FORM OF POOLING AND
SERVICING AGREEMENT
(GRANTOR TRUST)
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CHASE MANHATTAN BANK USA, N.A.,
as Seller and Servicer
and
[---------------------------------------]
as Trustee
on behalf of the Certificateholders
and as Collateral Agent
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POOLING AND SERVICING AGREEMENT
Dated as of __________ __, 199_
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$------------------------
Chase Manhattan Auto Grantor Trust 199_-_
_____% Automobile Loan Pass-Through Certificates, Class A
_____% Automobile Loan Pass-Through Certificates, Class B
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions....................................................................................... 1
SECTION 1.2. Usage of Terms.................................................................................... 18
[SECTION 1.3. [Simple Interest Method]; Allocations............................................................ 19
ARTICLE II
THE TRUST CONVEYANCE OF THE RECEIVABLES
SECTION 2.1. Creation of the Trust............................................................................. 20
SECTION 2.2. Conveyance of Receivables......................................................................... 20
ARTICLE III
THE RECEIVABLES
SECTION 3.1. Representations and Warranties of Seller;
Conditions Relating to Receivables............................................................ 22
SECTION 3.2. Repurchase Upon Breach or Failure of a
Condition..................................................................................... 27
SECTION 3.3. Custody of Receivable Files....................................................................... 27
SECTION 3.4. Duties of Servicer as Custodian................................................................... 28
SECTION 3.5. Instructions; Authority to Act.................................................................... 29
SECTION 3.6. Custodian's Indemnification....................................................................... 29
SECTION 3.7. Effective Period and Termination.................................................................. 29
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1. Duties of Servicer................................................................................ 31
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Section Page
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SECTION 4.2. Collection of Receivable Payments;
Refinancing................................................................................... 31
SECTION 4.3. Realization Upon Receivables...................................................................... 32
SECTION 4.4. Non-Credit Related Extensions to Obligors......................................................... 33
SECTION 4.5. Maintenance of Security Interests in
Financed Vehicles............................................................................. 34
SECTION 4.6. Covenants of Servicer............................................................................. 35
SECTION 4.7. Purchase of Receivables Upon Breach............................................................... 36
SECTION 4.8. Servicing Fee..................................................................................... 36
SECTION 4.9. Servicer's Certificate............................................................................ 37
SECTION 4.10. Annual Statement as to Compliance................................................................ 37
SECTION 4.11. Annual Audit Report.............................................................................. 38
SECTION 4.12. Access by Certificateholders to Certain
Documentation and Information Regarding
Receivables...................................................................................... 39
SECTION 4.13. Reports to Certificateholders and the
Rating Agencies.............................................................................. 39
SECTION 4.14. Reports to the Securities and Exchange
Commission................................................................................... 40
ARTICLE V
ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 5.1. Establishment of the Accounts..................................................................... 41
SECTION 5.2. Collections....................................................................................... 42
SECTION 5.3. Advances.......................................................................................... 42
SECTION 5.4. Additional Deposits............................................................................... 43
SECTION 5.5. Distributions..................................................................................... 44
SECTION 5.6. Reserve Account; Assignment of Retained
Yield to Collateral Agent..................................................................... 45
SECTION 5.7. Net Deposits...................................................................................... 48
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Section Page
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SECTION 5.8. Statements to Certificateholders................................................................. 48
ARTICLE VI
THE CERTIFICATES
SECTION 6.1. The Certificates................................................................................. 50
SECTION 6.2. Execution, Authentication and Delivery of
Certificates................................................................................. 50
SECTION 6.3. Registration of Transfer and Exchange of
Certificates................................................................................. 51
SECTION 6.4. Mutilated, Destroyed, Lost, or Stolen
Certificates................................................................................. 53
SECTION 6.5. Persons Deemed Owners............................................................................ 53
SECTION 6.6. Access to List of Certificateholders' Names
and Addresses................................................................................ 53
SECTION 6.7. Maintenance of Office or Agency.................................................................. 54
SECTION 6.8. Book-Entry Certificates.......................................................................... 54
SECTION 6.9. Notices to Clearing Agency....................................................................... 55
SECTION 6.10. Definitive Certificates.......................................................................... 55
SECTION 6.11. Appointment of Paying Agent...................................................................... 56
SECTION 6.12. Authenticating Agent............................................................................. 57
SECTION 6.13. Actions of Certificateholders.................................................................... 59
ARTICLE VII
THE SELLER
SECTION 7.1. Representations of Seller........................................................................ 60
SECTION 7.2. Liability of Seller; Indemnities................................................................. 61
SECTION 7.3. Merger or Consolidation of Seller................................................................ 62
SECTION 7.4. Limitation on Liability of Seller and
Others....................................................................................... 62
SECTION 7.5. Seller May Own Certificates...................................................................... 62
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ARTICLE VIII
THE SERVICER
Section Page
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SECTION 8.1. Representations of Servicer...................................................................... 63
SECTION 8.2. Liability of Servicer; Indemnities............................................................... 64
SECTION 8.3. Merger or Consolidation of Servicer.............................................................. 65
SECTION 8.4. Limitation on Liability of Servicer and
Others....................................................................................... 65
SECTION 8.5. Servicer Not To Resign........................................................................... 67
SECTION 8.6. Delegation of Duties............................................................................. 67
ARTICLE IX
DEFAULT
SECTION 9.1. Events of Servicing Termination.................................................................. 68
SECTION 9.2. Trustee to Act; Appointment of Successor......................................................... 69
SECTION 9.3. Notification to Certificateholders............................................................... 70
SECTION 9.4. Waiver of Past Defaults.......................................................................... 70
ARTICLE X
THE TRUSTEE
SECTION 10.1. Duties of Trustee................................................................................ 72
SECTION 10.2. Trustee's Assignment of Repurchased
Receivables and Trustee's Certificate........................................................ 74
SECTION 10.3. Certain Matters Affecting the Trustee............................................................ 74
SECTION 10.4. Trustee Not Liable for Certificates or
Receivables.................................................................................. 75
SECTION 10.5. Trustee May Own Certificates..................................................................... 77
SECTION 10.6. Trustee's Fees and Expenses...................................................................... 77
SECTION 10.7. Indemnity of Trustee............................................................................. 77
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Section Page
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SECTION 10.8. Eligibility Requirements for Trustee............................................................. 78
SECTION 10.9. Resignation or Removal of Trustee................................................................ 78
SECTION 10.10. Successor Trustee................................................................................ 79
SECTION 10.11. Merger or Consolidation of Trustee............................................................... 79
SECTION 10.12. Appointment of Co-Trustee or Separate
Trustee...................................................................................... 80
SECTION 10.13. Representations and Warranties of
Trustee...................................................................................... 81
SECTION 10.14. Tax Returns...................................................................................... 82
SECTION 10.15. Trustee May Enforce Claims Without
Possession of Certificates.................................................................... 82
SECTION 10.16. Suits for Enforcement............................................................................ 83
SECTION 10.17. Maintenance of Office or Agency.................................................................. 83
SECTION 10.18 [_____________________________
__________], as Collateral Agent............................................................. 83
ARTICLE XI
TERMINATION
SECTION 11.1. Termination of the Trust......................................................................... 84
SECTION 11.2. Optional Purchase of All Receivables............................................................. 85
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. Amendment........................................................................................ 86
SECTION 12.2. Protection of Title to Trust..................................................................... 87
SECTION 12.3. Limitation on Rights of
Certificateholders........................................................................... 89
SECTION 12.4. GOVERNING LAW.................................................................................... 90
SECTION 12.5. Notices.......................................................................................... 90
SECTION 12.6. Severability of Provisions....................................................................... 91
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Section Page
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SECTION 12.7. Assignment; References to Chase USA.............................................................. 91
SECTION 12.8. Certificates Nonassessable and Fully Paid........................................................ 91
SECTION 12.9. Third-Party Beneficiaries........................................................................ 92
SECTION 12.10. Counterparts..................................................................................... 92
SECTION 12.11. Tax Matters...................................................................................... 92
SCHEDULES
Schedule A - List of Receivables
Schedule B - Location of Receivables
EXHIBITS
Exhibit A-1 - Form of Class A Certificate
Exhibit A-2 - Form of Class B Certificate
Exhibit B - Form of Depositary Receipt Agreement
Exhibit C-1 - Trustee's Certificate pursuant to Section
11.2 (assignment to Seller)
Exhibit C-2 - Trustee's Certificate pursuant to Section
11.2 (assignment to Servicer)
Exhibit D - Form of Servicer's Certificate
Exhibit E - Form of Certificateholder Report
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This Pooling and Servicing Agreement, dated as of __________
__, 199_ (as amended, supplemented or otherwise modified and in effect from time
to time, this "Agreement") is made with respect to the formation of the Chase
Manhattan Auto Grantor Trust 199_-_ (the "Trust"), between CHASE MANHATTAN BANK
USA, N.A., a national banking association ("Chase USA" and the "Seller" and the
"Servicer" in its respective capacities as such), and [_______________________],
a national banking association, as trustee (in such capacity, the "Trustee")
and as collateral agent with respect to the Reserve Account and the Retained
Yield (in such capacity, the "Collateral Agent").
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,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Accounts" mean, collectively, the Collection Account and
the Distribution Accounts.
"Accrued Interest" on a Receivable, as of any date of
determination, means that amount of interest accrued on the Principal Balance at
the APR but not paid by or on behalf of the Obligor.
"Advance" as of a Record Date means any payment made by the
Servicer pursuant to Section 5.3.
"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.
"Aggregate Net Losses" means, for any Distribution Date, the
amount equal to (i) the aggregate principal balance of
the Receivables that became Defaulted Receivables during the related Collection
Period minus (ii) the Liquidation Proceeds allocable to principal collected
during such Collection Period with respect to any Defaulted Receivables.
"Amount Financed" in respect of a Receivable means the amount
advanced under the Receivable toward the purchase price of the Financed Vehicle
and related costs.
"Assertion" has the meaning specified in Section 4.11.
"Authenticating Agent" has the meaning specified in Section
6.12 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 Trustee who is
authorized to act on behalf of the Trustee and who is identified as such on the
list of authorized officers delivered by the Trustee to the Seller and the
Servicer.
"Available Interest" means, for any Distribution Date, that
portion of Collections on the Receivables received during the related Collection
Period allocated to interest, all Advances made by the Servicer with respect to
such Distribution Date and, to the extent attributable to interest, the
Repurchase Amount received with respect to each Receivable repurchased by the
Seller or purchased by the Servicer under an obligation that arose during the
related Collection Period.
"Available Principal" means, for any Distribution Date, that
portion of Collections on the Receivables received during the related Collection
Period allocated to the principal balance of the Receivables, and, to the extent
attributable to principal, the Repurchase Amount received with respect to each
Receivable repurchased by the Seller or purchased by the Servicer under an
obligation that arose during the related Collection Period.
"Available Reserve Account Amount" shall mean, for each
Distribution Date, an amount equal to the lesser of (i) the amount on deposit in
the Reserve Account (exclusive of Investment Earnings thereon) and (ii) the
Specified Reserve Account Balance with respect to such Distribution Date.
"Average Delinquency Percentage" means, for any Distribution
Date, the average of the Delinquency Percentages for such Distribution Date and
the preceding two (2) Distribution Dates.
"Average Net Loss Ratio" means, for any Distribution Date, the
average of the Net Loss Ratios for such Distribution Date and the preceding two
(2) Distribution Dates.
"Base Rate" means, with respect to each Receivable, the
weighted average interest rate on the Receivable equal to (i) the
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Class A Percentage multiplied by the sum of the Class A Pass-Through Rate and
the Servicing Fee Rate, plus (ii) the Class B Percentage multiplied by the sum
of the Class B Pass-Through Rate and the Servicing Fee Rate.
"Book-Entry Certificates" means beneficial interests in the
Certificates described in Section 6.8, the ownership and transfers of which
shall be made through book entries by a Clearing Agency or Foreign Clearing
Agency as described in Section 6.8.
"Business Day" means a day, other than a Saturday or a Sunday,
on which the Trustee and banks located in New York, New York, Wilmington,
Delaware and [__________________] are open for the purpose of conducting a
commercial banking business.
"Cedel" means Cedel Bank, Societe Anonyme.
"Certificate Owner" means, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, 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.
"Certificate Register" means the register maintained pursuant
to Section 6.3.
"Certificateholders" or "Holders" means, collectively, the
Class A Certificateholders and the Class B Certificateholders.
"Certificates" means, collectively, the Class A Certificates
and the Class B Certificates.
"Chase" means, The Chase Manhattan Bank, a New York banking
corporation.
"Chase Direct Receivable" means a Receivable originated by
Chase directly with an Obligor without the involvement of a Dealer.
"Class A Certificate" means a certificate executed on behalf
of the Trust and authenticated by the Trustee substantially in the form of
Exhibit A-1 attached hereto.
"Class A Certificate Balance" means, at any date of
determination, the Original Class A Certificate Balance, as reduced by all
amounts allocable to principal on the Class A Certificates distributed to Class
A Certificateholders prior to such date.
"Class A Certificateholder" or "Class A Holder" means the
Person in whose name a Class A Certificate is registered in the Certificate
Register, except that, solely for the purpose of
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giving any consent, request, waiver or demand pursuant to this Agreement, the
interest evidenced by any Class A Certificate registered in the name of the
Seller, the Servicer, or any Person actually known to an Authorized Officer of
the Trustee to be an Affiliate of the Seller or the Servicer, shall not be taken
into account in determining whether the requisite percentage necessary to effect
any such consent, request, waiver or demand shall have been obtained.
"Class A Distribution Account" means the account established
and maintained as such pursuant to Section 5.1(a).
"Class A Interest Carryover Shortfall" means, (a) for the
initial Distribution Date, zero, and (b) for any other Distribution Date, the
excess of Class A Monthly Interest for the preceding Distribution Date and any
outstanding Class A Interest Carryover Shortfall for such preceding Distribution
Date over the amount in respect of interest that is actually deposited in the
Class A Distribution Account on such preceding Distribution Date, plus 30 days
of interest on such excess, to the extent permitted by law, at the Class A
Pass-Through Rate.
"Class A Interest Distributable Amount" means, for any
Distribution Date, the sum of Class A Monthly Interest for such Distribution
Date and the Class A Interest Carryover Shortfall for such Distribution Date.
"Class A Monthly Interest" means, for any Distribution Date,
one-twelfth of the Class A Pass-Through Rate multiplied by the Class A
Certificate Balance as of the preceding Distribution Date (after giving effect
to any payments made on such preceding Distribution Date) or, in the case of the
first Distribution Date, as of the Closing Date.
"Class A Monthly Principal" means, for any Distribution Date,
the sum of (a) the Class A Percentage of the Available Principal for such
Distribution Date and (b) the Class A Percentage of Aggregate Net Losses with
respect to the related Collection Period.
"Class A Pass-Through Rate" means ____% per annum.
