SECTION 10.10. Headings . . . . . . . . . . . . . . . . . . . . . 25
SECTION 10.11. GOVERNING LAW . . . . . . . . . . . . . . . . . . . 25
SECTION 10.12. Depositor Payment Obligation . . . . . . . . . . . 25
SECTION 10.13. Acceptance of Terms of Agreement . . . . . . . . . 26
SECTION 10.14. Integration of Documents . . . . . . . . . . . . . 26
EXHIBITS
Exhibit A - Form of Certificate
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TRUST AGREEMENT dated as of September 29, 1999 between CHASE
MANHATTAN BANK USA, NATIONAL ASSOCIATION ("Chase USA"), a national banking
association having its principal executive offices located at 802 Delaware
Avenue, Wilmington, Delaware 19801, as the depositor (in its capacity as the
depositor, the "Depositor") and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as the owner trustee (the "Owner Trustee").
ARTICLE I. DEFINITIONS
SECTION 1.1. Capitalized Terms. (a) For all purposes of
this Agreement, the following terms shall have the meanings set forth below:
"Administrator" means Chase Manhattan Bank USA, National Association,
or any successor Administrator under the Deposit and Administration
Agreement.
"Agreement" means this Chase Credit Card Owner Trust 1999-3 Trust
Agreement, as the same may be amended, modified or otherwise supplemented
from time to time.
"Basic Documents" means the Indenture, this Agreement, the Deposit
and Administration Agreement, the Note Underwriting Agreement and other
documents delivered in connection herewith and therewith.
"Certificate" means the certificate evidencing the beneficial
interest of the Certificateholder in the Owner Trust, substantially in the
form attached hereto as Exhibit A.
"Certificateholder" means Chase Manhattan Bank USA, National
Association, and its successors and permitted assigns.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at Rodney
Square North, 1100 North Market Street, Wilmington, DE 19801; or such other
address as the Owner Trustee may designate by notice to the Depositor, or the
principal corporate trust office of any successor Owner Trustee (the address
of which the successor Owner Trustee will notify the Certificateholder and
the Depositor).
"Deposit and Administration Agreement" means the Deposit and
Administration Agreement, dated as of September 29, 1999, between the Owner
Trustee, on behalf of the Owner Trust, and Chase Manhattan Bank USA, National
Association, as Depositor and as Administrator, as the same may be amended,
supplemented or otherwise modified from time to time.
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"Depositor" means Chase Manhattan Bank USA, National Association, in
its capacity as Depositor hereunder and its successors and assigns in such
capacity.
"Expenses" has the meaning assigned to such term in Section 7.2.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2.
"Indenture Trustee" means The Bank of New York, not in its individual
capacity but solely as Indenture Trustee under the Indenture, and any
successor Indenture Trustee under the Indenture.
"Owner Trust" means the trust created by this Agreement.
"Owner Trust Estate" means all right, title and interest of the Owner
Trustee in and to the property and rights assigned to the Owner Trustee
pursuant to Section 2.5 of this Agreement and Section 2.1 of the Deposit and
Administration Agreement, all monies, securities, instruments and other
property on deposit from time to time in the accounts established hereunder
and all other property of the Owner Trust from time to time, including any
rights of the Owner Trustee on behalf of the Owner Trust pursuant to the
Deposit and Administration Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee for
the Chase Credit Card Owner Trust 1999-3 under this Agreement (unless
otherwise specified herein), and any successor Owner Trustee hereunder.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulations, or determination of an arbitrator or Governmental Authority, in
each case applicable to or binding upon such Person or to which such Person
is subject, whether federal, state or local (including without limitation,
usury laws, the federal Truth in Lending Act and Regulation Z and Regulation
B of the Board of Governors of the Federal Reserve System).
"Secretary of State" means the Secretary of State of the State of
Delaware.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
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not defined in this Agreement or in any such certificate or other document,
and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with
the meanings of such terms under generally accepted accounting principles,
the definitions contained in this Agreement or in any such certificate or
other document shall control.
(d) The words "hereof," "herein," "hereunder," and words
of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement; Section and
Exhibit references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
ARTICLE II. ORGANIZATION
SECTION 2.1. Name. The trust created hereby shall be
referred to for convenience as "Chase Credit Card Owner Trust 1999-3"
(hereinafter, the "Owner Trust"). The Owner Trust shall not be a "business
trust" as defined in 12 Del.C. 3801.
SECTION 2.2. Office. The office of the Owner Trust shall
be in care of the Owner Trustee at the Corporate Trust Office or at such
other address as the Owner Trustee may designate by written notice to the
Certificateholder and the Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the
Owner Trust is, and the Owner Trustee shall have the power and authority, on
behalf of the Owner Trust to engage in the following activities:
(a) to issue the Notes in the name of the Owner Trust
pursuant to the Indenture and the Certificate pursuant to this Agreement, and
to sell, transfer or exchange the Notes and the Certificate;
(b) to acquire the property and assets set forth in the
Deposit and Administration Agreement from the Depositor pursuant to the terms
thereof, to make payments or distributions on the Notes and the Certificate,
to make deposits to and withdrawals from the Reserve Account and other
accounts established under the Indenture;
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(c) to assign, grant, transfer, pledge, mortgage and
convey the Owner Trust Estate pursuant to the Indenture and to hold, manage
and distribute to the Certificateholder pursuant to the terms of the Deposit
and Administration Agreement any portion of the Owner Trust Estate released
from the Lien of, and remitted to the Owner Trust pursuant to, the Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to which it is a party;
(e) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions to the
Certificateholder and the Noteholders.
The Owner Trustee, on behalf of the Owner Trust, is hereby authorized to
engage in the foregoing activities. Neither the Owner Trustee, nor the Owner
Trust, shall engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Owner Trust effective as
of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION 2.5. Initial Capital Contribution of Trust
Estate. The Depositor hereby sells, assigns, transfers, conveys and sets
over to the Owner Trustee, as of the date hereof, $1.00. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Owner Trust Estate. The Depositor shall pay the organizational expenses of
the Owner Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by
the Owner Trustee.
SECTION 2.6. Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the use and benefit of the
Certificateholder, subject to the obligations of the Owner Trustee, on behalf
of the Owner Trust, under the Basic Documents. It is the intention of the
parties hereto that the Owner Trust constitute a common law trust duly formed
in accordance with the laws of the State of Delaware and that this Agreement
constitutes the governing instrument of such trust. It is the intention of
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the parties hereto that, solely for United States income and franchise tax
purposes, the Owner Trust shall be treated as a division or branch of the
Depositor. The parties agree that, unless otherwise required by appropriate
tax authorities, they will take no action contrary to the foregoing
intention. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein with respect to accomplishing the
purposes of the Owner Trust.
SECTION 2.7. Title to Owner Trust Property. Legal title
to all the Owner Trust Estate shall be vested at all times in the Owner
Trustee, on behalf of the Owner Trust, except where applicable law in any
jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a co-trustee or a separate trustee, in which case title to such
part shall be deemed to be vested in the co-trustee and/or separate trustee,
as the case may be.
SECTION 2.8. Situs of Owner Trust. The Owner Trust will
be located and administered in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Owner Trust shall be located
in the State of Delaware or the State of New York. Payments will be received
by the Owner Trust only in Delaware or New York, and payments and
distributions will be made by the Owner Trust only from Delaware or New York.
The only office of the Owner Trust will be at the Corporate Trust Office of
the Owner Trustee in Delaware.
SECTION 2.9. Representations and Warranties of the
Depositor. The Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Depositor has been duly organized and is validly
existing as a national banking association in good standing under the
laws of the United States of America, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is presently conducted.
(ii) The Depositor has the corporate power and authority
to execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Owner
Trustee, on behalf of the Owner Trust, and the Depositor has duly
authorized such sale and assignment and deposit to the Owner Trustee,
on behalf of the Owner Trust, by all necessary action; and the
execution, delivery and performance of this Agreement has been duly
authorized by the Depositor by all necessary action.
(iii) The consummation of the transactions contemplated
by this Agreement and the other Basic Documents and the fulfillment
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of the terms hereof, do not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without
notice or lapse of time) a default under, the articles of association
or bylaws of the Depositor, or conflict with or breach any of the
material terms or provisions of or constitute (with or without notice
or lapse of time) a default under any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound;
nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument; nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to
the Depositor of any court or of any Federal or state regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(iv) There are no proceedings or investigations pending
or, to the best knowledge of the Depositor, threatened against the
Depositor before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality having jurisdiction
over the Depositor (i) asserting the invalidity of any of the Basic
Documents to which the Depositor is a party, (ii) seeking to prevent
the consummation of any of the transactions contemplated by any of
the Basic Documents, to which the Depositor is a party, (iii) seeking
any determination or ruling that, in the reasonable judgment of the
Depositor, would materially and adversely affect the performance by
the Depositor of its obligations under the Basic Documents to which
the Depositor is a party, or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or
enforceability of the Basic Documents to which the Depositor is a
party.
SECTION 2.10. Liability of Certificateholder. The
Certificateholder shall not have any personal liability for any liability or
obligation of the Owner Trustee or the Owner Trust.
ARTICLE III. CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of
the Owner Trust by the contribution by the Depositor pursuant to Section 2.5,
the Depositor shall be the sole beneficiary of the Owner Trust.
SECTION 3.2. The Certificate. (a) The Certificate shall
be issued substantially in the form of Exhibit A, which is incorporated by
reference herein. The Certificate shall be executed on behalf of the Owner
Trust by manual or facsimile signature of an Authorized Officer or other
authorized signatory of the Owner Trustee. A Certificate bearing the manual
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or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Owner
Trust, shall be validly issued and entitled to the benefit of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so authorized prior to the authentication and delivery of such Certificate or
did not hold such offices at the date of authentication and delivery of such
Certificate. The Certificate shall not entitle its Holder to any benefit
under this Agreement, or be valid for any purpose, unless there shall appear
on such Certificate a certificate of authentication substantially in the form
set forth in Exhibit A, executed by the Owner Trustee, or the Owner Trustee's
authentication agent, by manual or facsimile signature; such authentication
shall constitute conclusive evidence that such Certificate shall have been
duly authenticated and delivered hereunder. The Certificate shall be dated
the date of its authentication.