"Class A Percentage" means, a fraction (expressed as a
percentage with eight decimal places), the numerator if which is the Original
Class A Certificate Balance and the denominator of which is the Original
Certificate Balance.
"Class A Pool Factor" means, with respect to any Distribution
Date, the Class A Certificate Balance as of such Distribution Date (after giving
effect to any payments to be made on such Distribution Date), divided by the
Original Class A Certificate Balance, expressed as a eight-digit decimal.
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"Class A Principal Carryover Shortfall" means, for any
Distribution Date, the excess of Class A Monthly Principal for the preceding
Distribution Date and any outstanding Class A Principal Carryover Shortfall for
such preceding Distribution Date over the amount in respect of principal that is
actually deposited in the Class A Distribution Account on such preceding
Distribution Date.
"Class A Principal Distributable Amount" means, for any
Distribution Date, the sum of Class A Monthly Principal for such Distribution
Date and, in the case of any Distribution Date other than the initial
Distribution Date, the Class A Principal Carryover Shortfall for such
Distribution Date. In addition, on the Final Scheduled Distribution Date, the
Class A Principal Distributable Amount shall include any additional amount
required to reduce the outstanding aggregate principal balance of the Class A
Certificates to zero.
"Class B Certificate" means a certificate executed on behalf
of the Trust and authenticated by the Trustee substantially in the form of
Exhibit A-2 hereto.
"Class B Certificate Balance" means, at any time, the Original
Class B Certificate Balance, as reduced by all amounts allocable to principal on
the Class B Certificates distributed to Class B Certificateholders prior to such
time.
"Class B Certificateholder" or "Class B Holder" means the
Person in whose name a Class B Certificate shall be registered in the
Certificate Register, except that, solely for the purpose of giving any consent,
request or waiver pursuant to this Agreement, the interest evidenced by any
Class B Certificate registered in the name of the Seller, the Servicer, or any
Person actually known to an Authorized Officer of the Trustee to be an Affiliate
of the Seller or the Servicer, shall not be taken into account in determining
whether the requisite percentage necessary to effect any such consent, request
or waiver shall have been obtained.
"Class B Distribution Account" means the account established
and maintained as such pursuant to Section 5.1(a).
"Class B Interest Carryover Shortfall" means, (a) for the
initial Distribution Date, zero, and (b) for any other Distribution Date, the
excess of Class B Monthly Interest for the preceding Distribution Date and any
outstanding Class B Interest Carryover Shortfall for such preceding Distribution
Date over the amount in respect of interest actually deposited in the Class B
Distribution Account on such preceding Distribution Date, plus 30 days of
interest on such excess, to the extent permitted by law, at the Class B
Pass-Through Rate.
"Class B Interest Distributable Amount" means, with respect
to any Distribution Date, the sum of Class B Monthly
5
Interest for such Distribution Date and the Class B Interest Carryover Shortfall
for such Distribution Date.
"Class B Monthly Interest" means, for any Distribution Date,
one-twelfth of the Class B Pass-Through Rate multiplied by the Class B
Certificate Balance as of the preceding Distribution Date (after giving effect
to any payments made on such preceding Distribution Date) or, in the case of the
first Distribution Date, as of the Closing Date, which amount includes any
amounts due with respect to the Class B Stripped Coupon.
"Class B Monthly Principal" means, with respect to any
Distribution Date, the sum of (a) the Class B Percentage of the Available
Principal for such Distribution Date and (b) the Class B Percentage of Aggregate
Net Losses with respect to the related Collection Period.
"Class B Pass-Through Rate" means ____% per annum.
"Class B Percentage" means, a fraction (expressed as a
percentage with eight decimal places), the numerator if which is the Original
Class B Certificate Balance and the denominator of which is the Original
Certificate Balance.
"Class B Pool Factor" means, with respect to any Distribution
Date, the Class B Principal Balance as of such (after giving effect to any
payments to be made on such Distribution Date), divided by the Original Class B
Certificate Balance, expressed as a eight-digit decimal.
"Class B Principal Carryover Shortfall" means, for any
Distribution Date, the excess of Class B Monthly Principal for the preceding
Distribution Date and any outstanding Class B Principal Carryover Shortfall for
such preceding Distribution Date over the amount in respect of principal
actually deposited in the Class B Distribution Account for such preceding
Distribution Date.
"Class B Principal Distributable Amount" means, for any
Distribution Date, the sum of Class B Monthly Principal for such Distribution
Date and, in the case of any Distribution Date other than the initial
Distribution Date, the Class B Principal Carryover Shortfall for such
Distribution Date. In addition, on the Final Scheduled Distribution Date, the
Class B Principal Distributable Amount will include any additional amount
required to reduce the outstanding aggregate principal balance of the Class B
Certificates to zero.
"Class B Stripped Coupon" means, with respect to each
Receivable, the amount of interest allocable to a Class B Certificateholder in
excess of such Class B Certificateholder's pro rata percentage interest in the
interest payable on the Receivable at the Base Rate.
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"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 ____________, ______.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" means
[_______________________________________], a national banking association, in
its capacity as collateral agent for the benefit of the Certificateholders with
respect to the Reserve Account and the Retained Yield.
"Collection Account" means the account established and
maintained pursuant to Section 5.1(a).
"Collection Period" means each calendar month beginning
__________ __, ____ until the Trust shall terminate pursuant to Article XI.
"Collections" means all collections in respect of Receivables.
"Contract Rate" of a Receivable means the annual rate of
interest stated in such Receivable.
"Cutoff Date" means __________ __, ____.
"Dealer" means the dealer which sold a Financed Vehicle
related to a Dealer Receivable and which originated or assisted in the
origination of such Dealer Receivable relating to such Financed Vehicle under a
Dealer Agreement.
"Dealer Agreement" means any agreement and, if applicable,
assignment under which Dealer Receivables were originated by or through a Dealer
and sold to the Seller or an Affiliate of the Seller.
"Dealer Receivable" means each Receivable which is not a
Direct Receivable.
"Defaulted Receivable" means a Receivable (other than a
Repurchased Receivable) as to which the Servicer has determined based on its
usual collection practices and procedures, during any Collection Period, that
eventual payment in full of the
7
Amount Financed (including accrued interest thereon) is unlikely; provided that
a Receivable shall become a Defaulted Receivable on the last day of the calendar
month in which more than 10% of any scheduled payment becomes 240 days
delinquent, regardless of whether any such determination has been made.
"Definitive Certificates" has the meaning specified in
Section 6.8.
"Delinquency Percentage" means, for any Distribution Date, the
sum of the outstanding principal balances of all Receivables which were 60 days
or more delinquent (including Receivables, which are not Defaulted Receivables,
relating to Financed Vehicles that have been repossessed), as of the close of
business on the last day of the Collection Period immediately preceding such
Distribution Date, determined in accordance with the Servicer's normal
practices, such sum expressed as a percentage of the Pool Balance as of the
close of business on the last day of such Collection Period.
"Delivery" when used with respect to Reserve Account Property
means: (a)(i) with respect to "certificated securities" within the meaning of
Section 8-102(1)(a) of the Relevant UCC not held by the initial Clearing Agency
or other "instruments" within the meaning of Section 9-105(1)(i) of the Relevant
UCC, (A) physical delivery thereof to the Collateral Agent endorsed to, or
registered in the name of, the Collateral Agent or endorsed in blank, or (B)
with respect to a certificated security, possession thereof by a financial
intermediary (as defined in Section 8-313(4) of the Relevant UCC) and the
making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Collateral Agent
and the sending by such financial intermediary of a confirmation of the purchase
of such certificated security by the Collateral Agent, or (ii) with respect to
"certificated securities" within the meaning of Section 8-102(4)(a) of the
Relevant UCC held by the initial Clearing Agency or by a "custodian bank" within
the meaning of Section 8-102(4) of the Relevant UCC (a "Custodian Bank") or a
nominee of either subject to the control of the initial Clearing Agency, the
delivery thereof to the initial Clearing Agency or a Custodian Bank or a nominee
of either subject to the control of the initial Clearing Agency and in bearer
form or endorsed in blank by an appropriate person or registered on the books of
the issuer thereof in the name of the initial Clearing Agency or its Custodian
Bank or a nominee of either and the identification by book-entry or otherwise on
the records of the financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Collateral Agent of such
securities and the making by such financial intermediary of entries on its books
and records identifying such certificated securities as belonging to the
Collateral Agent (all of the foregoing, "Physical Property"), and such
additional or alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any
8
such Account Property to the Collateral Agent, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to any United States Securities Entitlements
that are maintained in the form of entries on the records of the Federal Reserve
System pursuant to Federal book-entry regulations, the following procedures:
entries on the records of a member bank of the Federal Reserve System
identifying such Reserve Account Property as belonging to a Federal Reserve
"depositary" pursuant to applicable Federal regulations and the sending by such
depositary of written confirmation of the purchase of such Reserve Account
Property to the Collateral Agent; the making by such depositary of entries in
its books and records identifying such Reserve Account Property as belonging to,
or otherwise subject to a security interest in favor of, the Collateral Agent;
and such additional or alternative procedures as may hereafter become
appropriate to effect transfer of ownership of any such Reserve Account Property
to the Collateral Agent consistent with changes in applicable law or regulations
or the interpretation thereof; and
(c) with respect to any item of Reserve Account Property that
is an uncertificated security under Article 8 of the Relevant UCC and that is
not governed by clause (b) above, registration on the books and records of the
issuer thereof in the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by the Collateral
Agent or its nominee, agent or custodian of such uncertificated security, the
making by such financial intermediary of entries on its books and records
identifying such uncertificated certificates as belonging to the Collateral
Agent or its nominee, agent or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect transfer of ownership
of any such Reserve Account Property to the Collateral Agent or its nominee or
custodian consistent with changes in applicable law or regulations or the
interpretation thereof.
"Deposit Date" means the Business Day immediately preceding
each Distribution Date.
"Depository Agreement" means the agreement among the Seller,
the Trustee and the initial Clearing Agency, in the form attached hereto as
Exhibit B, as the same may be amended, supplemented or otherwise modified and in
effect from time to time.
"Determination Date" means the 10th calendar day of the month
(or, if such 10th calendar day is not a Business Day, the Business Day preceding
the 10th calendar day of the month) immediately succeeding the related
Collection Period.
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"Direct Receivable" means either a Chase Direct Receivable or
a Receivable originated by the Seller or an Affiliate of the Seller directly
with an Obligor without the involvement of a Dealer.
"Distribution Date" means, in the case of the first Collection
Period, __________, __ 199_, and in the case of every Collection Period
thereafter, the 15th day of the following month, or if the 15th day is not a
Business Day.
"Eligible Deposit Account" means (a) a segregated identifiable
trust account established in the trust department of a Qualified Trust
Institution, which shall, except in the case of the Reserve Account, initially
be Chase, and may be maintained with Chase so long as Chase is a Qualified Trust
Institution; or (b) a separately identifiable deposit account established in the
deposit taking department of a Qualified Institution which shall be, except in
the case of the Reserve Account, Chase so long as Chase is a Qualified
Institution.
"Euroclear Operator" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels, Belgium office, in its capacity as the operator of the
Euroclear system.
"Event of Servicing Termination" means an event specified in
Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Farm Credit Entitlement" means a "Security Entitlement" as
defined in 12 C.F.R. ss.615.5450.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHL Bank Entitlement": means a "Security Entitlement" as
defined in 12 C.F.R. ss. 912.1.
"FHLMC" means the Federal Home Loan Mortgage Corporation or
any successor thereto.
"Final Scheduled Distribution Date" shall be __________ __,
____, or, if such day is not a Business Day, the next succeeding Business Day.
"Financed Vehicle" means, with respect to a Receivable, the
new or used automobile or light-duty truck, together with all accessions
thereto, securing an Obligor's indebtedness under such Receivable.
"Fitch" means Fitch Investors Service L.P. and its
successors and assigns.
10
"FNMA" means the Federal National Mortgage Association or
any successor thereto.
"Foreign Clearing Agency" means Cedel and the Euroclear
Operator.
"Funding Corporation Entitlement" means a "Security
Entitlement" as defined in 12 C.F.R. ss.1511.1.
"HUD Entitlement" means a "Security Entitlement" as defined
in 24 C.F.R. ss. 81.2.
"Investment Earnings" means investment earnings on funds
deposited into the Reserve Account or the Collection Account, as applicable, in
each case, net of losses and investment expenses.
"Late Fees" means any late charges, credit related extension
fees, non-credit related extension fees or other administrative fees or similar
charges allowed by applicable law with respect to the Receivables.
"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.
"Liquidation Proceeds" means, with respect to any Receivable,
(i) insurance proceeds, (ii) the monies collected during a Collection Period
from whatever source on a Defaulted Receivable and (iii) proceeds of a Financed
Vehicle sold after repossession, in each case net of any liquidation expenses
and payments required by law to be remitted to the Obligor.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., a division of
Dun & Bradstreet Corporation, and its successors and assigns.
"Net Loss Ratio" means, for any Distribution Date, an amount,
expressed as a percentage, equal to (i) the Aggregate Net Losses for such
Distribution Date, divided by (ii) the average of the Pool Balances on each of
the related Settlement Dates and the last day of the related Collection Period.
"Obligor" on a Receivable means the purchaser or the
co-purchasers of the Financed Vehicle purchased in part or in whole by the
execution and delivery of such Receivable or any other Person who owes or may be
liable for payments under such Receivable.
"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 Seller or
Servicer, as appropriate.
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"Opinion of Counsel" means a written opinion of counsel (who
may be counsel to the Seller or the Servicer) reasonably acceptable in form and
substance to the Trustee.
"Optional Purchase Percentage" shall be ___%.
"Original Certificate Balance" means the sum of the Original C
lass A Certificate Balance and the Original Class B Certificate Balance.
"Original Class A Certificate Balance" means $__________.
"Original Class B Certificate Balance" means $__________.
"Original Pool Balance" shall be $__________.
"Outstanding Receivable" means, as of the time of reference
thereto, a Receivable that (i) has not been fully paid, (ii) has not become a
Defaulted Receivable, and (iii) has not become a Repurchased Receivable.
"Pass-Through Rate" means either the Class A Pass-Through Rate
or the Class B Pass-Through Rate, as applicable.
"Paying Agent" has the meaning specified in Section 6.11 and
shall initially be the corporate trust office of Chase.
"Permitted Investments" means, at any time, any one or more of
the following obligations, securities (certificated or uncertificated) or
instruments (excluding any security with the "r" symbol attached to its rating):
(i) obligations of the United States of
America or any agency thereof; provided such obligations are backed by
the full faith and credit of the United States of America;
(ii) general obligations of or
obligations guaranteed as to the timely payment of interest and
principal by any state of the United States of America or the
District of Columbia then rated "A-l+" or "AAA" by Standard & Poor's,
"F-1+" and "AAA" by Fitch (if rated by Fitch) and "P-1" or "Aaa" by
Moody's;
(iii) commercial paper which is then rated
"P-1" by Moody's, "F-1+" by Fitch (if rated by Fitch) and "A-l+" by
Standard & Poor's;
(iv) certificates of deposit, demand or
time deposits, federal funds or banker's acceptances issued by any
depository institution or trust company (including the Trustee acting
in its commercial banking capacity)
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incorporated under the laws of the United States or of any state
thereof or incorporated under the laws of a foreign jurisdiction with a
branch or agency located in the United States of America and subject to
supervision and examination by federal or state banking authorities
which short term unsecured deposit obligations of such depository
institution or trust company are then rated "P-1" by Moody's, "F-1+" by
Fitch (if rated by Fitch) and "A-l+" by Standard & Poor's;
(v) demand or time deposits of, or
certificates of deposit issued by, any bank, trust company, savings
bank or other savings institution, provided such deposits or
certificates of deposit are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements
issued by any bank, insurance company or other corporation the short
term unsecured debt or deposits of which are rated "P-1" by Moody's,
"F-1+" by Fitch (if rated by Fitch) and "A-l+" by Standard & Poor's or
the long-term unsecured debt of which are rated "Aaa" by Moody's, "AAA"
by Fitch (if rated by Fitch) and "AAA" by Standard & Poor's;
(vii) repurchase obligations with respect
to any security described in clauses (i) or (ii) herein or any other
security issued or guaranteed by the FHLMC, FNMA or any other agency or
instrumentality of the United States of America which is backed by the
full faith and credit of the United States of America, in either case
entered into with a federal agency or a depository institution or trust
company (acting as principal) described in (iv) above;
(viii) investments in money market funds,
which funds (A) are not subject to any sales, load or other similar
charge; and (B) are rated at least "AAAM" or "AAAM-G" by Standard &
Poor's, "AAAV-1+" by Fitch (if rated by Fitch) and "Aaa" by Moody's;
(ix) such other investments where the
short-term unsecured debt or deposits of the obligor on such
investments are rated "A-l+" by Standard & Poor's, "F-1" by Fitch (if
rated by Fitch) and "P-1" by Moody's; and
(x) any other obligation or security
satisfying the Rating Agency Condition;
provided, however, that with respect to the obligations or securities described
in (i) through (x) above which are considered an asset (i.e., property) of the
Trust, such obligations or securities must mature not later than the Deposit
Date next succeeding the date the trust invested in such obligation or security,
except if the Collection Account is maintained with the Trustee, for investments
in obligations or securities on which the Trustee is to obligor (including
13
repurchase agreements on which the Trustee in its commercial capacity is liable
as principal) which investments may mature on the Distribution Date next
succeeding the date the Trust may invest in such obligation or security.
Permitted Investments include money market mutual funds (so long as such fund
has the ratings specified in clause (viii) hereof), including, without
limitation, the VISTA U.S. Government Money Market Fund or any other fund for
which Chase, the Trustee or an Affiliate thereof serves as an investment
advisor, administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (i) Chase,
[_______________________________________] or an Affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (ii) Chase,
[________________________________] or an Affiliate thereof charges and collects
fees and expenses for services rendered pursuant to this Agreement, and (iii)
services performed for such funds and pursuant to this Agreement may converge at
any time. The Trustee specifically authorizes Chase,
[_______________________________________] or an Affiliate thereof to charge and
collect all fees and expenses from such funds for services rendered to such
funds (but not to exceed investment earnings), in addition to any fees and
expenses Chase USA or [_______________________________________], as applicable,
may charge and collect for services rendered pursuant to this Agreement.
"Person" means a legal person, including any individual,
corporation, 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.
"Physical Property" has the meaning assigned to such terms
in the definition of "Delivery" above.
"Pool Balance" as of any date of determination means the
aggregate Principal Balance of the Receivables, calculated as of the close of
business on such date.
"Principal Balance" of a Receivable, as of any date of
determination, means the Amount Financed minus that portion of all payments
received on or prior to such date allocable to principal. The Principal Balance
of a Defaulted Receivable or a Repurchased Receivable shall be deemed to be
zero, in each case, as of such date.
"Qualified Institution" means a depository institution
organized under the laws of the United States of America or any State thereof or
incorporated under the laws of a foreign jurisdiction with a branch or agency
located in the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities which at all
times has the Required Deposit Rating and, in the case of any
14
such institution organized under the laws of the United States of America, whose
deposits are insured by the FDIC.
"Qualified Trust Institution" means an institution organized
under the laws of the United States of America or any State thereof or
incorporated under the laws of a foreign jurisdiction with a branch or agency
located in the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities which at all
times (i) is authorized under such laws to act as a trustee or in any other
fiduciary capacity, (ii) has not less than one billion dollars in assets under
fiduciary management, and (iii) has a long term deposits rating of not less than
"BBB-" by Standard & Poor's, "BBB-" by Fitch (if rated by Fitch) and "Baa3" by
▇▇▇▇▇'▇.
"Rating Agency" means any of Standard & Poor's, Moody's
or Fitch.
"Rating Agency Condition" means, with respect to any action or
event, that each Rating Agency shall have notified the Seller, the Servicer and
the Trustee, in writing, that such action or event will not result in reduction
or withdrawal of the rating of any outstanding Certificate with respect to which
it is the Rating Agency.
"Receivable" means a retail installment sale contract or
purchase money promissory note or other promissory note and security agreement
executed by an Obligor in respect of a Financed Vehicle, and all proceeds
thereof and payments thereunder (other than interest accrued and unpaid as of
the Cutoff Date), which Receivable shall be identified on Schedule A to this
Agreement.
"Receivable Files" means the documents specified in
Section 3.3.
"Receivables Pool" means the pool of Receivables
included in the Trust.
"Record Date" means, with respect to any Distribution Date,
the Business Day prior to such Distribution Date unless Definitive Certificates
are issued, in which case such Record Date, with respect to such Definitive
Certificates, shall mean the last day of the immediately preceding calendar
month.
"Relevant UCC" means the Uniform Commercial Code as in
effect in the applicable jurisdiction.
"Repurchase Amount" of a Repurchased Receivable or any
Receivable purchased by the Servicer pursuant to Sections 3.2, 4.7 or 11.2 means
the sum, as of the last day of the Collection Period on which such Receivable
becomes such, of the Principal Balance thereof plus the Accrued Interest
thereon; of a Defaulted
15
Receivable means the sum, as of the Settlement Date on which such Receivable is
to be purchased, of the principal balance thereof plus the Accrued Interest
thereon (the accrued interest for the Collection Period in which such Receivable
became a Defaulted Receivable to be calculated at a rate equal to one-twelfth of
the sum of (A) the Weighted Average Pass-Through Rate and (B) the Servicing Fee
Rate).
"Repurchased Receivable" as of any Settlement Date, means a
Receivable repurchased by the Seller pursuant to Section 3.2 or purchased by the
Servicer pursuant to Section 4.7.
"Required Deposit Rating" shall be a short-term certificate of
deposit rating from Moody's of "P-1," from Fitch of "F-1+" (if rated by Fitch)
and from Standard & Poor's of "A- l+," and a long-term unsecured debt rating of
not less than "AA-" by Standard & Poor's, "AA" by Fitch (if rated by Fitch) and
"Aa3" by Moody's.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.6(a).
"Reserve Account Initial Deposit" means an amount equal
to $__________.
"Reserve Account Property" means all amounts and investments
held from time to time in the Reserve Account (whether in the form of deposit
accounts, instruments, certificated securities, book-entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Retained Yield" means, with respect to each Receivable, a
fixed portion of the interest due on such Receivable equal to the difference
between the Contract Rate of such Receivable and the Base Rate of such
Receivable.
"▇▇▇▇▇▇ Mae Entitlement" means a "Security Entitlement"
as defined in 31 C.F.R. SS.345.1.
"Securities Act" means the Securities Act of 1933, as
amended.
"Seller" means Chase Manhattan Bank USA, N.A., a national
banking association with its principal executive offices in Wilmington,
Delaware, in its capacity as the seller of the Receivables under this Agreement,
and each successor to Chase Manhattan Bank USA, N.A. (in the same capacity)
pursuant to Section 7.3.
"Servicer" means Chase Manhattan Bank USA, N.A., a national
banking association with its principal executive offices in Wilmington,
Delaware, in its capacity as the servicer of the Receivables under this
Agreement, each successor to Chase
16
Manhattan Bank USA, N.A. (in the same capacity) pursuant to Section 8.3, and
each successor Servicer pursuant to Section 9.2.
"Servicer's Certificate" means a certificate, substantially in
the form of Exhibit D attached hereto, completed and executed by the Servicer by
its chairman of the board, the president, treasurer, controller or any
executive, senior vice president or vice president pursuant to Section 4.9.
"Servicing Fee" with regard to a Collection Period means the
fee payable to the Servicer for services rendered during such Collection Period,
determined pursuant to Section 4.8.
"Servicing Fee Rate" means 1.00% per annum.
"Settlement Date" means, with respect to any Collection
Period, the last day of the Collection Period immediately preceding such
Collection Period, and with respect to any Distribution Date, the last day of
the second Collection Period preceding the Collection Period in which such
Distribution Date occurs.
"Specified Reserve Account Balance", with respect to any
Distribution Date, means ____% of the Pool Balance as of the related Settlement
Date, but in any event will not be less than the lesser of (i) $__________ and
(ii) the sum of (A) such Pool Balance plus (B) an amount sufficient to pay
interest on such Pool Balance through the Final Scheduled Distribution Date at a
rate equal to the sum of (x) the weighted average of the Class A Pass-Through
Rate and the Class B Pass-Through Rate (based on their respective Certificate
balances) plus (y) the Servicing Fee Rate; provided that the Specified Reserve
Account Balance will be calculated using a percentage of ____% for any
Distribution Date (beginning with the ____________________ Distribution Date)
for which the Average Net Loss Ratio exceeds ____% or the Average Delinquency
Percentage exceeds ____%. Upon written notification to the Trustee by the
Seller, the Specified Reserve Account Balance may be reduced to a lesser amount
as determined by the Seller so long as such reduction satisfies the Rating
Agency Condition.
"Standard & Poor's" means Standard & Poor's Ratings Services,
and its successors and assigns.
"Total Distribution Amount" means, for any Distribution Date,
the sum of Available Interest and Available Principal for such Distribution
Date. The Total Distribution Amount on any Distribution Date shall exclude all
payments and proceeds (including any Liquidation Proceeds and any amounts
received from Dealers with respect to Receivables) of (i) any Receivables the
Repurchase Amount of which has been included in the Total Distribution Amount
for a prior Distribution Date and (ii) Investment Earnings and any Late Fees.
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"Transfer Agent and Certificate Registrar" has the meaning
specified in Section 6.3 and shall initially be the corporate trust office of
Chase.
"Treasury Entitlement" means a "Security Entitlement"
as defined in 31 C.F.R. SS.357.2.
"Treasury Regulations" means the treasury regulations
promulgated under the Code.
"Trust" means the Chase Manhattan Auto Grantor Trust 199_-_,
the estate of which shall consist of the property transferred thereto pursuant
to this Agreement; funds deposited in the Collection Account and the
Distribution Accounts (other than any funds in respect of the Retained Yield)
and proceeds of the foregoing.
"Trustee" means, initially, [__________________________
_____________], its successor in interest pursuant to Section 10.11, and any
successor Trustee pursuant to Section 10.10.
"Trustee's Certificate" means a certificate completed and
executed by an Authorized Officer pursuant to Section 10.2 and substantially in
the forms attached hereto as Exhibits C-1 or C-2.
"United States Security Entitlement" means a Treasury
Entitlement, a HUD Entitlement, a FHL Bank Entitlement, a Funding
Corporation Entitlement, a Farm Credit Entitlement or a ▇▇▇▇▇▇
▇▇▇ Entitlement.
"Weighted Average Pass-Through Rate" means the weighted
average of the Class A Pass-Through Rate and the Class B Pass-Through Rate
(based on their respective Certificate balances).
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.
[SECTION 1.3. Simple Interest Method; Allocations.
All allocations of payments to principal and interest and
determinations of periodic charges and the like on the
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Receivables shall be based on a year with the actual number of days in such year
and twelve months with the actual number of days in each such month. Each
payment on a Receivable shall be applied first to the amount of interest accrued
on such Receivable to the date of receipt, then to reduce the scheduled
principal amount outstanding on the Receivable to the extent of the remaining
scheduled payment and then to any outstanding fees and Late Fees under the terms
of the Receivable. Amounts paid by the Seller or the Servicer in respect of
Repurchased Receivables shall be allocated first to any Accrued Interest and
then to the Principal Balance of the related Receivable.]
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ARTICLE II
THE TRUST CONVEYANCE OF THE RECEIVABLES
SECTION 2.1. Creation of the Trust. Upon the execution of this
Agreement by the parties hereto, there is hereby created the Chase Manhattan
Auto Grantor Trust 199_-_.
SECTION 2.2. Conveyance of Receivables. In consideration of
the Trustee's delivery to, and upon the order of the Seller of authenticated
Certificates, in authorized denominations, in an aggregate amount equal to the
Original Pool Balance, the Seller does hereby sell, transfer, assign, and
otherwise convey to the Trustee on behalf of the Trust, without recourse
(subject to the Seller's obligations herein):
(i) all right, title, and interest of the
Seller in, to and under the Receivables listed in Schedule A hereto,
all proceeds thereof and all amounts and monies received thereon on and
after the Cutoff Date (including proceeds of the repurchase of
Receivables by the Seller pursuant to Section 3.2 or the purchase of
Receivables by the Servicer pursuant to Section 4.7 or 11.2), together
with the interest of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables
and in any repossessed Financed Vehicles;
(ii) all right, title and interest of the
Seller in any Liquidation Proceeds and in any proceeds of any extended
warranties, theft and physical damage, credit life or credit disability
policies relating to the Financed Vehicles or the Obligors;
(iii) all right, title and interest of the
Seller in any proceeds from Dealer repurchase obligations
relating to the Receivables;
(iv) all right, title and interest of the
Seller in the Collection Account; and
(v) all proceeds (as defined in the
Relevant UCC) of the foregoing.
Simultaneously with the sale, transfer, assignment and
conveyance by the Seller pursuant to this Section 2.1, the Trustee on behalf of
the Trust does hereby transfer, assign and otherwise convey to the Seller all of
its right, title and interest in the Retained Yield.
Notwithstanding anything herein to the contrary, the property
of the Trust shall not include, and the Trust shall not have any right to, the
Retained Yield or the Reserve Account, any funds actually or deemed to be
deposited in such account or any
20
investments therein except to the extent provided in Sections
5.2, 5.5 and 5.6.
In connection with such sale, the Seller agrees to record and
file, at its own expense, financing statements (and continuation statements with
respect to such financing statements when applicable) with respect to the
Receivables for the sale of accounts and chattel paper meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect the sale and assignment of the Receivables to the Trust.