(b) The Certificateholder shall be entitled to receive
distributions from the Owner Trust Estate only in accordance with this
Agreement and the Deposit and Administration Agreement. In no event shall
the Depositor or the Certificateholder be entitled to possession of, or be
permitted to encumber any part of, the Owner Trust Estate.
SECTION 3.3. Execution, Authentication and Delivery of
Certificates. Concurrently with the initial deposit of the Series
Certificate with the Owner Trustee, on behalf of the Owner Trust, pursuant to
the Deposit and Administration Agreement, the Owner Trustee shall cause the
Certificate to be executed on behalf of the Owner Trust, authenticated and
delivered to or upon the written order of the Depositor, signed by its
chairman of the board, its president or any vice president, without further
action by the Depositor.
SECTION 3.4. Restrictions on Transfer. To the fullest
extent permitted by applicable law, the Certificate (or any interest therein)
may not be sold, transferred, assigned, participated, pledged or otherwise
disposed of by the Depositor to any Person.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificate. If (a) the mutilated Certificate shall be surrendered to the
Owner Trustee, or if the Owner Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of the Certificate and (b)
there shall be delivered to the Owner Trustee such security or indemnity as
may be required by it to save it harmless, then the Owner Trustee shall
execute and the Owner Trustee, or the Owner Trustee's authenticating agent,
shall authenticate and deliver, in exchange for or in lieu of the mutilated,
destroyed, lost or stolen Certificate, a new Certificate. In connection with
the issuance of any new Certificate under this Section 3.5, the Owner Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
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duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Owner Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. The provisions of this Section 3.5 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of the mutilated, destroyed, lost or stolen
Certificate.
SECTION 3.6. Authenticating Agent. (a) The Owner
Trustee may appoint one or more authenticating agents with respect to the
Certificate which shall be authorized to act on behalf of the Owner Trustee
in authenticating the Certificate in connection with the issuance, delivery,
registration of transfer, exchange or repayment of the Certificate. Whenever
reference is made in this Agreement to the authentication of the Certificate
by the Owner Trustee or the Owner Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Owner Trustee by an authenticating agent and a certificate of authentication
executed on behalf of the Owner Trustee by an authenticating agent. Each
authenticating agent shall be subject to acceptance by the Depositor.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating
agent without the execution or filing of any paper or any further act on the
part of the Owner Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Owner Trustee and the Depositor.
The Owner Trustee may at any time terminate the agency of an authenticating
agent by giving notice of termination to such authenticating agent and to the
Depositor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
acceptable to the Owner Trustee or the Depositor, the Owner Trustee promptly
may appoint a successor authenticating agent with the consent of the
Depositor. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an authenticating agent.
(d) The Depositor shall pay the authenticating agent
from time to time reasonable compensation for its services under this Section
3.6.
(e) The provisions of Sections 6.1, 6.3, 6.4, 6.6, 7.1
and 7.2 shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
3.6, the Certificate may have endorsed thereon, in lieu of the Owner
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Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is the Certificate referred to in the within-mentioned Trust
Agreement.
or
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
not in its individual capacity not in its individual capacity
but solely as Owner Trustee for the Chase but solely as Owner Trustee for the
Credit Card Owner Trust 1999-3 Chase Credit Card Owner Trust 1999-3
By: ______________________________
Authenticating Agent
By: __________________________ By: ______________________________
Authorized Signatory Authorized Signatory
SECTION 3.7. Actions of Certificateholder. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the
Certificateholder may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by the Certificateholder in person or
by agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Owner Trustee and, when required, to the
Depositor or the Servicer. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Owner Trustee, the Depositor and the
Servicer, if made in the manner provided in this Section 3.7.
(b) The fact and date of the execution by the
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Owner Trustee deems sufficient.
(c) The Owner Trustee may require such additional proof
of any matter referred to in this Section 3.7 as it shall deem necessary.
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ARTICLE IV. ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with
Respect to Certain Matters. With respect to the following matters, the Owner
Trustee shall not take action unless at least 30 days before the taking of
such action, the Owner Trustee shall have notified the Certificateholder in
writing of the proposed action:
(a) the initiation of any claim or lawsuit on behalf of
the Owner Trust (except claims or lawsuits brought to collect on the Series
Certificate) and the compromise of any material action, claim or lawsuit
brought by or against the Owner Trust or the Owner Trustee (except with
respect to the aforementioned claims or lawsuits to collect on the Series
Certificate);
(b) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest of the
Certificateholder;
(d) the amendment, change or modification of the Deposit
and Administration Agreement, except any amendment where the consent of the
Certificateholder is not required under the terms of the Deposit and
Administration Agreement; or
(e) the appointment pursuant to the Indenture of a
successor Indenture Trustee or the consent to the assignment by the Note
Registrar, the Paying Agent, the Indenture Trustee or the Certificate
Registrar of its obligations under the Indenture.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Paying Agent, Authenticating Agent or Certificate
Registrar within five Business Days thereof.
ARTICLE V. AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Basic Documents to which
the Owner Trustee, on behalf of the Owner Trust, is to be a party and each
certificate or other document required to be executed on behalf of the Owner
Trust that is attached as an exhibit to or contemplated by the Basic
Documents or any amendment thereto or other agreement, in each case, in such
form as the Depositor shall approve as evidenced conclusively by the Owner
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Trustee's execution thereof and the Depositor's execution of the related
documents. In addition to the foregoing, the Owner Trustee is authorized,
but shall not be obligated, to take all actions required to be taken on
behalf of the Owner Trust pursuant to the Basic Documents. The Owner Trustee
is further authorized from time to time to take such action as the
Administrator directs in writing with respect to the Basic Documents, except
to extent that the Basic Documents expressly require the consent of the
Depositor for such action.
SECTION 5.2. General Duties. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the other Basic
Documents and to administer the Owner Trust in the interest of the
Certificateholder, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the Basic Documents to the extent the Administrator has
agreed in the Deposit and Administration Agreement to perform any act or to
discharge any duty of the Owner Trustee hereunder or under any other Basic
Document, and the Owner Trustee shall not be liable for the default or
failure of the Administrator to carry out its obligations under the Deposit
and Administration Agreement.
SECTION 5.3. Action upon Instruction. (a) The
Certificateholder may, by written instruction, direct the Owner Trustee in
the management of the Owner Trust. Such direction may be exercised at any
time by written instruction of the Certificateholder.
(b) Notwithstanding the foregoing, the Owner Trustee
shall not be required to take any action hereunder or under any other Basic
Document if the Owner Trustee shall reasonably determine, or shall have been
advised by counsel in writing, that such action is likely to result in
personal liability to the Owner Trustee (in such capacity or individually),
is contrary to the terms of this Agreement or any other Basic Document or is
contrary to law.
(c) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by the terms of
this Agreement or any other Basic Document or is unsure as to the application
of any provision of this Agreement or any other Basic Document, or if any
such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholder requesting instruction as to the course of action to be
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adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholder received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten days
of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall
deem to be in the best interests of the Certificateholder, and shall have no
liability to any Person for such action or inaction.
SECTION 5.4. No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall undertake to perform
such duties and only such duties as are specifically set forth in this
Agreement and the other Basic Documents, and no implied covenants or
obligations shall be read into this Agreement or the other Basic Documents.
The Owner Trustee shall not have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of, or otherwise
deal with the Owner Trust Estate, or to otherwise take or refrain from taking
any action under, or in connection with, any document contemplated hereby to
which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or in any document or written instruction received by the
Owner Trustee pursuant to Section 5.3; and no implied duties or obligations
shall be read into this Agreement or any other Basic Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any filing for the Owner Trust
with the Securities and Exchange Commission or to record this Agreement or
any other Basic Document. The Owner Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Owner Trust Estate that
result from actions by, or claims against, the Owner Trustee, in its
individual capacity, that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 5.5. No Action Except under Specified Documents
or Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (ii) in accordance with the
Basic Documents, and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not
(a) take any action that is inconsistent with the purposes of the Owner Trust
set forth in Section 2.3 or (b) take any action or amend this Agreement in
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any manner that, to the actual knowledge of a Responsible Officer of the
Owner Trustee, would result in the Owner Trust becoming taxable as a
corporation for United States federal income tax purposes. The
Certificateholder shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
SECTION 5.7. Doing Business in Other Jurisdictions.
(a) Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware, other than as set forth in the last sentence
of this Section 5.7, if the taking of such action will (i) require the
consent or approval or authorization or order of or the giving of notice to,
or the registration with or the taking of any other action in respect of, any
state or other governmental authority or agency of any jurisdiction other
than the State of Delaware; (ii) result in any fee, tax or other governmental
charge under the laws of any jurisdiction or any political subdivisions
thereof in existence on the date hereof other than the State of Delaware
becoming payable by the Owner Trustee; or (iii) subject the Owner Trustee to
personal jurisdiction in any jurisdiction other than the State of Delaware
for causes of action arising from acts unrelated to the consummation of the
transactions by the Owner Trustee, as the case may be, contemplated hereby.
The Owner Trustee shall be entitled to obtain advice of counsel (which advice
shall be an expense of the Depositor) to determine whether any action
required to be taken pursuant to this Agreement results in the consequences
described in clauses (i), (ii) and (iii) of the preceding sentence. In the
event that said counsel advises the Owner Trustee that such action will
result in such consequences, the Owner Trustee will, at the expense of the
Depositor, appoint an additional trustee pursuant to Section 9.5 to proceed
with such action.