It is the intention of the Seller and the Trustee that the
assignment and transfer herein contemplated constitute a sale of the
Receivables, conveying good title thereto free and clear of any liens and
encumbrances, from the Seller to the Trust and the Receivables not be part of
the Seller's estate in the event of an insolvency. In the event that such
conveyance is deemed to be a pledge to secure a loan, the Seller hereby grants
to the Trustee on behalf of the Trust for the benefit of the Certificateholders
a first priority perfected security interest in all of the Seller's right, title
and interest in, to and under the items of property listed in clauses (i)
through (iv) above, and in all proceeds (as defined in the Relevant UCC) 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.
21
ARTICLE III
THE RECEIVABLES
SECTION 3.1. Representations and Warranties of Seller;
Conditions Relating to Receivables. (a) The Seller makes the following
representations and warranties as to the Receivables on which the Trustee shall
rely in accepting the Receivables in trust and authenticating the Certificates.
Such representations and warranties shall speak as of the Cutoff Date unless
otherwise specified, but shall survive the sale, transfer, and assignment of the
Receivables to the Trustee.
(i) Schedule of Receivables. The
information set forth in Schedule A hereto with respect to each
Receivable is true and correct in all material respects, and no
selection procedures materially adverse to the Certificateholders has
been utilized in selecting the Receivables from all receivables owned
by the Seller which meet the selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable
has been sold, transferred, assigned or pledged by the Seller to any
Person other than the Trustee.
(iii) Good Title. Immediately prior to the
transfer and assignment of the Receivables to the Trust herein
contemplated, the Seller has good and marketable title to each
Receivable free and clear of all Liens and rights of others; and,
immediately upon the transfer thereof, the Trustee, for the benefit of
the Certificateholders, has either (i) good and marketable title to
each Receivable, free and clear of all Liens and rights of others, and
the transfer has been perfected under applicable law or (ii) a first
priority perfected security interest in each Receivable and the
proceeds thereof.
(b) Each Receivable satisfies the following
conditions as of the Cutoff Date unless otherwise specified and such conditions
shall survive the sale, transfer and assignment of the Receivables to the
Trustee pursuant to this Agreement.
(i) Acquisition. Each Receivable is
either a Dealer Receivable acquired directly or indirectly from or made
through a Dealer located in the United States (including the District
of Columbia) or is a Direct Receivable;
(ii) Security. Each Receivable is secured
by a new or used automobile or light-duty truck;
(iii) Maturity of Receivables. Each Re-
ceivable had a remaining maturity, as of the Cutoff Date, of not less
than __ months nor greater than __ months, and (A)
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in the case of each Receivable secured by a new Financed Vehicle, had
an original maturity of at least __ months and not more than __ months;
and (B) in the case of each Receivable secured by used Financed
Vehicle, had an original maturity of at least ____ months and not more
than ____.
(iv) Contract Rate. Each Receivable is a
fully-amortizing fixed rate [simple interest] contract that provides
for level scheduled monthly payments over its remaining term, and has a
Contract Rate of at least ____% and not more than _____%;
(v) No Repossessions. Each Receivable is
secured by a Financed Vehicle that, as of the Cutoff Date,
had not been repossessed without reinstatement of such
Receivable;
(vi) Obligor Not Subject to Bankruptcy
Proceedings. Each Receivable has been entered into by an
Obligor who had not been identified on the computer files of
the Seller as in bankruptcy proceedings as of the Cutoff
Date;
(vii) No Overdue Payments. Each Receivable
had no payment that was more than 30 days past due as of the
Cutoff Date;
(viii) [Reserved];
(ix) Remaining Principal Balance. Each
Receivable had a remaining principal balance, as of the
Cutoff Date, of at least $_____ and not greater than
$------;
(x) No Force Placed Insurance. As of the
Cutoff Date, each Receivable was secured by a Financed Vehicle that was
not insured by a force placed insurance policy or any vendor's single
interest and non-filing insurance policy;
(xi) Receivable Files. The Receivable
Files shall be kept at one or more of the locations
specified in Schedule B hereto;
(xii) Characteristics of Receivables. Each
Receivable (a)(i) in the case of a Dealer Receivable, has been
originated in the form of a credit sales transaction by a Dealer or a
purchase money loan through a Dealer located in one of the States of
the United States (including the District of Columbia) for the retail
financing of a Financed Vehicle or (ii) in the case of a Direct
Receivable, has been originated by Chase or an affiliate thereof in the
form of a secured loan for the retail financing of a Financed Vehicle,
and, in each case, has been fully and properly executed by
23
the parties thereto, (b)(i) in the case of a Dealer Receivable, if a
retail installment sales contract, has been purchased by the Seller
from the originating Dealer or an affiliate of the Seller, and has been
validly assigned by such Dealer or an affiliate of the Seller to the
Seller in accordance with its terms or (ii) in the case of a Chase
Direct Receivable has been purchased by the Seller from Chase, and has
been validly assigned by Chase to the Seller; (c) contains customary
and enforceable provisions such that the rights and remedies of the
holder thereof are adequate for realization against the collateral of
the benefits of the security; and (d) provides for fully amortizing
level scheduled monthly payments (provided that the payment in the last
month in the life of the Receivable may be different from the level
scheduled payment) and for accrual of interest at a fixed rate
according to the [simple interest] method;
(xiii) Compliance with Laws. Each Receivable
and each sale of the related Financed Vehicle complied at the time it
was originated or made, and complied on and after the Cutoff Date, in
all material respects with all requirements of applicable federal,
state, and local laws, and regulations thereunder, including usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Reporting Act, the Federal Trade Commission Act,
the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, Federal Reserve Board Regulations B and
Z, state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and any other consumer credit, equal opportunity,
and disclosure laws applicable to such Receivable and sale thereof;
(xiv) Binding Obligation. Each Receivable
constitutes the legal, valid, and binding payment obligation in writing
of the Obligor, enforceable by the holder thereof in all material
respects in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization, liquidation and
other similar laws and equitable principles relating to or affecting
the enforcement of creditors' rights;
(xv) No Government Obligor. Each
Receivable is not due from the United States of America or any State or
from any agency, department, instrumentality or political subdivision
of the United States of America or any State or local municipality, and
each Receivable is not due from a business except to the extent that
such Receivable has a personal guaranty;
(xvi) Security Interest in Financed Vehicle.
Immediately prior to the sale and assignment thereof to the Trustee as
herein contemplated, each Receivable was secured by a validly perfected
first priority security interest in
24
the related Financed Vehicle in favor of or for the benefit of the
Seller as secured party (subject to administrative delays and clerical
errors on the part of the applicable governmental agency and to any
statutory or other lien arising by operation of law after the Closing
Date which is prior to such security interest), the Seller's security
interest (or beneficial interest therein) is assignable, and has been
so assigned by the Seller to the Trust, and at such time as enforcement
of such security interest is sought, each Receivable shall be secured
by a validly perfected first priority security interest in the related
Financed Vehicle for the benefit of the Trust (subject to
administrative delays and clerical errors on the part of the applicable
governmental agency and to any statutory or other lien arising by
operation of law after the Closing Date which is prior to such security
interest);
(xvii) Receivables in Force. No Receivable
has been satisfied, subordinated, or rescinded, nor has any Financed
Vehicle been released from the Lien granted by the related Receivable,
in whole or in part;
(xviii) No Waiver. No provision of a
Receivable has been waived in such a manner that such Receivable fails
either to meet all of the representations and warranties made by the
Seller herein with respect thereto or to meet all of the conditions
with respect thereto pursuant to this Section 3.1(b);
(xix) No Amendments. No Receivable has been
amended except pursuant to either instruments included in the
Receivable Files or instruments to be included in the Receivables Files
pursuant to Sections 4.2 and 4.4 (or otherwise maintained by the Seller
in the ordinary course of its business), and no such amendment has
caused such Receivable either to fail to meet all of the
representations and warranties made by the Seller herein with respect
thereto or to fail to meet all of the conditions with respect thereto
pursuant to this Section 3.1(b);
(xx) No Defenses. As of the Cutoff Date,
the Seller has no knowledge either of any facts which would give rise
to any right of rescission, setoff, counterclaim, or defense, or of the
same being asserted or threatened, with respect to any Receivable;
(xxi) No Liens. As of the Cutoff Date, the
Seller had no knowledge of any Liens or claims that have been filed,
including liens for work, labor, materials or unpaid taxes relating to
a Financed Vehicle, that would be liens prior to, or equal or
coordinate with, the lien granted by the Receivable;
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(xxii) No Default. Except for payment
defaults continuing for a period of not more than 30 days as of the
Cutoff Date, the Seller has no knowledge that a default, breach,
violation, or event permitting acceleration under the terms of any
Receivable exists; the Seller has no knowledge that a continuing
condition that with notice or lapse of time would constitute a default,
breach, violation, or event permitting acceleration under the terms of
any Receivable exists; and the Seller has not waived any of the
foregoing;
(xxiii) Insurance. Each Receivable requires
that the Obligor thereunder maintain comprehensive, liability, theft
and physical damage insurance covering the related Financed Vehicle;
(xxiv) Lawful Assignment. No Receivable has
been originated in, or is subject to the laws of, any jurisdiction
under which the sale, transfer, and assignment of such Receivable under
this Agreement or pursuant to transfers of the Certificates is
unlawful, void or voidable;
(xxv) All Filings Made. No filings (other
than filings under the Relevant UCC which have been made) or other
actions are necessary in any jurisdiction to give the Trustee a first
perfected security interest in the Receivables.
(xxvi) One Original. There is no more than
one original executed copy of each Receivable which, immediately prior
to the delivery thereof to the Servicer (as custodian for the Trustee)
was in the possession of the Seller;
(xxvii) Excluded Loans. Each Receivable (A)
is not a Receivable whose related Obligor resides in the State of
Alabama (in the case of a Direct Receivable) or a Receivable originated
by or through a Dealer located in the State of Alabama (in the case of
a Dealer Receivable), and (B) has not been the subject of a previous
securitization; and
(xxviii) Account Number. Each Dealer
Receivable has been assigned an account number that corresponds to the
number assigned to the Dealer from or through whom such Receivable was
acquired, and each Direct Receivable has been assigned an account
number that corresponds to the number assigned to the applicable
originating branch (or the "loan-by-phone" line).
SECTION 3.2. Repurchase Upon Breach or Failure of a
Condition. The Seller, the Servicer, or the Trustee, as the case
may be, shall inform the other parties promptly, in writing, upon
the discovery by the Seller, the Servicer or an Authorized
26
Officer of the Trustee of either any breach of the Seller's representations and
warranties set forth in Section 3.1(a) or the failure of any Receivable to
satisfy any of the conditions set forth in Section 3.1(b) which materially and
adversely affects the Trust's interest in any Receivable. Unless the breach or
failed condition shall have been cured by the last day of the Collection Period
following the Collection Period in which such discovery occurred (or, at the
Seller's option, the last day of the Collection Period in which such discovery
occurred), the Seller shall repurchase any Receivable the Holders' interest in
which was materially and adversely affected by the breach or failed condition,
as of such last day. Notwithstanding anything herein to the contrary, with
respect to the breach of a representation and warranty in Section
3.1(b)(xxviii), the Seller shall repurchase such Receivable regardless of its
effect on the interest of the Holders in such Receivable or whether notice
thereof has been delivered by any of the parties thereto, and the repurchase of
any such Receivable shall take place at any time as is administratively
convenient for the Seller and the Servicer. In consideration of the repurchase
of a Receivable, the Seller shall remit the Repurchase Amount of such Receivable
as of such last day (less any Liquidation Proceeds deposited, or to be
deposited, by the Servicer in the Collection Account with respect to such
Receivable pursuant to Section 4.3) in the manner specified in Section 5.4. In
the event that, as of the Cutoff Date, any Receivable shall have a Contract Rate
which is lower than the sum of the Weighted Average Pass-Through Rate and the
Servicing Fee Rate, the Seller shall repurchase such Receivable on the terms and
in the manner specified above; provided, however, that notwithstanding anything
to the contrary contained herein, the Seller shall repurchase such Receivable as
of the last day of the Collection Period immediately succeeding the discovery
thereof by the Seller or the Servicer or the receipt by the Seller of notice
thereof from the Trustee. The sole remedy of the Trust, the Trustee or the
Certificateholders with respect either to a breach of the Seller's
representations and warranties set forth in Section 3.1(a) or to a failure of
any of the conditions set forth in Section 3.1(b) shall be to require the Seller
to repurchase Receivables pursuant to this Section 3.2. The obligation of the
Seller to repurchase under this Section 3.2 shall not be dependent upon the
actual knowledge of the Seller of any breached representation or warranty. The
Trustee shall have no duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Receivable pursuant
to this Section 3.2 or the eligibility of any Receivable for purposes of this
Agreement.
SECTION 3.3. Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Trustee, upon the execution and delivery of this Agreement, agrees to have the
Servicer act as custodian of the following documents or instruments (the
"Receivable Files") which are hereby constructively delivered to the Trustee
with respect to each Receivable:
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(i) The original executed Receivable; and
(ii) Any and all other documents or records
that the Seller or the Servicer, as the case may be, shall keep on
file, in accordance with its customary procedures, relating to a
Receivable, an Obligor, or a Financed Vehicle.
The Servicer hereby agrees to act as custodian and as agent
for the Trustee hereunder. The Servicer acknowledges that it holds the documents
and instruments relating to the Receivables for the benefit of the Trustee and
the Certificateholders. The Trustee shall have no responsibility to monitor the
Servicer's performance as custodian and shall have no liability in connection
with the Servicer's performance of such duties hereunder.
SECTION 3.4. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity
as custodian, shall hold the Receivable Files on behalf of the Trustee for the
use and benefit of all present and future Certificateholders and maintain such
accurate and complete accounts, records (either original execution documents or
copies of such originally executed documents shall be sufficient), and computer
systems pertaining to the Receivables as shall enable the Trustee to comply with
its obligations pursuant to this Agreement. In performing its duties as
custodian, the Servicer shall act with reasonable care, using that degree of
skill and attention that the Servicer exercises with respect to the receivable
files of comparable new or used automobile receivables that the Servicer
services for itself or others. The Servicer shall conduct, or cause to be
conducted, periodic audits of the files of all receivables owned or serviced by
the Servicer which shall include the Receivable Files held by it under this
Agreement and the related accounts, records, and computer systems, in such a
manner as shall enable the Trustee to identify all Receivable Files and such
related accounts, records and computer systems and to verify, if the Trustee so
elects, the accuracy of the Servicer's recordkeeping. The Servicer shall
promptly report to the Trustee any failure on its part to hold the Receivable
Files and maintain its accounts, records, and computer systems as herein
provided, and promptly take appropriate action to remedy any such failure.
(b) Maintenance of and Access to Records. The
Servicer shall maintain each Receivable File at one of the locations specified
in Schedule B to this Agreement, or at such other location as shall be specified
to the Trustee by 30 days' prior written notice. The Servicer shall make
available to the Trustee or its duly authorized representatives, attorneys, or
auditors the Receivable Files and the related accounts, records, and computer
systems maintained by the Servicer at such times during normal operating hours
as the Trustee shall reasonably
28
instruct which does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations.
(c) Release of Documents. Upon instruction from
the Trustee, the Servicer shall release any document in the Receivable Files to
the Trustee, the Trustee's agent, or the Trustee's designee, as the case may be,
at such place or places as such Person may reasonably designate as soon as
reasonably practicable to the extent it does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations. The Servicer
shall not be responsible for any loss occasioned by the failure of the Trustee,
its agent or its designee to return any document or any delay in doing so.
(d) Title to Receivables. The Servicer agrees
that, in respect of any Receivable held by it as custodian hereunder, (i) the
Servicer will not at any time have or in any way attempt to assert any interest
in such Receivable or the related Receivable File, other than solely for the
purpose of collecting or enforcing the Receivable for the benefit of the Trust
and (ii) the related Receivable File shall at all times be property of the
Trust.
SECTION 3.5. Instructions; Authority to Act. The Servicer
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of written instructions signed by an
Authorized Officer. A certified copy of a by-law or of a resolution of the Board
of Directors of the Trustee shall constitute conclusive evidence of the
authority of any such Authorized Officer to act and shall be considered in full
force and effect until receipt by the Servicer of written notice to the contrary
given by the Trustee.
SECTION 3.6. Custodian's Indemnification. The Servicer, as
custodian, shall indemnify the Trustee for any and all liabilities, obligations,
losses, damages, payments, costs, or expenses of any kind whatsoever that may be
imposed on, incurred, or asserted against the Trustee as the result of any act
or omission in any way relating to the maintenance and custody by the Servicer,
as custodian, of the Receivable Files; provided, however, that the Servicer
shall not be liable for any portion of any such amount resulting from the wilful
misfeasance, bad faith, or negligence of the Trustee.
SECTION 3.7. Effective Period and Termination. The
Servicer's appointment as custodian shall become effective as of the Cutoff Date
and shall continue in full force and effect until terminated pursuant to this
Section 3.7 or until this Agreement shall be terminated. If the Servicer shall
resign as Servicer under Section 8.5 or if all of the rights and obligations of
the Servicer shall have been terminated under Section 9.1, the appointment of
the Servicer as custodian may be terminated by the Trustee or by the Holders of
Certificates evidencing not less than 50% of the sum of the Class A Certificate
Balance and the
29
Class B Certificate Balance voting as a single class, in the same manner as the
Trustee or such Holders may terminate the rights and obligations of the Servicer
under Section 9.1. As soon as practicable after any termination of such
appointment, the Servicer shall, at its expense, deliver the Receivable Files to
the Trustee or the Trustee's agent at such place or places as the Trustee may
reasonably designate. Notwithstanding the termination of the Servicer as
custodian, the Trustee agrees that upon any such termination, the Trustee shall
provide, or cause its agent to provide, access to the Receivables Files to the
Servicer for the purpose of carrying out its duties and responsibilities with
respect to the servicing of the Receivables hereunder.
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ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1. Duties of Servicer. The Servicer shall manage,
service, administer and make collections on the Receivables (other than
Repurchased Receivables) with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to comparable new or used
automobile receivables that it services for itself. The Servicer's duties shall
include collection and posting of all payments, responding to inquiries by
Obligors or by federal, state, or local governmental authorities with respect to
the Receivables, investigating delinquencies, reporting tax information to
Obligors in accordance with its customary practices, advancing costs of
disposition of defaults, monitoring the Receivables in cases of Obligor
defaults, accounting for collections, furnishing monthly and annual statements
to the Trustee with respect to distributions, and, if it elects to do so, making
Advances pursuant to Section 5.3. The Servicer shall follow its customary
standards, policies, and procedures in performing its duties as Servicer
hereunder; provided that the Servicer shall be permitted to take or to refrain
from taking any action not specified in this Agreement with respect to servicing
the Receivables if such action or inaction would not contravene any material
term of this Agreement or materially adversely affect the interests of
Certificateholders. Without limiting the generality of the foregoing, the
Servicer shall be authorized and empowered by the Trustee to execute and
deliver, on behalf of itself, the Trust, the Trustee, the Certificateholders, or
any of them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments,
without recourse to the Trustee with respect to the Receivables or with respect
to the Financed Vehicles. If the Servicer shall commence a legal proceeding to
enforce a Receivable or a Defaulted Receivable, the Trustee shall thereupon be
deemed to have automatically assigned such Receivable and the related property
conveyed to the Trust pursuant to Section 2.1 with respect to such Receivable to
the Servicer, solely for the purpose of collection. The Trustee shall furnish
the Servicer with such documents as have been prepared by the Servicer for
execution by the Trustee and as are necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder.
SECTION 4.2. Collection of Receivable Payments; Refinancing.
(a) The Servicer shall make reasonable efforts to collect all payments called
for under the terms and provisions of the Receivables and of this Agreement as
and when the same shall become due, and shall follow such collection procedures
as it follows with respect to comparable new or used automobile receivables that
it services for itself and that are consistent with prudent industry standards.
No extensions of, or other modifications to, the Receivables shall be made by
the Servicer
31
if such modifications would have a material adverse effect on the interests of
Certificateholders. The Servicer shall not change the amount of (except with
respect to a prepayment of a scheduled payment that does not result in a
deferral of any other scheduled payment) or reschedule the due date of any
scheduled payment to a date more than 30 days from the original due date of such
scheduled payment, change the Contract Rate of, or extend any Receivable (except
as provided in Section 4.4) or change any material term of a Receivable, except
with respect to certain unilateral changes as provided by the terms of the
Receivable or of this Agreement or as required by law or court order; provided,
however, that the Servicer may grant extensions of the due date for a payment on
a Receivable that is in default or with respect to which, absent such extension,
default is reasonably foreseeable, and the Servicer would grant such extension
with respect to comparable new or used automobile receivables that it services
for itself, but such extension would be granted only if (i) the Available
Reserve Account Amount is greater than zero at the time of such extension, (ii)
the extension is for no more than three months, (iii) the total period of all
credit related extensions granted on the Receivable will not exceed the number
of months equal to the number of whole years comprising the original term of the
Receivable and (iv) the maturity of such Receivable would not be extended beyond
the Collection Period immediately preceding the Final Scheduled Distribution
Date and the rescheduling or extension would not modify the terms of such
Receivable in such a manner as to constitute a cancellation of such Receivable
and the creation of a new receivable for federal income tax purposes. If, as a
result of inadvertently rescheduling or extending of payments, such rescheduling
or extension breaches any of the terms of the proviso to the preceding sentence,
then the Servicer shall be obligated to purchase such Receivable pursuant to
Section 4.7. For the purpose of such purchases pursuant to Section 4.7, notice
shall be deemed to have been received by the Servicer at such time as shall make
any such purchase mandatory as of the last day of the Collection Period during
which the discovery of such breach shall have occurred. The Servicer may, in its
discretion, in accordance with its customary standards, policies and procedures,
waive any Late Fees that may be collected in the ordinary course of servicing a
Receivable.
(b) Notwithstanding anything in this Agreement to
the contrary, the Servicer may refinance any Receivable by accepting a new
promissory note from the related Obligor and applying the proceeds of such
refinancing to pay all obligations in full of such Obligor under such
Receivable; provided, however, that the Servicer shall not refinance a
Receivable unless at least one material term of the Receivable is substantively
changed. The receivable created by the refinancing shall not be property of the
Trust.
SECTION 4.3. Realization Upon Receivables. On behalf
of the Trust, the Servicer shall use reasonable efforts,
32
consistent with its customary servicing procedures, to repossess or otherwise
take possession of the Financed Vehicle securing any Receivable which the
Servicer shall have determined to be a Defaulted Receivable or otherwise. The
Servicer shall follow such customary and usual practices and procedures as it
shall deem necessary or advisable in its servicing of new or used automobile
receivables, which may include reasonable efforts to realize upon any recourse
to Dealers, consigning the Financed Vehicle to a Dealer for resale and selling
the Financed Vehicle at public or private sale. The Servicer shall be entitled
to recover from proceeds all reasonable expenses incurred by it in the course of
converting the Financed Vehicle into cash proceeds. The Liquidation Proceeds
with respect to a Receivable shall be deposited by the Servicer in the
Collection Account in the manner specified in Section 5.2 and shall be applied
to reduce (or to satisfy, as the case may be) the Repurchase Amount of the
Receivable, if such Receivable is to be repurchased by the Seller pursuant to
Section 3.2, or is to be purchased by the Servicer pursuant to Section 4.7. The
foregoing shall be subject to the provision that, in any case in which a
Financed Vehicle shall have suffered damage, the Servicer shall not expend funds
in connection with the repair or the repossession of such Financed Vehicle
unless it shall determine in its sole discretion that such repair and/or
repossession will increase the Liquidation Proceeds of the related Receivable by
an amount equal to or greater than the amount of such expenses.
SECTION 4.4. Non-Credit Related Extensions to Obligors. Prior
to the Closing Date, the Servicer shall notify each Obligor in writing that if
such Obligor satisfies certain conditions, as fully set forth in clauses (i)
through (vii) below, as of a date selected by the Servicer within five (5)
months prior to the proposed extension, such Obligor shall be entitled to a
non-credit related extension of any regularly scheduled payment due under a
Receivable that satisfies clauses (w) through (z) below:
(i) either (A) if the original term to maturity of the
Receivable is less than or equal to 48 months, at least eight (8), or
(B) if the original term to maturity of the Receivable exceeds 48
months but is not greater than 60 months, at least ten, regular
monthly payments shall have been made on the related Receivable, and
the remaining outstanding Principal Balance of the related Receivable
shall be greater than $500;
(ii) the payment status is current;
(iii) such Obligor shall not within the previous six months
have been delinquent for thirty days or more in making a payment
under the related Receivable;
(iv) no information has been furnished to the Servicer which
indicates that, based upon its current
33
underwriting guidelines and credit standards relating to advancing
funds under comparable retail installment sales contracts and purchase
money loans for new or used automobiles, the Obligor is not a Person to
whom the Servicer would advance funds;
(v) at least four (4) monthly payments are scheduled to be
made by the Obligor prior to final maturity
of the related Receivables;
(vi) the Receivable related to such optional extension shall
not have previously been the subject of more than two credit-related
extensions or the subject of any collection or bankruptcy-related
rewrites; and
(vii) after giving effect to such extension and the Obligor's
projected payments given the Obligor's payment history, the final
payment with respect to such Receivable would not exceed two (2) times
the original scheduled final payment amount of such Receivable.
In addition, any such extensions selected by an Obligor shall
satisfy the following criteria:
(w) a Receivable shall be extended for only the calendar
month of December;
(x) during the term of a Receivable, it shall be extended
only for the number of months equal to the number of whole years
comprising the initial term of such Receivable;
(y) no Receivable shall be extended such that its maturity
will be later than the Collection Period immediately preceding the
Final Scheduled Distribution Date; and
(z) the Obligor (or the related Receivable) shall have
satisfied conditions (i) through (vii) above.
If, as an inadvertent result of any extension granted pursuant
to this Section 4.4, such extension breaches any of the terms of the preceding
criteria (w) through (z), then the Servicer shall be obligated to purchase such
Receivable pursuant to Section 4.7. For the purpose of such purchases pursuant
to Section 4.7, notice shall be deemed to have been received by the Servicer at
such time as shall make purchase mandatory as of the last day of the Collection
Period during which the discovery of such breach shall have occurred.
SECTION 4.5. Maintenance of Security Interests in Financed
Vehicles. The Servicer, in accordance with its customary servicing procedures,
shall take such steps as are
34
necessary to maintain perfection of the first priority security interest of the
Seller created in any Financed Vehicle which secures a Receivable. On behalf of
the Trust, the Servicer hereby agrees to take such steps as are necessary to
re-perfect such security interest in the event of the relocation of a Financed
Vehicle or for any other reason, in either case, when the Servicer has knowledge
of the need for such re-perfection. In the event that the assignment of a
Receivable to the Trust is insufficient without a notation on the related
Financed Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the State in which the Financed
Vehicle is located, to grant to the Trust a perfected security interest in the
related Financed Vehicle, the Servicer hereby agrees that the Seller's listing
as the secured party on the certificate of title is deemed to be in its capacity
as agent of the Trust and further agrees to hold such certificate of title as
the Trustee's agent and custodian; provided, however, that the Servicer shall
not, nor shall the Trustee or Certificateholders have the right to require that
the Servicer, make any such notation on the related Financed Vehicles'
certificate of title or fulfill any such additional administrative requirement
of the laws of the State in which a Financed Vehicle is located.
SECTION 4.6. Covenants of Servicer. The Servicer hereby makes
the following covenants on which the Trustee will rely in accepting the
Receivables in trust and authenticating the Certificates:
(i) Security Interest to Remain in Force.
The Financed Vehicle securing each Receivable shall not be released
from the security interest granted by the Receivable in whole or in
part except if such Financed Vehicle is substituted in whole by the
manufacturer, dealer or seller as a result of mechanical defects or a
total loss of the Financed Vehicle because of accident or theft or as
otherwise contemplated herein;
(ii) No Impairment. The Servicer shall not
impair the rights of the Trust in the Receivables; and
(iii) Extensions; Defaulted Receivables.
The Servicer shall not increase the number of payments under a
Receivable, nor increase the Amount Financed under a Receivable, nor
extend or forgive payments on a Receivable, except as provided in
Sections 4.2 and 4.4. In the event that at the end of the scheduled
term of any Receivable, the outstanding principal amount thereof is
such that the final payment to be made by the related Obligor is larger
than the regularly scheduled payment of principal and interest made by
such Obligor, the Servicer may permit such Obligor to pay such
remaining principal amount in more than one payment of principal and
interest; provided, however, that the last such payment shall be due on
or prior to the Collection
35
Period immediately preceding the Final Scheduled
Distribution Date.
SECTION 4.7. Purchase of Receivables Upon Breach. The
Seller, the Servicer or the Trustee, as the case may be, shall inform the
other parties promptly, in writing, upon the discovery by the Seller, the
Servicer or an Authorized Officer of the Trustee, as the case may be, of any
breach by the Servicer of its covenants under Section 4.6 which materially and
adversely affects the interest of the Trust in any Receivable (for this
purpose, any breach of the covenant set forth in Section 4.6(iii) shall be
deemed to materially and adversely affect the interest of the Trust in a
Receivable). Except as otherwise specified in Sections 4.2 or 4.4, unless
the breach shall have been cured by the last day of the Collection Period
following the Collection Period in which such discovery occurred (or, at the
Servicer's election, the last day of the Collection Period in which such
discovery occurred), the Servicer shall purchase any Receivable materially and
adversely affected by such breach, as of such last day. In consideration of
the purchase of such Receivable, the Servicer shall remit the Repurchase
Amount (less any Liquidation Proceeds deposited, or to be deposited, by the
Servicer in the Collection Account with respect to such Receivable pursuant to
Section 4.3) in the manner specified in Section 5.4. The sole remedy of the
Trust, the Trustee, or the Certificateholders against the Servicer with
respect to a breach pursuant to Section 4.2 or 4.6 shall be to require the
Servicer to purchase Receivables pursuant to this Section 4.7. The Trustee
shall have no duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Receivable
pursuant to this Section 4.7 or the eligibility of any Receivable for purposes
of this Agreement.