ARTICLE VI. CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Owner Trust Estate upon the terms of
the other Basic Documents and this Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or gross
negligence or (ii) in the case of the breach of any representation or
warranty contained in Section 6.3 expressly made by the Owner Trustee. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
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(a) The Owner Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Owner Trustee
unless it is proved that the Owner Trustee was grossly negligent in
ascertaining the pertinent facts;
(b) The Owner Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with the
instructions of the Certificateholder given pursuant to Section 5.3;
(c) No provision of this Agreement or any other Basic
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in its own performance of any of its rights or
powers hereunder or under any other Basic Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured or provided
to it;
(d) Under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Agreement or
for the due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust Estate
or for or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Certificate, shall not be
accountable for the use or application by the Depositor of the proceeds from
the Certificate, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder or to the Certificateholder,
other than as expressly provided for herein and in the other Basic Documents;
(f) The Owner Trustee shall not be liable for the
default or misconduct of the Indenture Trustee, the Administrator or the
Servicer under any of the Basic Documents or otherwise, and the Owner Trustee
shall have no obligation or liability to perform the obligations to be
performed on behalf of the Owner Trust under this Agreement or the other
Basic Documents that are required to be performed by the Administrator under
the Deposit and Administration Agreement or the Indenture Trustee under the
Indenture;
(g) The Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise
or in relation to this Agreement or any other Basic Document, at the request,
order or direction of the Certificateholder, unless the Certificateholder has
offered to the Owner Trustee security or indemnity satisfactory to it against
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the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any
discretionary act enumerated in this Agreement or in any other Basic Document
shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its gross negligence, bad faith or willful
misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically
required to be furnished pursuant to any provision of this Agreement or the
other Basic Documents, shall examine them to determine whether they conform
to the requirements of this Agreement or such other Basic Document; provided,
however, that the Owner Trustee shall not be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished to the Owner Trustee pursuant
to this Agreement or the other Basic Documents.
SECTION 6.2. Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholder promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Basic Documents.
SECTION 6.3. Representations and Warranties. Wilmington
Trust Company, in its individual capacity, hereby represents and warrants to
the Depositor, for the benefit of the Certificateholder, that:
(a) It is a banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power, authority and legal right to execute, deliver and perform
its obligations under this Agreement.
(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
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indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound.
(d) The execution, delivery and performance by
Wilmington Trust Company of this Agreement does not require the
authorization, consent, or approval of, the giving of notice to, the filing
or registration with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the United
States of America regulating the corporate trust activities of Wilmington
Trust Company.
(e) This Agreement has been duly authorized, executed
and delivered by Wilmington Trust Company and shall constitute the legal,
valid, and binding agreement of Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee for the Chase Credit Card
Owner Trust 1999-3, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization and
other laws affecting the rights of creditors generally, and by general
principles of equity regardless of whether enforcement is pursuant to a
proceeding in equity or at law.
SECTION 6.4. Reliance; Advice of Counsel. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors
or other governing body of any corporate party as conclusive evidence that
such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for
any action taken or omitted to be taken by it in good faith in reliance
thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement or the other Basic Documents, the Owner Trustee (i) may act
directly or through its agents or attorneys pursuant to agreements entered
into with any of them, and 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.
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The Owner Trustee shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons and not contrary to this
Agreement or any other Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except
as provided in this Article VI, in accepting the trusts hereby created,
Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee for the Chase Credit Card Owner Trust 1999-3, acts solely as the
Owner Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any other Basic Document shall look only to
the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.6. Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of the Notes and may deal with the Depositor, the Indenture Trustee
and the Servicer in banking transactions with the same rights as it would
have if it were not the Owner Trustee.
ARTICLE VII. COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The
Owner Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Depositor and the Owner Trustee, and the Owner Trustee shall be entitled to
be reimbursed by the Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder except any such expenses as may arise from its gross negligence,
wilful misfeasance, or bad faith or that is the responsibility of the
Certificateholder under this Agreement.
SECTION 7.2. Indemnification. The Depositor shall be
liable as primary obligor for, and shall indemnify the Owner Trustee (in such
capacity or individually) and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by,
or asserted against the Owner Trustee or any Indemnified Party in any way
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
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Depositor shall not be liable for or required to indemnify the Owner Trustee
from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.1. The indemnities contained in
this Section shall survive the resignation or termination of the Owner
Trustee or the termination of this Agreement. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any Indemnified Party in respect
of which indemnity may be sought pursuant to this Section 7.2, such
Indemnified Party shall promptly notify the Depositor in writing, and the
Depositor upon request of the Indemnified Party shall retain counsel
reasonably satisfactory to the Indemnified Party (or, with the consent of the
Depositor, counsel selected by the Indemnified Party acceptable to the
Depositor) to represent the Indemnified Party and any others the Depositor
may designate in such proceeding and shall pay the reasonable fees and
expenses of such counsel related to such proceeding. The Depositor shall not
be liable for any settlement of any claim or proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Depositor agrees to indemnify any Indemnified
Party from and against any loss or liability by reason of such settlement or
judgment. The Depositor shall not, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such proceeding.
SECTION 7.3. Payments to Owner Trustee. Any amounts paid
to the Owner Trustee pursuant to this Article VII shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.
ARTICLE VIII. TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement. (a) The
Owner Trust shall terminate upon the final distribution by the Owner Trustee
of all moneys or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture and the Deposit and Administration
Agreement; provided, that in no event will the Owner Trust continue more than
21 years after the date hereof. Any money or other property held as part of
the Owner Trust Estate following such distribution shall be distributed to
the Certificateholder. The bankruptcy, death, incapacity, liquidation,
dissolution or termination of the Depositor or Certificateholder (or any
other beneficiary) shall not (x) operate to revoke or terminate this
Agreement or the Owner Trust, or (y) entitle the Certificateholder's (or any
other beneficiary) legal representatives to claim an accounting or to take
any action or proceeding in any court for a partition or winding up of all or
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any part of the Owner Trust or Owner Trustee Estate or (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a), neither the
Depositor nor the Certificateholder shall be entitled to revoke or terminate
the Owner Trust.
(c) This Agreement shall be irrevocable. Except as
provided in this Section 8.1(c), neither the Depositor nor the
Certificateholder shall be entitled to revoke or terminate the Owner Trust or
this Agreement. The Depositor and the Owner Trustee acknowledge that the
Indenture Trustee, on behalf of the Noteholders, is a third-party beneficiary
of this Agreement and shall be entitled to enforce the terms of this
Agreement to the same extent as if they were signitaries hereto. For so long
as the Notes are outstanding, neither the Owner Trust nor this Agreement
shall be revoked without the prior written consent of the Indenture Trustee.
The Depositor and the Owner Trustee acknowledge that the Indenture Trustee,
as an agent of the Noteholders, maintains a legitimate interest in ensuring
that the Owner Trust is not revoked prior to the fulfillment of the Owner
Trust objectives. In no event may this Agreement be amended without the
prior written consent of the Indenture Trustee if the effect of such
amendment is the revocation or termination of this Owner Trust other than in
accordance with this Section 8.1.
ARTICLE IX. SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation authorized to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent) which has a rating of at least
Baa3 by Moody's, at least BBB- by Standard & Poor's and, if rated by Fitch,
at least BBB- by Fitch, or if not rated, otherwise satisfactory to each Note
Rating Agency. If such corporation shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly
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appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 9.1 and shall fail to
resign after written request therefor by the Administrator, or if at any time
the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may
remove the Owner Trustee. If the Administrator shall remove the Owner
Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the outgoing Owner Trustee so removed and one copy of which shall be
delivered to the successor Owner Trustee, and payment of all fees owed to the
outgoing Owner Trustee shall be made to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by
the successor Owner Trustee pursuant to Section 9.3 and payment of all fees
and expenses owed to the outgoing Owner Trustee. The Administrator shall
provide notice of such resignation or removal of the Owner Trustee to each of
the Note Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor
Owner Trustee appointed pursuant to Section 9.2 shall execute, acknowledge
and deliver to the Administrator and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as the Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this Agreement; and
the Administrator and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties and obligations.
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No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail notice of the
successor of such Owner Trustee to the Certificateholder, the Indenture
Trustee, the Noteholders and the Note Rating Agencies. If the Administrator
shall fail to mail such notice within 10 days after acceptance of appointment
by the successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of the Administrator.
SECTION 9.4. Merger or Consolidation of Owner Trustee.
Any corporation into which the Owner Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Owner Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Owner Trustee, shall be the successor of the
Owner Trustee hereunder, provided such corporation shall be eligible pursuant
to Section 9.1, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided further that the Owner Trustee shall mail
notice of such merger or consolidation to the Note Rating Agencies.
SECTION 9.5. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Owner Trust Estate may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint at the expense of the
Depositor one or more Persons approved by the Owner Trustee to act as co-
trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Owner Trust, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Owner Trustee may
consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so to
do, the Owner Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section 9.1
and no notice of the appointment of any co-trustee or separate trustee shall
be required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
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(i) all rights, powers, duties and obligations conferred
or imposed upon the Owner Trustee shall be conferred upon and
exercised or performed by the Owner Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Owner Trust or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely
at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) the Administrator and the Owner Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. Each separate trustee and co-
trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Owner Trustee. Each such
instrument shall be filed with the Owner Trustee and a copy thereof given to
the Administrator.
Any separate trustee or co-trustee may at any time appoint
the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall become incapable of acting, resign or be removed,
all of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Owner Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
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ARTICLE X. MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. This Agreement
may be amended by the Depositor and the Owner Trustee, with prior written
notice to the Note Rating Agencies, without the consent of the Indenture
Trustee, any of the Noteholders or the Certificateholder, to cure any
ambiguity or defect, to correct or supplement any provisions in this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or of modifying
in any manner the rights of the Noteholders or the Certificateholder;
provided, however, that such amendment will not (i) as evidenced by an
Officer's Certificate of the Depositor addressed and delivered to the Owner
Trustee and the Indenture Trustee, materially and adversely affect the
interest of any Noteholder or the Owner Trust and (ii) as evidenced by an
Opinion of Counsel addressed and delivered to the Owner Trustee and the
Indenture Trustee, cause the Owner Trust to be classified as an association
(or a publicly traded partnership) taxable as a corporation for federal
income tax purposes; provided, further, that the Depositor shall deliver
written notice of such amendments to each Note Rating Agency prior to the
execution of any such amendment.
This Agreement may also be amended from time to time by
the Depositor and the Owner Trustee, with prior written notice to the Note
Rating Agencies, with the prior written consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any
manner the rights of the Noteholders or the Certificateholder; provided that
no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments in respect of
the Series Certificate or distributions that shall be required to be made for
the benefit of the Noteholders or the Certificateholder, or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes, the Holders of
which are required to consent to any such amendment.
Promptly after the execution of any amendment or consent,
the Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Certificateholder, the Indenture Trustee and each
of the Note Rating Agencies.
It shall not be necessary for the consent of the
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement,
the Owner Trustee shall be entitled to receive and rely upon an Opinion of
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Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Owner Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any
part of the Owner Trust Estate. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholder to and in
its ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 10.3. Limitations on Rights of Others. The
provisions of this Agreement are solely for the benefit of the Owner Trustee,
the Depositor, the Certificateholder and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Owner Trust
Estate or under or in respect of this Agreement or any covenants, conditions
or provisions contained herein.
SECTION 10.4. Notices. Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing
and shall be deemed given upon receipt personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and
shall be deemed to have been duly given upon receipt, if to the Owner
Trustee, addressed to Wilmington Trust Company, Rodney Square North, 1100
North Market Street, Wilmington, DE 19890-0001, Attn: Corporate Trust
Administration, if to the Depositor, addressed to, Chase Manhattan Bank USA,
National Association, Attn: , or, as to each party,
at such other address as shall be designated by such party in a written
notice to each other party.
SECTION 10.5. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may
be executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
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SECTION 10.7. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Depositor, the Owner Trustee and its successors and the
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Certificateholder shall bind the successors and
assigns of the Certificateholder.
SECTION 10.8. Nonpetition Covenants. Notwithstanding any
prior termination of the Owner Trust or this Agreement, each of the Owner
Trustee (not in its individual capacity) and the Certificateholder, by its
acceptance of the Certificate, covenants and agrees that it shall not at any
time with respect to the Owner Trust or the Master Trust, acquiesce, petition
or otherwise invoke or cause the Owner Trust or the Master Trust to invoke
the process of any court or government authority for the purpose of
commencing or sustaining a case against the Owner Trust or the Master Trust
under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Owner Trust or the Master Trust
or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Owner Trust or the Master Trust; provided,
however, that this Section 10.8 shall not operate to preclude any remedy
described in Article V of the Indenture.
SECTION 10.9. No Recourse. The Certificateholder by
accepting the Certificate acknowledges that the Certificate does not
represent an interest in or obligation of the Depositor, the Administrator,
the Owner Trustee (in its individual capacity), the Indenture Trustee or any
Affiliate thereof, and no recourse may be had against such parties or their
assets, or against the assets pledged under the Indenture.
SECTION 10.10. Headings. The headings of the various
Articles and Sections herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 10.12. Depositor Payment Obligation. The
Depositor shall be responsible for payment of the Administrator's fees under
the Deposit and Administration Agreement and shall reimburse the
Administrator for all expenses and liabilities of the Administrator incurred
thereunder.
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SECTION 10.13. Acceptance of Terms of Agreement. THE
RECEIPT AND ACCEPTANCE OF THE CERTIFICATE BY THE CERTIFICATEHOLDER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE CERTIFICATEHOLDER OF ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE OWNER
TRUSTEE, ON BEHALF OF THE OWNER TRUST, THAT THE TERMS AND PROVISIONS OF THIS
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE OWNER
TRUSTEE AND THE CERTIFICATEHOLDER.
SECTION 10.14. Integration of Documents. This Agreement,
together with the Deposit and Administration Agreement, constitutes the
entire agreement of the parties hereto and thereto with respect to the
subject matter hereof and thereof and supercedes all prior agreements
relating to the subject matter hereof and thereof.
[Signature Page to Follow]
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<PAGE>
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: Keith Schuck
Title: Vice President
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<PAGE>
EXHIBIT A
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (OR ANY
INTEREST HEREIN) MAY NOT BE TRANSFERRED BY THE OWNER TO ANY PERSON.
CHASE CREDIT CARD OWNER TRUST 1999-3
OWNER CERTIFICATE
R-1
(This Certificate does not represent an interest in or obligation of Chase
Manhattan Bank USA, National Association, or any of its affiliates, except to
the extent described below.)
THIS CERTIFIES THAT Chase Manhattan Bank USA, National Association is
the registered owner of one hundred percent (100%) of the beneficial interest
in the Chase Credit Card Owner Trust 1999-3 (the "Owner Trust") created by
Chase Manhattan Bank USA, National Association, a national banking
association (the "Depositor").
The Owner Trust was created pursuant to the Chase Credit Card Owner
Trust 1999-3 Trust Agreement dated as of September 29, 1999 (the "Trust
Agreement"), between the Depositor and Wilmington Trust Company, as owner
trustee (the "Owner Trustee"). To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in the
Trust Agreement including, as specified in Section 1.1(a).
This Certificate is the duly authorized Certificate evidencing the
sole beneficial interest in the Owner Trust (herein called the
"Certificate"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. Three classes of Notes
designated as Class A 6.66% Asset Backed Notes, Series 1999-3 (the "Class A
Notes"), Class B 6.95% Asset Backed Notes, Series 1999-3 (the "Class B
Notes") and Class C Floating Rate Asset Backed Notes, Series 1999-3 (the
"Class C Notes" and, together with the Class A Notes and the Class B Notes,
the "Notes") will be issued under the Indenture dated as of September 29,
1999 between Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee for the Owner Trust and The Bank of New York, as
Indenture Trustee.
Notwithstanding any prior termination of the Trust Agreement, the
Certificateholder, by its acceptance of this Certificate, covenants and
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agrees that it shall not at any time with respect to the Owner Trust, the
Depositor or the Master Trust, acquiesce, petition or otherwise invoke or
cause the Owner Trust, the Depositor or the Master Trust to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Owner Trust, the Depositor or the Master Trust,
under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Owner Trust, the Depositor or
the Master Trust, or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Owner Trust, the Depositor or
the Master Trust.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Deposit and Administration Agreement or be valid for
any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS
AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE OWNER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Owner Trust
and not in its individual capacity, has caused this Certificate to be duly
executed.
CHASE CREDIT CARD OWNER
TRUST 1999-3
WILMINGTON TRUST COMPANY
Not in its individual capacity
but solely as Owner Trustee for the Chase
Credit Card Owner Trust 1999-3
Dated: ______________, _____ By: ______________________________
Name:
Title:
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<PAGE>
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Owner Trustee for the
Chase Credit Card Owner Trust 1999-3
By: ______________________________
Authorized Signatory
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<PAGE>
ANNEX 1 TO EXHIBIT A
Registered Owner and address:
Chase Manhattan Bank USA, National Association
802 Delaware Avenue, 13th Floor
Wilmington, DE 19801
Tax Identification Number:
-1-
Exhibit 4.11
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor and Administrator
and
CHASE CREDIT CARD OWNER TRUST 1999-3
as Issuer
DEPOSIT
AND
ADMINISTRATION AGREEMENT
Dated as of September 29, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . 1
SECTION 1.2 Usage of Terms . . . . . . . . . . . . . . . 1
ARTICLE II DEPOSIT OF CERTIFICATE
SECTION 2.1 Deposit of Certificate and Initial Deposit . 1
SECTION 2.2 Closing . . . . . . . . . . . . . . . . . . 2
SECTION 2.3 Books and Records . . . . . . . . . . . . . 2
SECTION 2.4 Holder of the Series Certificate . . . . . . 3
ARTICLE III DEPOSITOR REPRESENTATIONS
AND WARRANTIES
SECTION 3.1 Representations and Warranties
of Depositor . . . . . . . . . . . . . . . . 3
ARTICLE IV ADMINISTRATION
SECTION 4.1 Duties as Administrator . . . . . . . . . . . 5
SECTION 4.2 Records . . . . . . . . . . . . . . . . . . 11
SECTION 4.3 Reserved] . . . . . . . . . . . . . . . . . 12
SECTION 4.4 Additional Information To Be Furnished
to Issuer . . . . . . . . . . . . . . . . . . 12
SECTION 4.5 Independence of Administrator . . . . . . . 12
SECTION 4.6 No Joint Venture . . . . . . . . . . . . . . 12
SECTION 4.7 Other Activities of Administrator . . . . . 12
ARTICLE V TERMINATION
SECTION 5.1 Term of Agreement; Resignation and Removal of
of Administrator . . . . . . . . . . . . . . 13
SECTION 5.2 Action upon Termination, Resignation
or Removal . . . . . . . . . . . . . . . . . 14
ARTICLE VI MISCELLANEOUS
SECTION 6.1 Notices . . . . . . . . . . . . . . . . . . . 15
SECTION 6.2 Amendments . . . . . . . . . . . . . . . . . . 16
SECTION 6.3 Protection of Title to Owner Trust . . . . . . 16
SECTION 6.4 Successors and Assigns . . . . . . . . . . . . 17
SECTION 6.5 GOVERNING LAW . . . . . . . . . . . . . . . . 17
SECTION 6.6 Headings . . . . . . . . . . . . . . . . . . . 18
SECTION 6.7 Counterparts . . . . . . . . . . . . . . . . . 18
SECTION 6.8 Severability . . . . . . . . . . . . . . . . . 18
SECTION 6.9 Not Applicable to Chase Manhattan
Bank USA, National Association in
Other Capacities . . . . . . . . . . . . . . . 18
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SECTION 6.10 Limitation of Liability of Owner Trustee,
Indenture Trustee and Administrator. . . . . . 18
SECTION 6.11 Third-Party Beneficiary . . . . . . . . . . . 19
SECTION 6.12 Nonpetition Covenants . . . . . . . . . . . . 19
SECTION 6.13 Liability of Administrator . . . . . . . . . . 19
Exhibit A Power of Attorney
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This DEPOSIT AND ADMINISTRATION AGREEMENT, dated as of
September 29, 1999 (as amended, supplemented or otherwise modified and in
effect from time to time, this "Agreement"), is made between CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, a national banking association having its
principal executive offices located at 802 Delaware Avenue, Wilmington,
Delaware 19801 ("Chase USA," the "Transferor" or the "Depositor" in its
respective capacities as such), and WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee of Chase Credit Card Owner
Trust 1999-3, a Delaware common law trust, as issuer (the "Issuer").