SECTION 4.8. Servicing Fee. The Servicing Fee for a Collection
Period shall be payable on the related Distribution Date pursuant to Section 5.5
and shall equal the sum of (i) the product of one-twelfth of the Servicing Fee
Rate and the Pool Balance as of the related Settlement Date and (ii) Late Fees
received from Obligors during such Collection Period. In addition, as part of
the Servicing Fee, the Servicer shall be entitled to receive on each
Distribution Date Investment Earnings when and as paid on amounts on deposit in
the Collection Account or earned on collections pending deposit in the
Collection Account; provided, however, that, beginning with the Collection
Period for which the Trustee is notified in writing that the Servicer has failed
to deposit an Advance with respect to a Receivable (other than because such
Receivable has been designated a Defaulted Receivable) and continuing until the
Final Scheduled Distribution Date, such Investment Earnings shall not be paid to
the Servicer, but shall be deposited by the Trustee or the Paying Agent on its
behalf into the Reserve Account on each Distribution Date. The Servicer shall be
required to pay from its own account all expenses incurred by it in connection
with its activities hereunder (including fees and disbursements of
36
independent accountants and auditors, taxes imposed on the Servicer, and other
costs incurred in connection with administering and servicing the Receivables)
and the fees and disbursements of the Trustee, the Collateral Agent, the
Trustee's and the Collateral Agent's counsel, the Paying Agent, the Transfer
Agent and Certificate Registrar except for United States federal, state and
local income and franchise taxes, if any, imposed on the Trust or any
Certificateholder or any expenses in connection with realizing upon Receivables
under Section 4.3.
SECTION 4.9. Servicer's Certificate. On or before each
Determination Date, the Servicer shall deliver to the Trustee, the Collateral
Agent, the Paying Agent and the Rating Agencies a Servicer's Certificate
substantially in the form of Exhibit D hereto, for the Collection Period
preceding such Determination Date, containing all information necessary to make
the distributions pursuant to Section 5.5, and all information necessary for the
Paying Agent to send statements to Certificateholders pursuant to Section 5.8.
The Servicer shall deliver to the Rating Agencies any information, to the extent
it is available to the Servicer, that the Rating Agencies reasonably request in
order to monitor the Trust. The Servicer shall also specify each Receivable
which the Seller or the Servicer is required to repurchase or purchase, as the
case may be, as of the last day of the preceding Collection Period or as of the
related Settlement Date, as applicable, each Receivable which the Servicer shall
have determined to be a Defaulted Receivable during the preceding Collection
Period, and each Receivable for which the Servicer has failed to deposit an
Advance pursuant to Section 5.3 other than because such Receivable has been
designated a Defaulted Receivable. Subsequent to the Closing Date, the form of
Servicer's Certificate may be revised or modified to cure any ambiguities or
inconsistencies between such form and this Agreement; provided, however, that no
material information shall be deleted from the form of Servicer's Certificate.
In the event that the form of Servicer's Certificate is revised or modified in
accordance with the preceding sentence, a form thereof, as so revised or
modified, shall be provided to the Trustee, the Collateral Agent, the Paying
Agent and each Rating Agency.
SECTION 4.10.Annual Statement as to Compliance. (a) The
Servicer shall deliver to a firm of independent certified public accountants, on
or before March 31 of each year commencing March 31, ____, 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 Servicer,
stating that (a) a review of the activities of the Servicer during the year
ended the preceding December 31 (or period since the Cutoff Date in the case of
the first such certificate) and of its performance under this Agreement has been
made under such officer's supervision and (b) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its obligations
in all material respects under this
37
Agreement throughout such year (or shorter period in the case of the first such
certificate), or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trustee and each Rating
Agency promptly after having obtained knowledge thereof, but in no event later
than five Business Days thereafter, an Officer's Certificate specifying any
event which with the giving of notice or lapse of time, or both, would become an
Event of Servicing Termination under Section 9.1. The Seller shall deliver to
the Trustee, promptly after having obtained knowledge thereof, but in no event
later than five Business Days thereafter, an Officer's Certificate specifying
any event which with the giving of notice or lapse of time, or both, would
become an Event of Servicing Termination under Section 9.1.
SECTION 4.11. Annual Audit Report. The Servicer shall cause a
firm of independent public accountants (which may provide other services to the
Servicer or the Seller) to prepare a report (with a copy of the certificate
described in Section 4.10(a) attached) addressed to the Board of Directors of
the Servicer, for the information and use of the Trustee and the Rating Agencies
on or before March 31 of each year, beginning March 31, ____, to the effect
that, with respect to the twelve months (or period since the Cutoff Date in the
case of the first such report) ended the preceding December 31, such firm has
either (A) examined a written assertion by the Servicer about the effectiveness
of the Servicer's internal control structure over the processing and reporting
of transactions relating to securitized automobile loans with respect to the
criteria set forth by the Servicer (the "Assertion") and that, on the basis of
such examination, such firm is of the opinion that the Servicer's Assertion is
fairly stated in all material respects except for (i) such exceptions as such
firm believes to be immaterial and (ii) such other exceptions as shall be set
forth in such firm's report, or (B) such firm has performed the following
procedures:
1. For a sample of daily cash receipts during the preceding
calendar year:
a. Trace total cash receipts to deposits on bank
statements.
b. Agree cash receipts for securitized loans to computer
reports.
c. Trace cash receipts for securitized loans to
disbursements to the Trustee.
2. For a sample of monthly cash receipt reports:
a. Agree total cash receipts per the cash receipt reports to
"Total Payments From Obligors Applied to Collection Period"
per monthly Servicer Certificates.
38
b. Agree total principal payments per the cash receipt
reports to "Principal Payments" per monthly Servicer
Certificates.
3. For a sample of loans delinquent 30 days or more and for a sample of
loans in repossession status, selected from the loan delinquency report
or a new repossession report, as applicable, at a point in time, trace
loan number to inclusion in the loan collection system.
The determination of which of the two alternative reports to be prepared and
delivered, and the size of each sample to be tested, shall be decided in the
sole discretion of the Servicer. The report of the independent certified public
accountants shall also indicate that such accounting firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.12. Access by Certificateholders to Certain
Documentation and Information Regarding Receivables. The Servicer shall provide
to the Certificateholders access to the Receivable Files in such cases where the
Certificateholders shall be required by applicable statutes or regulations to
have access to such documentation. Access by the Certificateholders shall be
afforded without charge, but only upon reasonable request and during normal
business hours which does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. Nothing in this Section 4.12 shall
affect the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the failure of the
Servicer to provide access to information as a result of such obligation shall
not constitute a breach of this Section 4.12.
SECTION 4.13. Reports to Certificateholders and the Rating
Agencies. (a) The Trustee shall provide to any Certificateholder who so requests
in writing (addressed to the Corporate Trust Office) a copy of any Servicer's
Certificate described in Section 4.9, of the annual statement described in
Section 4.10(a), or the annual report described in Section 4.11. The Trustee may
require the Certificateholder to pay a reasonable sum to cover the cost of the
Trustee's complying with such request.
(b) The Trustee shall forward to the Rating Agencies the
statement to Certificateholders described in Section 5.8 and any other reports
it may receive pursuant to this Agreement [(i) to Standard & Poor's Ratings
Services, Asset-Backed Surveillance Group, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, (ii) to ▇▇▇▇▇'▇ Investors Service, Inc., ABS Monitoring Dept., ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (iii) to Fitch Investors
Services, L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇].
39
SECTION 4.14. Reports to the Securities and Exchange
Commission. The Servicer shall, on behalf of the Trust, cause to be filed with
the Commission any periodic reports required to be filed under the provisions of
the Exchange Act and the rules and regulations of the Securities and Exchange
Commission thereunder.
40
ARTICLE V
ACCOUNTS; DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 5.1. Establishment of the Accounts. (a) The
Servicer shall establish and maintain:
(i) the Collection Account in the name of the
Trustee bearing a designation clearly indicating
that the funds deposited therein are held for
the benefit of the Certificateholders;
(ii) the Class A Distribution Account in the name of
the Trustee bearing a designation clearly
indicating that the funds deposited therein are
held for the benefit of the Class A
Certificateholders; and
(iii) the Class B Distribution Account in the name of
the Trustee bearing a designation clearly
indicating that the funds deposited therein are
held for the benefit of the Class B
Certificateholders.
Each Account shall be an Eligible Deposit Account established
initially at Chase.
(b) The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Accounts (excluding the Seller's
interest in the Retained Yield) and in all proceeds thereof (excluding
Investment Earnings) and all such funds shall be part of the property of the
Trust. The Accounts shall be under the sole dominion and control of the Trustee.
Should any depositary of an Account (including Chase (or an Affiliate thereof))
cease to be either a Qualified Institution or a Qualified Trust Institution, as
applicable, then the Servicer shall, with the Seller's assistance as necessary,
cause the related Account to be moved to a Qualified Institution or a Qualified
Trust Institution, unless the Rating Agency Condition is satisfied in connection
with such depositary's ceasing to be a Qualified Institution or a Qualified
Trust Institution, as the case may be.
All amounts held in the Collection Account shall be invested
by the bank or trust company then maintaining the account (at the written
direction of the Servicer or, if Investment Earnings on amounts on deposit in
the Collection Account are not being paid to the Servicer, the Seller) in
Permitted Investments that mature not later than the Deposit Date next
succeeding the date of investment except, if the Collection Account is
maintained with the Trustee, for investments on which the Trustee is the obligor
(including repurchase agreements on which the Trustee in its commercial capacity
is liable as
41
principal), which investments may mature on the next succeeding Distribution
Date; provided, however, that once such amounts have been invested by such bank
or trust company, as applicable, in Permitted Investments, such Permitted
Investments must be held or maintained until they mature on or before the dates
described above. Amounts on deposit in the Reserve Account will be distributed
in the manner set forth in Section 5.5.
SECTION 5.2. Collections. (a) The Servicer shall remit daily
within forty-eight hours of receipt to the Collection Account all payments by or
on behalf of the Obligors on the Receivables and all Liquidation Proceeds
(including any Retained Yield), both as collected during the Collection Period.
Chase USA has requested that, so long as it is acting as the Servicer, the
Servicer be permitted to make remittances of collections on a less frequent
basis than that specified in the immediately preceding sentence. It is
understood that such less frequent remittances may be made only on the specific
terms and conditions set forth below in this Section 5.2 and only for so long as
such terms and conditions are fulfilled. Accordingly, notwithstanding the
provisions of the first sentence of this Section 5.2, the Servicer shall remit
such collections to the Collection Account in Automated Clearinghouse
Corporation next-day funds or immediately available funds no later than 11:00
a.m., New York City time, on the Deposit Date but only for so long as (i) the
short-term certificate of deposit or debt ratings of the Servicer are at least
"P-1" by Moody's, "F-1" by Fitch (if rated by Fitch) and "A-1" by Standard &
Poor's or the Rating Agency Condition is satisfied as a result of Collections
being remitted on a monthly, rather than daily, basis and (ii) the Servicer
shall be Chase USA or Chase. Upon remittance by the Servicer of Collections to
the Collection Account pursuant to the preceding sentence, the Paying Agent
shall provide written notice to the Trustee no later than 11 a.m., New York City
time, on each Deposit Date setting forth the amounts remitted by the Servicer on
such date and, if the Paying Agent fails to provide the Trustee with such
written notice by 12 noon, New York City time, on such Deposit Date, then the
Trustee shall assume that no deposits were made to the Collection Account
pursuant to this Section 5.2 and shall withdraw any amount required from the
Reserve Account for deposit into the Collection Account pursuant to Section 5.6.
For purposes of this Section 5.2 the phrase "payments made on behalf of the
Obligors" shall mean payments made by Persons other than the Seller or the
Servicer. Investment Earnings on amounts on deposit in the Collection Account
will be paid to the Servicer or deposited into the Reserve Account in accordance
with Section 4.8.
(b) Notwithstanding anything in this Agreement to the
contrary, if the Servicer inadvertently deposits amounts that it mistakenly
believes are Collections resulting in the payment in full of a Receivable into
the Collection Account and (i) the Servicer discovers its error prior to the
Distribution Date following such deposit, the Trustee, at the written direction
of
42
the Servicer, shall withdraw such amounts and pay them to the Servicer or (ii)
if the Servicer discovers its error on or after the Distribution Date following
such deposit, the Servicer shall be deemed to have purchased such Receivable
pursuant to Section 4.7 as of the last day of the Collection Period during which
such error shall have occurred.
SECTION 5.3. Advances. (a) As of the Business Day preceding
the related Distribution Date, the Servicer may, in its sole discretion, make a
payment with respect to each Receivable (other than a Defaulted Receivable)
equal to the excess, if any, of (x) the product of the Principal Balance of such
Receivable as of the related Settlement Date and one-twelfth of the Contract
Rate for such Receivable, over (y) the interest actually received by the
Servicer with respect to such Receivable from the Obligor or from payments of
the Repurchase Amount during or with respect to such Collection Period. The
Servicer shall deposit all such Advances into the Collection Account in
Automated Clearinghouse Corporation next-day funds or immediately available
funds no later than 11 a.m., New York City time, on the Deposit Date. The
Servicer may elect not to make any Advance with respect to a Receivable to the
extent that the Servicer, in its sole discretion, shall determine that such
Advance is not recoverable from subsequent payments on such Receivable or from
funds in the Reserve Account. To the extent that the amount set forth in clause
(y) above with respect to a Receivable during or with respect to a Collection
Period plus any amounts withdrawn from the Reserve Account during or with
respect to such Collection Period and allocable to interest with respect to such
Receivable is greater than the amount set forth in clause (x) above with respect
thereto, such amount shall be distributed to the Servicer on the related
Distribution Date pursuant to Section 5.5(a); provided, however, that,
notwithstanding anything else herein, until a Receivable becomes a Defaulted
Receivable, the Servicer shall be reimbursed for any Advance made with respect
to a Receivable only from accrued interest paid from the Obligor under such
Receivable.