W I T N E S S E T H :
In consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Whenever used in this
Agreement, words and phrases, unless defined herein or the context otherwise
requires, shall have the meanings set forth in the Indenture.
SECTION 1.2 Usage of Terms. With respect to all terms
in this Agreement, the singular includes the plural and the plural the
singular; words importing any gender include the other gender; references to
"writing" include printing, typing, lithography, and other means of
reproducing words in a visible form; references to agreements and other
contractual instruments include all subsequent amendments thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the term "including" means "including without
limitation." All references herein to Articles, Sections, Subsections and
Exhibits are references to Articles, Sections, Subsections and Exhibits
contained in or attached to this Agreement unless otherwise specified, and
each such Exhibit is part of the terms of this Agreement.
ARTICLE II
DEPOSIT OF CERTIFICATE
SECTION 2.1 Deposit of Certificate and Initial Deposit.
(a) In consideration of the Issuer's delivery of the Notes to and upon the
order of the Depositor, the Depositor does hereby transfer, assign, set-over,
pledge and otherwise convey to the Issuer, without recourse (subject to the
Depositor's obligations herein), all right, title, and interest of the
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Depositor in, to and under (i) the Series Certificate, and all money,
instruments, investment property and other property (together with all
earnings, dividends, distributions, income, issues, and profits relating
thereto), distributed or distributable in respect of the Series Certificate
pursuant to the terms of the Series Supplement and the Pooling and Servicing
Agreement after the Closing Date and (ii) the initial deposit to the Owner
Trust Spread Account in the amount of $9,659,100 on the Closing Date.
This Agreement also shall be deemed to be, and hereby is, a
security agreement within the meaning of the UCC, and the conveyance by the
Depositor provided for in this Agreement shall be deemed to be and hereby is
a grant by the Depositor to the Issuer of a security interest in and to all
of the Depositor's right, title and interest, whether now owned or hereafter
acquired, in, to and under all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, arising from, or relating to
the Series Certificate and the proceeds thereof, to secure the rights of the
Issuer under this Agreement and the obligations of the Depositor hereunder.
The Depositor and the Issuer shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that the security
interest in the Series Certificate created hereunder will be a perfected
security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement.
It is the intention of the Depositor and the Issuer that (a)
the assignment and transfer herein contemplated constitute a sale of the
Series Certificate, conveying good title thereto free and clear of any liens
and encumbrances, from the Depositor to the Issuer and (b) the Series
Certificate not be part of the Depositor's estate in the event of an
insolvency of the Depositor. In the event that such conveyance is deemed to
be a pledge to secure a loan, the Depositor hereby grants to the Issuer a
first priority perfected security interest in all of the Depositor's right,
title and interest in, to and under the Series Certificate, and in all
proceeds of the foregoing, to secure the loan deemed to be made in connection
with such pledge and, in such event, this Agreement shall constitute a
security agreement under applicable law.
(b) To the extent that the Depositor retains
any interest in the Series Certificate, the Depositor hereby grants
to the Indenture Trustee for the benefit of the Holders of the Notes
a security interest in all of the Depositor's right, title, and
interest, whether now owned or hereafter acquired, in, to, and under
all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, and investment property
consisting of, arising from, or relating to the Series Certificate
and the proceeds thereof (collectively, the "Indenture Collateral"),
to secure the performance of all of the obligations of the Depositor
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under the Indenture and the other Basic Documents. With respect to
the Indenture Collateral, the Indenture Trustee shall have all of the
rights it has under the Indenture and the other Basic Documents. The
Indenture Trustee shall have all of the rights of a secured creditor
under the UCC in New York and the UCC in Delaware.
SECTION 2.2 Closing. The sale of the Series
Certificate shall take place at the offices of Simpson Thacher & Bartlett,
New York, New York on the Closing Date, simultaneously with the closing of
the other transactions contemplated by the Basic Documents.
SECTION 2.3 Books and Records.
(a) In connection with the transfer,
assignment, set-over, pledge and conveyance set forth in Section 2.1,
the Depositor agrees to record and file, at its own expense, any
financing statements (and continuation statements with respect to
such financing statements when applicable) required to be filed with
respect to the Series Certificate assigned by the Depositor
hereunder, meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary under applicable
law to perfect the transfer, assignment, set-over, pledge and
conveyance of the Series Certificate to the Issuer, and to deliver a
file-stamped copy of such financing statements or other evidence of
such filings to the Issuer on or prior to the Closing Date (excluding
such continuation and similar statements, which shall be delivered
promptly after filing).
(b) In connection with the transfer,
assignment, set-over, pledge and conveyance hereunder, the Depositor
further agrees, at its own expense, on or prior to the Closing Date
to cause the Master Trust Trustee to register the Issuer as the
registered owner of the Series Certificate.
SECTION 2.4 Holder of the Series Certificate. For so
long as the Series Certificate is pledged to the Indenture Trustee under the
Indenture, the Indenture Trustee initially shall be deemed to be the holder
of the Series Certificate for all purposes under the Pooling and Servicing
Agreement and the Series Supplement. To the extent the Series Certificate is
sold or otherwise transferred, subject to the provisions of Section 5.4 of
the Indenture and Section 16 of the Series Supplement, to a third-party in
connection with the sale or liquidation of the Owner Trust Estate pursuant to
the provisions of the Indenture, such transferee shall be deemed to be the
holder of the Series Certificate for all purposes under the Pooling and
Servicing Agreement and the Series Supplement.
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<PAGE>
ARTICLE III
DEPOSITOR REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of
Depositor. The Depositor makes the following representations and warranties
with respect to the Series Certificate on which the Issuer is deemed to have
relied in acquiring the Series Certificate. Such representations and
warranties speak as of the execution and delivery of this Agreement, but
shall survive the transfer and assignment of the Series Certificate to the
Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Title. It is the intention of the
Depositor (i) that the transfer contemplated in subsection 2.1(a)
herein constitute either (A) a sale of the Series Certificate, or (B)
a grant of a perfected security interest therein from the Depositor
to the Issuer and (ii) to the extent that the Depositor retains any
interest in the Series Certificate after the transfer contemplated by
subsection 2.1(a) herein, that the grant contemplated in subsection
2.1(b) herein constitute a grant of a perfected security interest
therein from the Depositor to the Indenture Trustee for the benefit
of the Holders of the Notes and that the beneficial interest in the
title to the Series Certificate not be part of the debtor's estate in
the event of the filing of a bankruptcy petition by or against the
Depositor under any bankruptcy law. The Series Certificate has not
been sold, transferred, assigned or pledged by the Depositor to any
Person other than pursuant to this Agreement. Immediately prior to
the transfer and assignment herein contemplated, the Depositor had
good and marketable title to the Series Certificate, free and clear
of all liens and rights of others and, immediately upon the transfer
thereof, the Issuer shall have good and marketable title to the
Series Certificate, free and clear of all liens of rights of others
or a first priority perfected security interest therein; and the
transfer has been perfected, by the filing of appropriate financing
statements pursuant to the UCC, under the UCC. The Depositor has no
actual knowledge of any current statutory or other non-consensual
liens to which the Series Certificate is subject.
(b) No Consents Required. All approvals,
authorizations, consents, orders or other actions of any Person or of
any Governmental Authority required in connection with the execution
and delivery by the Depositor of this Agreement or any other Basic
Document, the performance by the Depositor of the transactions
contemplated by this Agreement or any other Basic Document and the
fulfillment by the Depositor of the terms hereof and thereof have
been obtained or have been completed and are in full force and effect
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<PAGE>
(other than approvals, authorizations, consents, orders and other
actions which if not obtained or completed or in full force or effect
would not have a material adverse effect on the Depositor or the
Issuer or upon the collectibility of the proceeds from the Series
Certificate or upon the ability of the Depositor to perform its
obligations under this Agreement).
(c) Transfers Comply. Each of (i) the transfer
of the Series Certificate by the Depositor to the Issuer pursuant to
the terms of this Agreement, (ii) the pledge of the Series
Certificate by the Depositor to the Indenture Trustee for the benefit
of the Holders of the Notes pursuant to the terms of this Agreement,
and (iii) the pledge of the Series Certificate by the Issuer to the
Indenture Trustee pursuant to the terms of the Indenture, comply with
the provisions of the Pooling and Servicing Agreement and the Series
Supplement relating to the transfers of the Series Certificate.
(d) All Actions Taken. All actions necessary
under the applicable UCC in any jurisdiction to be taken (i) to give
the Issuer a first priority perfected security interest or ownership
interest in the Series Certificate, and (ii) to give the Indenture
Trustee a first priority perfected security interest therein
(including, without limitation, UCC filings with the Delaware
Secretary of State), in each case subject to any statutory or other
non-consensual liens with respect to the Series Certificate, have
been taken. The Depositor has no actual knowledge of any current
statutory or other non-consensual liens to which the Series
Certificate is subject.
ARTICLE IV
ADMINISTRATION
SECTION 4.1 Duties as Administrator.
(a) Duties with Respect to the Basic Documents. The
Administrator agrees to perform all its duties as Administrator hereunder.
The Administrator shall monitor the performance of the Issuer and shall
advise the Issuer and the Owner Trustee when action is necessary to comply
with the Issuer's duties under the Indenture or with the Owner Trustee's
duties under the Trust Agreement. The Administrator shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the preparation
by other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer
or the Owner Trustee to prepare, file or deliver pursuant to the Basic
Documents or under applicable law (including tax and securities laws). In
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furtherance of the foregoing, the Administrator shall take all appropriate
action that it is the duty of the Issuer or the Owner Trustee to take
pursuant to this Agreement or the Indenture including, without limitation,
such of the foregoing as are required with respect to the following matters
under this Agreement and the Indenture (references are to sections of the
Indenture):
(i) the preparation of or obtaining
of the documents and instruments required for authentication
of the Notes, if any, and delivery of the same to the
Indenture Trustee (Sections 2.2 and 2.3);
(ii) the duty to cause the Note
Register to be kept and to give the Indenture Trustee notice
of any appointment of a new Note Registrar and the location,
or change in location, of the Note Register and the office
or offices where Notes may be surrendered for registration
of transfer or exchange (Section 2.4);
(iii) the notification of Noteholders
of the final principal payment on their Notes (subsection
2.7(h));
(iv) the preparation, obtaining or
filing of the instruments, opinions and certificates and
other documents required for the release of collateral
(Section 2.9);
(v) the preparation of Definitive
Notes and arranging the delivery thereof (Section 2.12);
(vi) the duty to cause newly appointed
Paying Agents, if any, to deliver to the Indenture Trustee
the instrument specified in the Indenture regarding funds
held in trust (Section 2.14);
(vii) to select Reference Banks, if
necessary, or other banks from which quotes are obtained for
the purpose of determining LIBOR (Section 2.16);
(viii) the maintenance of an office or
agency in the City of New York for registration of transfer
or exchange of Notes (Section 3.2);
(ix) the direction to Paying Agents to
pay to the Indenture Trustee all sums held in trust by such
Paying Agents (Section 3.3);
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(x) the obtaining and preservation of
the Issuer's qualification to do business in each
jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other
instrument and agreement included in the Owner Trust Estate
(Section 3.4);
(xi) the preparation of all
supplements, amendments, financing statements, continuation
statements, if any, instruments of further assurance and
other instruments, in accordance with Section 3.5 of the
Indenture, necessary to protect the Owner Trust Estate
(Section 3.5);
(xii) the obtaining of the Opinion of
Counsel on the Closing Date and the annual delivery of
Opinions of Counsel, in accordance with Section 3.6 of the
Indenture, as to the Owner Trust Estate, and the annual
delivery of the Officers' Certificate and certain other
statements, in accordance with Section 3.9 of the Indenture,
as to compliance with the Indenture (Sections 3.6 and 3.9);
(xiii) the identification to the
Indenture Trustee in an Officers' Certificate of a Person
with whom the Issuer has contracted to perform its duties
under the Indenture (subsection 3.7(b));
(xiv) the notification of the Indenture
Trustee and the Note Rating Agencies of a Master Trust
Servicer Default pursuant to the Pooling and Servicing
Agreement and, if such Master Trust Servicer Default arises
from the failure of the Servicer to perform any of its
duties under the Pooling and Servicing Agreement, the taking
of all reasonable steps available to remedy such failure
(subsection 3.7(d));
(xv) the preparation and obtaining of
documents and instruments required for the release of the
Issuer from its obligation under the Indenture (subsection
3.11(b));
(xvi) the delivery of notice to the
Indenture Trustee of each Event of Default, any Master Trust
Servicer Default and each default by the Depositor under
this Agreement (Section 3.18);
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(xvii) the taking of such further acts
as may be reasonably necessary or proper to carry out more
effectively the purpose of the Indenture or to compel or
secure the performance and observance by the Depositor of
its obligations under this Agreement (Sections 3.19 and
5.16);
(xviii) the monitoring of the Issuer's
obligations as to the satisfaction and discharge of the
Indenture and the preparation of an Officer's Certificate
and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.1);
(xix) the compliance with any written
directive of the Indenture Trustee with respect to the sale
of the Owner Trust Estate in any manner permitted by law if
an Event of Default shall have occurred and be continuing
(Section 5.4);
(xx) providing the Indenture Trustee
with the information necessary to deliver to each Noteholder
such information as may be reasonably required to enable
such Holder to prepare its United States federal and state,
local income or franchise tax returns (Section 6.6);
(xxi) the preparation and delivery of
notice to Noteholders of the removal of the Indenture
Trustee and the appointment of a successor Indenture Trustee
(Section 6.8);
(xxii) the preparation of any written
instruments required to confirm more fully the authority of
any co-trustee or separate trustee and any written
instruments necessary in connection with the resignation or
removal of the Indenture Trustee or any co-trustee or
separate trustee (Sections 6.8 and 6.10);
(xxiii) the furnishing of the Indenture
Trustee with the names and addresses of Noteholders during
any period when the Indenture Trustee is not the Note
Registrar (Section 7.1);
(xxiv) the preparation and, after
execution by the Issuer, the filing with the Commission and
any applicable state agencies and the Indenture Trustee of
documents required to be filed on a periodic basis with, and
summaries thereof as may be required by rules and
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regulations prescribed by, the Commission and any applicable
state agencies and the transmission of such summaries, as
necessary, to the Noteholders (Section 7.4);
(xxv) the obtaining of an Officers'
Certificate, Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Owner
Trust Estate as defined in the Indenture (Sections 8.4 and
8.5);
(xxvi) the preparation of Issuer Orders
and Issuer Requests and the obtaining of Opinions of Counsel
with respect to the execution of supplemental indentures and
the mailing to the Noteholders of notices with respect to
such supplemental indentures (Sections 9.1 and 9.2);
(xxvii) the execution of new Notes
conforming to any supplemental indenture (Section 9.5);
(xxviii) providing the Indenture Trustee
with the form of notice necessary to deliver the
notification of Noteholders of redemption of the Notes
(Section 10.2);
(xxix) the preparation of all Officers'
Certificates, Opinions of Counsel and Independent
Certificates with respect to any requests by the Issuer to
the Indenture Trustee to take any action under the Indenture
(Section 11.1(a));
(xxx) the preparation and delivery of
Officers' Certificates and the obtaining of Independent
Certificates, if necessary, for the release of property from
the lien of the Indenture (Section 11.1(b));
(xxxi) the preparation and delivery to
the Noteholders and the Indenture Trustee of any agreements
with respect to alternate payment and notice provisions
(Section 11.6); and
(xxxii) the recording of the Indenture,
if applicable (Section 11.15).
(b) Additional Duties.
(i) In addition to the duties of the
Administrator set forth above, the Administrator shall keep
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all books and records, perform such calculations and shall
prepare for execution by the Issuer or the Owner Trustee or
shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the
Issuer or the Owner Trustee to keep, perform, prepare, file
or deliver pursuant to any of the Basic Documents and at the
request of the Owner Trustee shall take all appropriate
action that it is the duty of the Issuer or the Owner
Trustee to take pursuant to the Basic Documents. Subject to
Section 5 of this Agreement, and in accordance with the
directions of the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such
other activities in connection with the Owner Trust Estate
(including the Basic Documents) as are not covered by any of
the foregoing provisions and as are expressly requested by
the Owner Trustee and are reasonably within the capability
of the Administrator.
(ii) Notwithstanding anything in this
Agreement or the other Basic Documents to the contrary, the
Administrator shall be responsible for promptly notifying
the Indenture Trustee in the event that any withholding tax
is imposed on the Issuer's payments (or allocations of
income) to a Noteholder. Any such notice shall specify the
amount of any withholding tax required to be withheld by the
Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this
Agreement or the other Basic Documents to the contrary, the
Administrator shall be responsible for (A) performance of
the duties of the Owner Trustee and the Issuer set forth in
Sections 2.7, 2.10, 2.11, 2.12, 2.13(d), 5.16, 6.7, 6.10,
and 10.1 of the Indenture with respect to, among other
things, accounting and reports to the Certificateholder and
the maintenance of certain Accounts and (B) the preparation,
execution and filing of all documents required by tax and
securities laws relating to the Issuer.
(iv) The Administrator may satisfy its
obligations with respect to clauses (ii) and (iii) above by
retaining, at the expense of the Administrator, a firm of
independent public accountants (the "Accountants")
acceptable to the Indenture Trustee which shall perform the
obligations of the Administrator thereunder.
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(v) The Administrator shall perform
the duties of the Administrator specified in Sections 9.2
and 9.3 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner
Trustee, the duties of the Administrator specified in
Section 9.5 of the Trust Agreement required to be performed
in connection with the appointment and payment of co-
Trustees, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing
duties or any of its other obligations under this Agreement,
the Administrator may enter into transactions with or
otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the
Issuer and shall be, in the Administrator's opinion, no less
favorable to the Issuer than would be available from
unaffiliated parties.
(vii) It is the intention of the
parties hereto that the Administrator shall, and the
Administrator hereby agrees to, execute on behalf of the
Issuer or the Owner Trustee all such documents, reports,
filings, instruments, certificates and opinions as it shall
be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Basic Documents. In
furtherance thereof, the Owner Trustee shall, on behalf of
itself and of the Issuer, execute and deliver to the
Administrator, and to each successor Administrator appointed
pursuant to the terms hereof, one or more powers of attorney
substantially in the form of Exhibit A hereto, appointing
the Administrator the attorney-in-fact of the Owner Trustee
and the Issuer for the purpose of executing on behalf of the
Owner Trustee and the Issuer all such documents, reports,
filings, instruments, certificates and opinions.
(c) Non-Ministerial Matters. (i) With respect
to matters that in the reasonable judgment of the Administrator are
non-ministerial, the Administrator shall not take any action unless
within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed
action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include, without
limitation:
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(A) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by or
against the Issuer (other than in connection with the collection of
the Receivables);
(B) the amendment, change or modification of the Basic
Documents;
(C) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees pursuant to
the Indenture or the appointment of successor Administrators or the
consent to the assignment by the Note Registrar, the Paying Agent or
the Indenture Trustee of its obligations under the Indenture; and
(D) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the
contrary in this Agreement, the Administrator shall not be
obligated to, and shall not, (x) make any payments to the
Noteholders or the Certificateholder under the Basic
Documents, (y) sell the Owner Trust Estate pursuant to the
Indenture other than pursuant to a written directive of the
Indenture Trustee or (z) take any action that the Issuer
directs the Administrator not to take on its behalf.