(b) On each Deposit Date, the Trustee shall demand a
withdrawal from the Reserve Account in an amount, not to exceed the Available
Reserve Account Amount for such Distribution Date, equal to the amount of all
outstanding Advances with respect to all Receivables that become Defaulted
Receivables during the immediately preceding Collection Period (to the extent
not recovered from Liquidation Proceeds) and shall deposit such amount into the
Collection Account, in Automated Clearinghouse Corporation next-day funds or
immediately available funds, no later than 11 a.m., New York City time, on such
Deposit Date. Such amounts shall be distributed to the Servicer on the related
Distribution Date pursuant to Section 5.5(a).
(c) On each Deposit Date, the Paying Agent shall provide
written notice to the Trustee setting forth the amount, if any, of Advances
deposited by the Servicer in the Collection
43
Account no later than 11 a.m., New York City time, on such Deposit Date and, if
the Paying Agent fails to provide the Trustee with such written notice by 12
noon, New York City time, on such Deposit Date, then the Trustee shall assume
that no Advances were deposited to the Collection Account pursuant to this
Section 5.3.
SECTION 5.4. Additional Deposits. The Servicer, or the Seller,
as the case may be, shall deposit into the Collection Account the aggregate
Repurchase Amount pursuant to Sections 3.2, 4.7 and 11.2, as applicable. All
remittances shall be made to the Collection Account, in Automated Clearinghouse
Corporation next-day funds or immediately available funds, no later than 11
a.m., New York City time, on the Deposit Date.
SECTION 5.5. Distributions. Not later than 11:00 a.m., New
York City time, on each Distribution Date, at the Servicer's direction, the
Trustee, or the Paying Agent on behalf of the Trustee, shall cause to be made
the following distributions, to the extent of the Total Distribution Amount then
on deposit in the Collection Account and amounts withdrawn from the Reserve
Account and deposited in the Collection Account by wire transfer of immediately
available funds, in the following order of priority and in the amounts set forth
in the Servicer's Certificate for such Distribution Date:
(a) to the Servicer, by wire transfer of immediately
available funds, in reimbursement of Advances from amounts on deposit in the
Collection Account allocable to interest under the Receivables or from
withdrawals from the Reserve Account (including an amount equal to the accrued
interest on Defaulted Receivables and Repurchased Receivables to the extent
available in the Collection Account), the amount payable to the Servicer
pursuant to Section 5.3;
(b) to the extent of the sum of Available Interest (after
reimbursement of Advances pursuant to Section 5.5(a)) and any Available Reserve
Account Amount remaining after any withdrawal from the Reserve Account in
respect of Advances pursuant to Section 5.3(b) on the related Deposit Date (and,
in the case of shortfalls occurring under clause (ii) below in the Class A
Interest Distributable Amount, the Class B Percentage of Available Principal to
the extent of such shortfalls), in the following priority:
(i) to the Servicer, any unpaid Servicing Fee for the
preceding Collection Period, plus the amount of any Servicing
Fee previously due but not paid, if any, to the extent such
amounts are not deducted from the Servicer's remittance to the
Collection Account pursuant to Section 5.7;
44
(ii) to the Class A Distribution Account, the
Class A Interest Distributable Amount for such
Distribution Date; and
(iii) to the Class B Distribution Account, the
Class B Interest Distributable Amount for such
Distribution Date.
(c) to the extent of the portion of Available Principal,
Available Interest (after reimbursement of Advances pursuant to Section 5.5(a))
and any Available Reserve Account Amount (after any withdrawal pursuant to
Section 5.3(b) on the related Deposit Date) remaining after the application of
clause (b) above, in the following priority:
(i) to the Class A Distribution Account, the
Class A Principal Distributable Amount for such
Distribution Date;
(ii) to the Class B Distribution Account, the
Class B Principal Distributable Amount for such
Distribution Date; and
(iii) to the Collateral Agent for deposit in the
Reserve Account, any remaining amounts.
(d) On each Distribution Date, the Trustee or the
Paying Agent, as the case may be, will distribute all amounts on deposit in the
Class A Distribution Account to the Class A Certificateholders as of the Record
Date and all amounts on deposit in the Class B Distribution Account to the Class
B Certificateholders as of the Record Date. Amounts distributed from the
Distribution Accounts shall be paid to the related Certificateholders of record,
as of the related Record Date, by check mailed by the Paying Agent (or, if
directed by the Seller in the case of the certificates registered in the name of
the Clearing Agency, by wire transfer of immediately available funds). To the
extent that the Paying Agent wires funds to a Clearing Agency from the
Collection Account, the Paying Agent will request the Seller, the Qualified
Institution or the Qualified Trust Institution then maintaining the Collection
Account to make such wire distribution and the Seller, the Qualified Institution
or the Qualified Trust Institution then maintaining the Collection Account shall
promptly deliver to the Paying Agent a confirmation of such wire distribution.
The Paying Agent shall have no liability in connection with any failure by the
Seller, the Qualified Institution or the Qualified Trust Institution to make
such distribution.
SECTION 5.6. Reserve Account; Assignment of Retained
Yield to Collateral Agent. (a) The Seller shall establish and
maintain an Eligible Deposit Account (the "Reserve Account") at
[_______________________________________], in the name of
[_______________________________________], as Collateral Agent
45
for the benefit of the Certificateholders. The Reserve Account
shall not be property of the Trust.
(b) On the Closing Date, the Seller shall deposit the Reserve
Account Initial Deposit into the Reserve Account. The Seller hereby grants to
the Collateral Agent for the benefit of the Certificateholders all of its right,
title and interest in and to the Retained Yield and the Reserve Account and any
and all property credited thereto from time to time, including, but not limited
to, Permitted Investments, to secure the payment of all amounts due and owing to
the Certificateholders hereunder. By acceptance of their Certificates,
Certificateholders shall be deemed to have appointed
[_______________________________], as Collateral Agent with respect to the
Reserve Account and the Retained Yield.
[_______________________________________] hereby accepts such appointment as
Collateral Agent with respect to the Reserve Account and the Retained Yield.
(c) The Reserve Account shall be under the sole dominion and
control of the Collateral Agent, and the Collateral Agent shall have signature
authority with respect thereto. Should any sole depositary of the Reserve
Account cease to be either a Qualified Institution or a Qualified Trust
Institution, the Seller shall cause the Reserve Account to be moved to a
Qualified Institution or a Qualified Trust Institution, as applicable, unless
the Seller provides the Trustee with a letter from the Rating Agencies to the
effect that the Rating Agency Conditions will be satisfied in connection with
such depositary's ceasing to be a Qualified Institution or a Qualified Trust
Institution, as the case may be.
All amounts held in the Reserve Account shall be invested by
the bank or trust company then maintaining the account (at the written direction
of the Seller) in Permitted Investments that mature not later than the Deposit
Date next succeeding the date of investment, except if the Reserve Account is
maintained with the Trustee, for investments on which the Trustee is the obligor
(including repurchase agreements on which the Trustee in its commercial capacity
is liable as principal), which investments may mature on the next succeeding
Distribution Date; provided, however, that amounts on deposit in the Reserve
Account may be invested in Permitted Investments that mature later than the next
succeeding Deposit Date if the Rating Agency Condition is satisfied.
(d) With respect to the Reserve Account Property:
(i) any Reserve Account Property that constitutes
Physical Property shall be delivered to the Collateral Agent
in accordance with paragraph (a) of the definition of
"Delivery" and shall be held by the Collateral Agent, pending
maturity or disposition;
46
(ii) any Reserve Account Property that is a United
States Security Entitlement held through the Federal Reserve
System pursuant to Federal book-entry regulations shall be
delivered in accordance with paragraph (b) of the definition
of "Delivery" and shall be maintained by the Collateral Agent,
pending maturity or disposition; and
(iii) any Reserve Account Property that is an
"uncertificated security" under Article 8 (or VIII, as
applicable) of the Relevant UCC and that is not governed by
clause (ii) above shall be delivered to the Collateral Agent
in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by the Collateral Agent,
pending maturity or disposition.
The Collateral Agent shall, at the expense of the Servicer, take such action as
is required in writing by the Trustee to maintain the security interest of the
Collateral Agent in any Reserve Account Property as a perfected security
interest under the Relevant UCC; provided, however, that the Collateral Agent
shall not be required to prepare or file any financing statements or
continuation statements and that the Collateral Agent and Trustee may rely upon
the written instructions of the Servicer as to the method by which the security
interest of the Collateral Agent may be perfected. Upon written request from the
Trustee or Collateral Agent, the Servicer shall provide such instructions and an
opinion of counsel with respect to the method of perfecting such security
interest; provided, however, that the Servicer shall not be obligated to deliver
to the Collateral Agent or the Trustee an opinion of counsel with respect to the
method of perfecting a security interest in any Permitted Investment the method
of perfecting a security interest in which was described in that certain legal
opinion of _________________ ____________, special local counsel to the
Collateral Agent, dated __________ __, ____, unless there has been change in law
or the interpretation thereof from the date of such opinion with respect to the
method of perfecting a security interest in such Permitted Investment.
(e) On each Distribution Date, the Collateral Agent shall
withdraw from the Reserve Account and pay to the Seller any Investment Earnings
with respect to amounts on deposit in the Reserve Account and, subject to
Sections 8.4 and 10.7, an amount equal to the excess, if any, of the amount on
deposit in the Reserve Account over the Specified Reserve Account Balance with
respect to such Distribution Date (after giving effect to all deposits therein
or withdrawals therefrom on such Distribution Date). Upon any distribution to
the Seller of amounts from the Reserve Account, neither the Holders nor the
Collateral Agent will have any rights in, or claims, to, such amounts. Amounts
properly distributed to the Seller from the Reserve Account shall not be
available under any circumstances to the Trustee, the
47
Collateral Agent, and the Seller shall not in any event thereafter be required
to refund any such distributed amounts.
(f) On each Deposit Date, the Trustee shall demand a
withdrawal from the Reserve Account, in an amount not to exceed the Available
Reserve Account Amount (after withdrawals from the Reserve Account on the
related Deposit Date pursuant to Section 5.3(b)), equal to the sum of the
excess, if any, of the sum of (i) the Class A Interest Distributable Amount,
Class A Principal Distributable Amount, Class B Interest Distributable Amount
and Class B Principal Distributable Amount, in each case for the Distribution
Date, and the Servicing Fee payable to the Servicer on such Distribution Date,
over (ii) the sum of the Available Interest (after reimbursement of Advances
pursuant to Section 5.5(a)) and Available Principal, in each case for such
Distribution Date. The Trustee shall deposit the amount withdrawn from the
Reserve Account in the Collection Account for application pursuant to Section
5.5.
SECTION 5.7. Net Deposits. Chase USA. (in its capacity as the
Seller or the Servicer) may make the remittances pursuant to Section 5.2 and
Section 5.4 above, net of amounts to be retained by it or distributed to it
(also in any such capacity) pursuant to Section 4.8 (if applicable) and Section
5.5, if (a) it shall be the Servicer and (b) it is entitled, pursuant to Section
5.2, to make deposits on a monthly basis, rather than a daily basis.
Nonetheless, the Servicer shall account for all of the above described amounts
as if such amounts were deposited and distributed separately.
SECTION 5.8. Statements to Certificateholders. On each
Distribution Date, the Servicer shall prepare and furnish to the Trustee and the
Paying Agent, and the Paying Agent shall include with the distribution to each
Certificateholder a statement substantially in the form of Exhibit E, based on
information in the certificate furnished pursuant to Section 4.9, setting forth
for the Collection Period the following information (which in the case of items
(i), (ii) and (iii) shall be expressed in the aggregate and as a dollar amount
per $1,000 of the original principal balance of a Certificate):
(i) the amount of such distribution
allocable to principal on the Class A Certificates and the
Class B Certificates;
(ii) the amount of such distribution
allocable to interest on the Class A Certificates and the Class B
Certificates (specifying specifically the amount of any Class B
Stripped Coupon included therein);
(iii) the amount of the Servicing Fee paid
to the Servicer pursuant to Section 5.5(c);
48
(iv) the Class A Certificate Balance, the
Class A Pool Factor, the Class B Certificate Balance and the Class B
Pool Factor as of such Distribution Date, in each case after giving
effect to payments allocated to principal reported pursuant to clause
(i);
(v) the Pool Balance as of the last day
of the preceding Collection Period;
(vi) the amount of the Aggregate Net
Losses, if any, for such Distribution Date.
(vii) the Class A Interest Carryover
Shortfall, the Class B Interest Carryover Shortfall, the
Class A Principal Carryover Shortfall and the Class B
Principal Carryover Shortfall, if any, for such Distribution
Date;
(viii) the balance of the Reserve Account
on such Distribution Date, after giving effect to changes therein on
such Distribution Date and the amounts deposited into and withdrawn
from the Reserve Account on such Distribution Date;
(ix) the Specified Reserve Account
Balance as of such Distribution Date;
(x) the aggregate Repurchase Amount of
Receivables repurchased by the Seller or purchased by the
Servicer during such Collection Period; and
(xi) the aggregate unreimbursed Advances
as of such Distribution Date and the change in such amount from the
previous Distribution Date and the amount of Advances reimbursed on
such Distribution Date from collections and Liquidation Proceeds and
from withdrawals from the Reserve Account.
Within a reasonable period of time after the end of each
calendar year, but not later than the latest date permitted by law, the Servicer
shall prepare and furnish to the Trustee and the Paying Agent, and the Paying
Agent shall furnish, to each Person who at any time during such calendar year
shall have been a Certificateholder for the purposes of such Certificateholder's
preparation of federal income tax returns, a statement setting forth the sum of
the amounts determined in clauses (i) through (iii) for such calendar year.
49
ARTICLE VI
THE CERTIFICATES
SECTION 6.1. The Certificates. Unless otherwise specified in
this Agreement, the Certificates of each class shall be issued in denominations
of $1,000 and integral multiples thereof; provided, however, that one Class A
Certificate and one Class B Certificate may be issued in a denomination that
represents a residual portion of the Original Class A Certificate Balance and
the Original Class B Certificate Balance, respectively. Upon initial issuance on
the Closing Date, the Class A Certificates and the Class B Certificates shall be
in the form of Exhibit A-1 and Exhibit A-2, respectively, which are incorporated
by reference, and shall be issued as provided in Section 6.8 in an aggregate
amount equal to the Original Class A Certificate Balance and the Original Class
B Certificate Balance, respectively. The Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of an Authorized Officer or
other authorized signatory of the Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
valid and binding obligations of the Trust, notwithstanding that such
individuals shall have ceased to be so authorized prior to the execution,
authentication and delivery of such Certificates or did not hold such offices or
positions at the date of such Certificates. No Certificate shall entitle the
Holder to any benefit under this Agreement, or shall be valid for any purpose,
unless there shall appear on such Certificate an authentication substantially in
the form set forth in Exhibit A-1 or A-2 hereto as applicable, executed by the
Trustee by manual or facsimile signature; such authentication shall constitute
conclusive evidence that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication. A transferee of a Certificate shall become a Certificateholder,
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon due presentment of such Certificate in such
transferee's name pursuant to Section 6.5.