(d) Reports by the Administrator. On or prior
to each Transfer Date, the Administrator will provide to the
Indenture Trustee for the Indenture Trustee to forward to each
Noteholder of record, and to the Owner Trustee, a statement setting
forth (to the extent applicable) the following information as to the
Notes with respect to the related Payment Date or the period since
the previous Payment Date, as applicable:
(i) the amount of the distribution
allocable to principal of the Notes;
(ii) the amount of the distribution
allocable to interest on or with respect to the Notes;
(iii) the aggregate outstanding principal
balance of the Notes after giving effect to all payments
reported under clause (i) above on such date; and
(iv) the amount, if any, on deposit in
the Owner Trust Spread Account on such Payment Date, after
giving effect to all transfers and withdrawals therefrom and
all transfers and deposits thereto on such Payment Date, and
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the amount required to be on deposit in the Owner Trust
Spread Account on such date.
Each amount set forth pursuant to clauses (i) and (ii) above
will be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes.
(e) Owner Trust Accounts. The Administrator
shall establish and maintain, in the name of the Indenture Trustee,
for the benefit of the Noteholders, an Eligible Deposit Account (the
"Note Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit
of the Noteholders. The Administrator shall establish and maintain,
in the name of the Indenture Trustee, for the benefit of the Class C
Noteholders (and, to the extent expressly provided in the Indenture,
the Certificateholder), an Eligible Deposit Account (the "Owner Trust
Spread Account", and together with the Note Distribution Account, the
"Owner Trust Accounts"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Class C Noteholders and the Certificateholder. The Indenture Trustee
shall possess all right, title and interest in all funds on deposit
from time to time in the Owner Trust Accounts and in all proceeds
thereof. The Note Distribution Account shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the
Noteholders. The Owner Trust Spread Account shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the
Class C Noteholders (and, to the extent expressly provided in the
Indenture, the Certificateholder). If, at any time, any Owner Trust
Account ceases to be an Eligible Deposit Account, the Administrator
shall notify the Indenture Trustee, and the Indenture Trustee upon
being notified (or the Administrator on its behalf) shall, within 10
Business Days, establish a new Owner Trust Account which meets the
conditions specified in the definition of Eligible Deposit Account,
and shall transfer any cash or any investments to such new Owner
Trust Account. The Indenture Trustee, at the direction of the
Administrator, shall make withdrawals from the Owner Trust Accounts
from time to time, in the amounts and for the purposes set forth in
the Indenture.
Funds on deposit in the Owner Trust Spread Account shall be
invested at the direction of the Administrator by the Indenture Trustee in
Permitted Investments. The Indenture Trustee shall maintain for the benefit
of the Noteholders and the Series Certificateholder possession of the
negotiable instruments or securities, if any, evidencing such Permitted
Investments. No Permitted Investment shall be disposed of prior to its
maturity.
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To the extent so instructed by the Administrator on any
Transfer Date, the Indenture Trustee shall, if the amount on deposit in the
Owner Trust Spread Account is greater than the Required Owner Trust Spread
Account Amount for such Transfer Date, pay the amount of such excess to the
Certificateholder pursuant to the Indenture.
SECTION 4.2 Records. The Administrator shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall be accessible for
inspection by the Issuer, the Owner Trustee, the Indenture Trustee and the
Depositor at any time during normal business hours.
SECTION 4.3 [Reserved]
SECTION 4.4 Additional Information To Be Furnished to
Issuer. The Administrator shall furnish to the Issuer from time to time such
additional information regarding the Collateral as the Issuer shall
reasonably request, including notification of Noteholders pursuant to Section
4.1(a) hereof.
SECTION 4.5 Independence of Administrator. For all
purposes of this Agreement, the Administrator shall be an independent
contractor and shall not be subject to the supervision of the Issuer or the
Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by the
Issuer or the Owner Trustee, as the case may be, the Administrator shall have
no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
SECTION 4.6 No Joint Venture. Nothing contained in
this Agreement shall (i) constitute the Administrator and either of the
Issuer or the Owner Trustee as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate entity,
(ii) be construed to impose any liability as such on any of them or (iii) be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
SECTION 4.7 Other Activities of Administrator. (a)
Nothing herein shall prevent the Administrator or its affiliates from
engaging in other businesses or, in its sole discretion, from acting in a
similar capacity as an administrator for any other person or entity even
though such person or entity may engage in business activities similar to
those of the Issuer, the Owner Trustee or the Indenture Trustee.
(b) The Administrator and its affiliates may
generally engage in any kind of business with any person party to a
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Basic Document, any of its affiliates and any person who may do
business with or own securities of any such person or any of its
affiliates, without any duty to account therefor to the Issuer, the
Owner Trustee or the Indenture Trustee.
SECTION 4.8 Net Deposits. As an administrative
convenience, so long as Chase USA is the Administrator and the
Certificateholder, the Administrator will be permitted to make the deposit of
amounts with respect to the Series Certificate for or with respect to any
Monthly Period net of distributions to be made to the Certificateholder with
respect to such Monthly Period. The Administrator, however, will account to
the Owner Trustee, the Indenture Trustee and the Noteholders as if the
amounts paid to the Certificateholder were paid pursuant to the Indenture.
ARTICLE V
TERMINATION
SECTION 5.1 Term of Agreement; Resignation and Removal
of Administrator. This Agreement shall continue in force until (i) the
termination of the Issuer and (ii) the satisfaction and discharge of the
Indenture in accordance with Section 4.1 of the Indenture, upon which event
this Agreement shall automatically terminate.
(a) Subject to subsections 5.1(d) and (e), the
Administrator may resign its duties hereunder by providing the Issuer
and the Owner Trustee with at least 60 days' prior written notice.
(b) Subject to subsections 5.1(d) and (e), the
Issuer may remove the Administrator without cause by providing the
Administrator with at least 60 days' prior written notice;
provided however, that if any Notes are outstanding at the time of the
removal, the Rating Agency Condition shall have first been satisfied
in connection with such removal.
(c) Subject to subsections 5.1(d) and (e), at
the sole option of the Issuer, the Administrator may be removed
immediately upon written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
(i) the Administrator shall default in
the performance of any of its duties under this Agreement
and, after notice of such default, shall not cure such
default within 10 days (or, if such default cannot be cured
in such time, shall not give within ten days such assurance
of cure as shall be reasonably satisfactory to the Issuer);
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(ii) a court having jurisdiction in the
premises shall enter a decree or order for relief, and such
decree or order shall not have been vacated within 60 days,
in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official for the Administrator or any substantial
part of its property or order the winding-up or liquidation
of its affairs; or
(iii) the Administrator shall commence a
voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of
any substantial part of its property, shall make any general
assignment for the benefit of creditors or shall fail
generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clause (ii) or (iii) of this subsection 5.1(c) shall occur, it shall give
written notice thereof to the Issuer, the Owner Trustee and the Indenture
Trustee within seven days after the happening of such event.
(d) No resignation or removal of the
Administrator pursuant to this Section shall be effective until (i) a
successor Administrator shall have been appointed by the Issuer and
(ii) such successor Administrator shall have agreed in writing to be
bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(e) The appointment of any successor
Administrator shall be effective only after the satisfaction of the
Rating Agency Condition with respect thereto.
(f) A successor Administrator shall execute,
acknowledge and deliver a written acceptance of its appointment
hereunder to the resigning Administrator and to the Issuer.
Thereupon the resignation or removal of the resigning Administrator
shall become effective, and the successor Administrator shall have
all the rights, powers and duties of the Administrator under the
Indenture. The successor Administrator shall mail a notice of its
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succession to the Noteholders and the Certificateholder. The
resigning Administrator shall promptly transfer or cause to be
transferred all property and any related agreements, documents and
statements held by it as Administrator to the successor Administrator
and the resigning Administrator shall execute and deliver such
instruments and do other things as may reasonably be required for
fully and certainly vesting in the successor Administrator all
rights, powers, duties and obligations hereunder.
(g) In no event shall a resigning Administrator
be liable for the acts or omissions of any successor Administrator
hereunder.
(h) In the exercise or administration of its
duties hereunder and under the other Basic Documents, the
Administrator may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them, and the
Administrator 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 Administrator with due care.
SECTION 5.2 Action upon Termination, Resignation or
Removal. Promptly upon the effective date of termination of this Agreement
pursuant to subsection 5.1(a) or the resignation or removal of the
Administrator pursuant to subsection 5.1 (b) or (c), respectively, the
Administrator shall be entitled to be paid all fees and reimbursable expenses
accruing to it to the date of such termination, resignation or removal. The
Administrator shall forthwith upon termination pursuant to subsection 5.1(a)
deliver to the Issuer all property and documents of or relating to the
Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to subsection 5.1(b) or
(c), respectively, the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
SECTION 5.3 Acquisition of Owner Trust Estate. If
Chase USA exercises its option to accept retransfer of the Series Certificate
pursuant to Section 4 of the Series Supplement, the Depositor shall (a)
acquire the Series Certificate and all rights related thereto, which
acquisition shall be effective as of the date on which such retransfer
occurs, (b) deliver notice of such acquisition to the Indenture Trustee on or
prior to the related Transfer Date, (c) deposit in the Note Distribution
Account on or prior to the related Transfer Date an amount equal to the Note
Principal Balance and all other amounts payable to the Noteholders hereunder
including accrued interest on the Notes and (d) succeed to all interests in
and to the Issuer.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Notices. Any notice, report or other
communication given hereunder shall be in writing and addressed as follows:
if to the Issuer or the Owner Trustee, to
Chase Credit Card Owner Trust 1999-3
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
with a copy to:
Richards, Layton & Finger
One Rodney Square
Wilmington, DE 19899
Attention: Eric Mazie
if to the Administrator, to
Chase Manhattan Bank USA, National Association
802 Delaware Avenue
Wilmington, DE 19801
Attention: [ ]
if to the Indenture Trustee, to
The Bank of New York
101 Barclay Street, Fl. 12 East
New York, New York 10286
Attention: Corporate Trust Administration
or to such other address as any party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above, except that
notices to the Indenture Trustee are effective only upon receipt.
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SECTION 6.2 Amendments. This Agreement may be amended
from time to time by a written amendment duly executed and delivered by the
Issuer, the Administrator and the Depositor, with the written consent of the
Indenture Trustee and without the consent of the Noteholders or the
Certificateholder, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholder; provided, however, that a copy thereof shall have been
delivered to the Note Rating Agencies and that such amendment will not (i) as
evidenced by an Officer's Certificate of the Depositor addressed and
delivered to the Owner Trustee and the Indenture Trustee, materially and
adversely affect the interests of any Noteholder or the Certificateholder and
(ii) as evidenced by an Opinion of Counsel addressed to the Owner Trustee and
the Indenture Trustee, cause the Issuer to be classified as an association
(or a publicly traded partnership) taxable as a corporation for federal
income tax purposes. This Agreement may also be amended by the Issuer, the
Administrator and the Depositor with the written consent of the Indenture
Trustee and the Holders of Notes evidencing a majority in the Outstanding
Amount of the Notes for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of Noteholders or the Certificateholder;
provided, however, that, a copy thereof shall have been delivered to the Note
Rating Agencies and that without the consent of the holders of all of the
Notes then Outstanding, no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on the Series Certificate or distributions that are required to be
made for the benefit of the Noteholders or (ii) reduce the aforesaid
percentage of the Holders of Notes which are required to consent to any such
amendment, without the consent of the Holders of all the Outstanding Notes.
It shall not be necessary for the consent of 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.
SECTION 6.3 Protection of Title to Owner Trust.
(a) The Depositor shall take all actions
necessary and the Issuer shall cooperate with the Depositor, if
applicable, to perfect, and maintain perfection of, the interests of
the Issuer in the Series Certificate. The Depositor shall execute
and file and cause to be executed and filed such financing statements
and continuation statements, all in such manner and in such places as
may be required by law fully to perfect, maintain, and protect the
interest of the Issuer in the Series Certificate and in the proceeds
thereof and the interest of the Indenture Trustee in the Owner Trust
Estate and the proceeds thereof. The Depositor shall deliver (or
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cause to be delivered) to the Owner Trustee and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(b) The Depositor shall not change its name,
identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed in
accordance with paragraph (a) above or otherwise seriously misleading
within the meaning of 9-402(7) of the UCC (regardless of whether such
a filing was ever made), unless it shall have given the Owner Trustee
and the Indenture Trustee at least five days' prior written notice
thereof and, if applicable, shall have timely filed appropriate
amendments to any and all previously filed financing statements or
continuation statements (so that the interest of the Issuer or the
Indenture Trustee is not adversely affected).
(c) Each of the Depositor and the Administrator
shall have an obligation to give the Owner Trustee and the Indenture
Trustee at least 60 days' prior written notice of any relocation of
its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement
or of any new financing statement (regardless of whether such a
filing was ever made) and shall promptly, if applicable, file any
such amendment.
(d) The Administrator shall permit the
Indenture Trustee and its agents at any time following reasonable
notice and during normal business hours to inspect, audit and make
copies of and abstracts from the Administrator's records regarding
the Series Certificate.
(e) The Administrator shall, to the extent
required by applicable law, cause the Notes to be registered with the
Commission pursuant to Section 12(b) or Section 12(g) of the Exchange
Act within the time periods specified in such sections.
SECTION 6.4 Successors and Assigns. This Agreement may
not be assigned by the Administrator unless such assignment is previously
consented to in writing by the Issuer and the Owner Trustee and subject to
satisfaction of the Rating Agency Condition with respect thereto. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by the Administrator without the consent of the Issuer or the Owner
Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator, provided
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that such successor organization executes and delivers to the Issuer, the
Owner Trustee and the Indenture Trustee an agreement in which such
corporation or other organization agrees to be bound hereunder by the terms
of said assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
SECTION 6.5 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6.6 Headings. The section headings hereof have
been inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement.
SECTION 6.7 Counterparts. This Agreement may be
executed in counterparts, each of which when so executed shall together
constitute but one and the same agreement.
SECTION 6.8 Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall 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 6.9 Not Applicable to Chase Manhattan Bank USA,
National Association in Other Capacities. Nothing in this Agreement shall
affect any obligation Chase Manhattan Bank USA, National Association may have
in any other capacity.
SECTION 6.10 Limitation of Liability of Owner Trustee,
Indenture Trustee and Administrator. (a) Notwithstanding anything contained
herein to the contrary, this instrument has been signed by Wilmington Trust
Company not in its individual capacity but solely as Owner Trustee for the
Chase Credit Card Owner Trust 1999-3 and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall
be had solely to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been signed by The Bank of New York, not in its
individual capacity but solely as Indenture Trustee, and in no event shall
The Bank of New York have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer.
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(c) No recourse under any obligation, covenant or agreement
of the Issuer contained in this Agreement shall be had against any agent of
the Issuer (including the Administrator) as such by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute
or otherwise; it being expressly agreed and understood that this Agreement is
solely an obligation of the Issuer as a Delaware common law trust, and that
no personal liability whatever shall attach to or be incurred by any agent of
the Issuer (including the Administrator), as such, under or by reason of any
of the obligations, covenants or agreements of the Issuer contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by the Issuer of any such obligations, covenants or agreements,
either at common law or at equity, or by statute or constitution, of every
such agent is hereby expressly waived as a condition of and in consideration
for the execution of this Agreement.
SECTION 6.11 Third-Party Beneficiary. Each of the Owner
Trustee and the Indenture Trustee is a third-party beneficiary to this
Agreement and is entitled to the rights and benefits hereunder and may
enforce the provisions hereof as if it were a party hereto. The
Administrator agrees to compensate and indemnify the Indenture Trustee
pursuant to Section 6.7 of the Indenture.
SECTION 6.12 Nonpetition Covenants.
(a) Notwithstanding any prior termination of
this Agreement, the Depositor shall not at any time with respect to
the Issuer or the Master Trust, acquiesce, petition or otherwise
invoke or cause the Issuer or the Master Trust to invoke the process
of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer or the Master Trust under any
Federal or state bankruptcy, insolvency or similar law or appointing
a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or the Master
Trust or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuer or the Master
Trust; provided, however, that this subsection 6.12(a) shall not
operate to preclude any remedy described in Article V of the
Indenture.
(b) Notwithstanding any prior termination of
this Agreement, the Issuer shall not at any time with respect to the
Master Trust, acquiesce, petition or otherwise invoke or cause the
Master Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against
the Master Trust under any Federal or state bankruptcy, insolvency or
similar law or appointing a receiver, conservator, liquidator,
assignee, trustee, custodian, sequestrator or other similar official
-22-
<PAGE>
of the Master Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Master
Trust; provided, however, that this subsection 6.12(b) shall not
operate to preclude any remedy described in Article V of the
Indenture.
SECTION 6.13 Liability of Administrator.
Notwithstanding any provision of this Agreement, the Administrator shall not
have any obligations under this Agreement other than those specifically set
forth herein, and no implied obligations of the Administrator shall be read
into this Agreement. Neither the Administrator nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted
to be taken in good faith by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct
and in no event shall the Administrator be liable under or in connection with
this Agreement for indirect, special, or consequential losses or damages of
any kind, including lost profits, even if advised of the possibility thereof
and regardless of the form of action by which such losses or damages may be
claimed. Without limiting the foregoing, the Administrator may (a) consult
with legal counsel (including counsel for the Issuer), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts and (b) shall incur no
liability under or in respect of this Agreement by acting upon any notice
(including notice by telephone), consent, certificate or other instrument or
writing (which may be by facsimile) believed by it to be genuine and signed
or sent by the proper party or parties.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
CHASE CREDIT CARD OWNER TRUST
1999-3
By: WILMINGTON TRUST COMPANY
not in its individual capacity
but solely
as Owner Trustee
By:
---------------------
Name:
Title:
CHASE MANHATTAN BANK, USA,
NATIONAL ASSOCIATION
as Administrator
By:
---------------------
Name:
Title:
Acknowledged and Agreed:
THE BANK OF NEW YORK
not in its individual capacity
but solely
as Indenture Trustee
By:
---------------------
Name:
Title:
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<PAGE>
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity but solely as
owner trustee ("Owner Trustee") for the Chase Credit Card Owner Trust 1999-3
("Trust"), does hereby make, constitute and appoint CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION as Administrator under the Administration Agreement (as
defined below), and its agents and attorneys, as Attorneys-in-Fact to execute
on behalf of the Owner Trustee or the Trust all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of
the Owner Trustee or the Trust to prepare, file or deliver pursuant to the
Basic Documents (as defined in the Indenture dated as of September 29, 1999
between the Trust and the Bank of New York, as Indenture Trustee), including,
without limitation, to appear for and represent the Owner Trustee and the
Trust in connection with the preparation, filing and audit of federal, state
and local tax returns pertaining to the Trust, and with full power to perform
any and all acts associated with such returns and audits that the Owner
Trustee could perform, including without limitation, the right to distribute
and receive confidential information, defend and assert positions in response
to audits, initiate and defend litigation, and to execute waivers of
restriction on assessments of deficiencies, consents to the extension of any
statutory or regulatory time limit, and settlements. For the purpose of this
Power of Attorney, the term "Administration Agreement" means the Deposit and
Administration Agreement dated as of September 29, 1999 among Wilmington
Trust Company, not in its individual capacity but solely as Owner Trustee for
the Trust and Chase Manhattan Bank USA, National Association, as
Administrator, and acknowledged and agreed by The Bank of New York, as
Indenture Trustee, as such may be amended from time to time.
<PAGE>
All powers of attorney for this purpose heretofore filed or executed
by the Owner Trustee are hereby revoked.
EXECUTED this 29th day of September, 1999.
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely
as Owner Trustee for the Chase
Credit Card Owner Trust 1999-3
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<PAGE>
By:
---------------------
Name:
Title:
-26-