SECTION 6.2. Execution, Authentication and Delivery of
Certificates. The Trustee shall deliver to, or upon the order of, the Seller, in
exchange for the Receivables, the other assets of the Trust and the pledge of
the Reserve Account and amounts on deposit therein and the Retained Yield,
simultaneously with the sale, assignment and transfer to the Trustee of the
Receivables, the constructive delivery to the Trustee of the Receivable Files
and the delivery to the Trustee of the other components of the Trust,
Certificates duly executed by the Trustee, on behalf of the Trust, and
authenticated by the Trustee in authorized denominations equaling in the
aggregate the Original Pool Balance, and evidencing the entire ownership of the
Trust.
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SECTION 6.3. Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the
office or agency to be maintained by a transfer agent and certificate registrar
(the "Transfer Agent and Certificate Registrar"), in accordance with the
provisions of Section 6.7, a register (the "Certificate Register") in which,
subject to such reasonable regulations as it may prescribe, the Transfer Agent
and Certificate Registrar shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. The corporate
trust office of Chase is hereby initially appointed Transfer Agent and
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. In the event that, subsequent
to the date of issuance of the Certificates, Chase notifies the Trustee that it
is unable to act as Transfer Agent and Certificate Registrar, the Trustee shall
act, or the Trustee shall, with the consent of the Seller, appoint another bank
or trust company, having an office or agency located in The City of New York and
which agrees to act in accordance with the provisions of this Agreement
applicable to it, to act, as successor Transfer Agent and Certificate Registrar
under this Agreement.
(b) The Trustee may revoke such appointment and
remove Chase as Transfer Agent and Certificate Registrar if the Trustee
determines in its sole discretion that Chase failed to perform its obligations
under this Agreement in any material respect. Chase shall be permitted to resign
as Transfer Agent and Certificate Registrar upon 30 days' written notice to the
Trustee, the Seller and the Servicer; provided, however, that such resignation
shall not be effective and Chase shall continue to perform its duties as
Transfer Agent and Certificate Registrar until the Trustee has appointed a
successor Transfer Agent and Certificate Registrar with the consent
of the Seller.
(c) Upon surrender for registration of transfer
of any Certificate at the office or agency of the Transfer Agent and Certificate
Registrar maintained pursuant to Section 6.7, the Trustee shall execute,
authenticate and (if the Transfer Agent and Certificate Registrar is different
than the Trustee, then the Transfer Agent and Certificate Registrar shall)
deliver (or shall cause Chase as its authenticating agent to authenticate and
deliver), in the name of the designated transferee or transferees, one or more
new Class A Certificates or Class B Certificates, as the case may be, in
authorized denominations of a like aggregate amount dated the date of
authentication by the Trustee or any authenticating agent. At the option of a
Certificateholder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 6.7.
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(d) Whenever any Certificate is surrendered
for exchange, the Trustee shall execute, authenticate and (if the Transfer Agent
and Certificate Registrar is different than the Trustee, then the Transfer Agent
and Certificate Registrar shall) deliver the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Transfer Agent and Certificate Registrar duly executed by the
Holder, which signature on such assignment must be guaranteed by a member of the
New York Stock Exchange or a commercial bank or trust company.
Each Certificate surrendered for registration of
transfer or exchange shall be cancelled by the Transfer Agent and Certificate
Registrar and disposed of by the Trustee or Transfer Agent and Certificate
Registrar in accordance with its customary practice.
(e) No service charge shall be made for any
registration of transfer or exchange of Certificates, but the Transfer Agent and
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(f) An institution succeeding to the
corporate agency business of the Transfer Agent and Certificate Registrar shall
continue to be the Transfer Agent and Certificate Registrar without the
execution or filing of any paper or any further act on the part of the Trustee
or such Transfer Agent and Certificate Registrar.
(g) The Class B Certificates may not be
acquired by or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) which is subject to the provisions of Title I of ERISA, (ii) a plan
(as defined in Section 4975(e)(1) of the Code other than a governmental or
church plan described in Section 4975(g)(2) or (3) of the Code), or (iii) any
entity whose underlying assets include "plan assets" by reason of any such
plan's investment in the entity (excluding any investment company that is
registered under the Investment Company Act of 1940, as amended) (each, a
"Benefit Plan"). By accepting and holding a Class B Certificate, the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan, and that no assets of a Benefit Plan were used to acquire such
Class B Certificate. The foregoing restrictions shall not apply to acquisitions
of Class B Certificates with assets of the general account of an insurance
company, to the extent that the acquisition of such Class B Certificates (i) is
and will be permissible under Section 401(c) of ERISA and final regulations
thereunder or another exemption under ERISA and (ii)
52
does not and will not result in the contemplated operations of the Trust being
treated as non-exempt prohibited transactions.
SECTION 6.4. Mutilated, Destroyed, Lost, or Stolen
Certificates. If (a) any mutilated Class A Certificate or Class B Certificate
shall be surrendered to the Transfer Agent and Certificate Registrar, or if the
Transfer Agent and Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss, or theft of any Class A Certificate or
Class B Certificate and (b) there shall be delivered to the Trustee and the
Transfer Agent and Certificate Registrar such security or indemnity as may be
required to save each of them harmless then, in the absence of notice to the
Trustee that such Class A Certificate or Class B Certificate shall have been
acquired by a bona fide purchaser, the Trustee on behalf of the Trust shall
execute, authenticate and (if the Transfer Agent and Certificate Registrar is
different from the Trustee, the Transfer Agent and Certificate Registrar shall)
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Class A Certificate or Class B Certificate, a new Class A Certificate or
Class B Certificate, as the case may be, of like tenor and denomination but
bearing a number not contemporaneously outstanding. In connection with the
issuance of any new Certificate under this Section 6.4, the Trustee or the
Transfer Agent and Certificate Registrar, as the case may be, may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 6.4 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not a lost, stolen, or
destroyed Certificate shall be found at any time.
SECTION 6.5. Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, the Trustee, the Paying Agent,
the Transfer Agent and Certificate Registrar or any agent of any of them may
treat the Person in whose name any Certificate shall be registered as the owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 5.5(d) and for all other purposes whatsoever, and none of the Trustee,
the Paying Agent, the Transfer Agent and Certificate Registrar or any agent of
any of them shall be bound by any notice to the contrary.
SECTION 6.6. Access to List of Certificateholders' Names and
Addresses. The Transfer Agent and Certificate Registrar shall furnish or cause
to be furnished to the Servicer or the Paying Agent (or to the Trustee if the
Trustee is not the Transfer Agent and Certificate Registrar), within 15 days
after receipt by the Transfer Agent and Certificate Registrar of a request
therefor from the Servicer, the Trustee or the Paying Agent in writing, in such
form as the Servicer, the Trustee or the Paying Agent may reasonably require, a
list of the names and addresses of the Certificateholders as of the most recent
Record Date. If, at such time, if any, as Definitive Certificates have
53
been issued, three or more Certificateholders, or one or more Holders of
Certificates aggregating not less than 25% of the sum of the Class A Certificate
Balance and the Class B Certificate Balance as a single class apply in writing
to the Transfer Agent and Certificate Registrar (or the Trustee if the Trustee
is acting as the Transfer Agent and Certificate Registrar), and such application
states that the applicants desire to communicate with other Certificateholders
with respect to their rights under this Agreement or under the Certificates, and
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Transfer Agent and Certificate
Registrar shall, within five (5) Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Certificateholder, by receiving and
holding a Certificate, shall be deemed to have agreed to hold neither the
Servicer, the Trustee, the Transfer Agent and Certificate Registrar nor any of
their respective agents accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 6.7. Maintenance of Office or Agency. The
Transfer Agent and Certificate Registrar shall maintain in The
City of New York an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or
exchange. The Transfer Agent and Certificate Registrar initially
designates its corporate trust office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ as its office for such
purposes. The Transfer Agent and Certificate Registrar shall
give prompt written notice to the Trustee, the Servicer and to
Certificateholders of any change in the location of such office
or agency.
SECTION 6.8. Book-Entry Certificates. Upon original issuance,
the Class A Certificates and the Class B Certificates, other than the Class A
Certificate representing the residual amount of the Original Class A Certificate
Balance, shall be issued in the form of typewritten Certificates representing
the Book-Entry Certificates, to be delivered to The Depository Trust Company,
the initial Clearing Agency, by or on behalf of the Seller. The Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Class A Certificates or the Class B Certificates, as the case may be,
except as provided in Section 6.10. Unless and until definitive, fully
registered Certificates ("Definitive Certificates") have been issued to Class A
Certificateholders or Class B Certificateholders pursuant to Section 6.10:
(i) the provisions of this Section 6.8 shall be in
full force and effect;
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(ii) the Seller, the Servicer, the Paying Agent, the
Transfer Agent and Certificate Registrar and the Trustee may
deal with the Clearing Agency, and the Clearing Agency Participants for
all purposes of this Agreement (including the making of distributions
on the Certificates and the taking of actions by the
Certificateholders) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of
this Section 6.8 conflict with any other provisions of this Agreement,
the provisions of this Section 6.8 shall control;
(iv) the rights of Certificate Owners
shall be exercised only through the Clearing Agency (or to the extent
Certificate Owners are not Clearing Agency Participants through the
Clearing Agency Participants through which such Certificate Owners own
Book-Entry Certificates), and shall be limited to those established by
law and agreements between such Certificate Owners and the Clearing
Agency and/or the Clearing Agency Participants and all references in
this Agreement to actions by Certificateholders shall refer to actions
taken by the Clearing Agency upon instructions from the Clearing Agency
Participants, and all references in this Agreement to distributions,
notices, reports and statements to Certificateholders shall refer to
distributions, notices, reports and statements to the Clearing Agency,
as registered holder of the Certificates, as the case may be, for
distribution to Certificate Owners in accordance with the procedures of
the Clearing Agency; and
(v) pursuant to the Depository Agreement, and unless
Definitive Certificates are issued pursuant to Section 6.10, the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions
of principal and interest on the Certificates to the Clearing Agency
Participants, for distribution by such Clearing Agency Participants to
the Certificate Owners or their nominees.
SECTION 6.9. Notices to Clearing Agency. Whenever notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to Certificate
Owners pursuant to Section 6.10, the Trustee and the Paying Agent shall give all
such notices and communications specified herein to be given by it to
Certificateholders to the Clearing Agency.
SECTION 6.10. Definitive Certificates. If (i) the Servicer
advises the Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities under the Depository Agreement,
and the Servicer is unable to locate a qualified successor, (ii) the Servicer,
at its option, elects to terminate the book-entry system through the
55
Clearing Agency or (iii) after the occurrence of an Event of Servicing
Termination, Class A Certificate Owners representing in the aggregate not less
than a majority of the Class A Certificate Balance or Class B Certificate Owners
representing in the aggregate not less than a majority of the Class B
Certificate Balance, as the case may be, advise the Trustee and the Clearing
Agency through the Clearing Agency Participants in writing, and if the Clearing
Agency shall so notify the Trustee, that the continuation of a book-entry system
through the Clearing Agency is no longer in the related Certificate Owners' best
interests, the Trustee shall notify the Clearing Agency of the occurrence of any
event described above, which shall be responsible to notify the Certificate
Owners with respect to Class A Certificates or Class B Certificates or both, as
the case may be, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners with respect to Class A
Certificates or Class B Certificates or both, as the case may be, requesting the
same. Upon surrender to the Transfer Agent and Certificate Registrar by the
Clearing Agency of the Class A Certificates or the Class B Certificates or both,
as the case may be, registered in the name of such Clearing Agency, or its
nominee, accompanied by re-registration instructions from the Clearing Agency
for registration of the Definitive Certificates, the Trustee shall execute,
authenticate and (if the Transfer Agent and Certificate Registrar is different
than the Trustee, then the Transfer Agent and Certificate Registrar shall)
deliver Definitive Certificates in accordance with the instructions of the
Clearing Agency. The Servicer shall arrange for, and will bear all costs of, the
printing and issuance of such Definitive Certificates. None of the Seller, the
Servicer, the Transfer Agent and Certificate Registrar or the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying upon such instruction. Upon the issuance
of Definitive Certificates, all references herein to obligations imposed upon or
to be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Transfer Agent and Certificate Registrar, to the extent
applicable with respect to such Definitive Certificates and the Trustee, the
Paying Agent and the Transfer Agent and Certificate Registrar shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder.
SECTION 6.11. Appointment of Paying Agent.
(a) The Paying Agent shall have the revocable
power to withdraw funds from the Accounts and make distributions to the
Certificateholders, the Servicer and the Collateral Agent pursuant to Section
5.5. The Trustee may revoke such power and remove the Paying Agent, if the
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect
or for other good cause. The Paying Agent shall initially be the corporate trust
office of Chase. Chase shall be permitted to resign as Paying Agent upon 30
days' written notice to the
56
Servicer and the Trustee. In the event that Chase shall no longer be the Paying
Agent, the Trustee shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company and may be the Trustee) with the consent of the
Seller, which consent shall not be unreasonably withheld. If at any time the
Trustee shall be acting as the Paying Agent, the provisions of Sections 10.1,
10.3 and 10.4 shall apply to the Trustee in its role as Paying Agent.
(b) The Trustee shall cause the Paying Agent
(other than itself and Chase) to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee that such
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders and shall
agree, and if the Trustee is the Paying Agent it hereby agrees, that it shall
comply with all requirements of the Code regarding the withholding by the
Trustee of payments in respect of federal income taxes due from Certificate
Owners.
(c) 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 Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and (ii) shall comply with all requirements of the Code
regarding the withholding by the Trustee of payments in respect of federal
income taxes due from Certificate Owners.
(d) 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 Trustee or such Paying Agent.
SECTION 6.12. Authenticating Agent.
(a) The Trustee may appoint one or more
authenticating agents with respect to the Certificates which shall be authorized
to act on behalf of the Trustee in authenticating the Certificates in connection
with the issuance, delivery, registration of transfer, exchange or repayment of
the Certificates. The Trustee hereby appoints the corporate trust office of
Chase as Authenticating Agent for the authentication of Certificates upon any
registration of transfer or exchange of such Certificates. Whenever reference is
made in this Agreement to the authentication of Certificates by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent. Each authenticating agent (other than Chase) shall be
acceptable to the Seller.
57
(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 Trustee or such authenticating agent.
(c) An authenticating agent may at any time
resign by giving written notice of resignation to the Trustee and the Seller.
The Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to the Seller.
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
Trustee or the Seller, the Trustee promptly may appoint a successor
authenticating agent with the consent of the Seller. 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 Seller.
(d) The Servicer shall pay the Authenticating
Agent from time to time reasonable compensation for its services under this
Section 6.12.
(e) The provisions of Sections 10.1, 10.3 and
10.4 shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under
this Section 6.12, the Certificates may have endorsed thereon, in lieu of the
Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the certificates referred to in the within
mentioned Agreement.
-----------------------,
as Trustee
By:
------------------------------------
Authorized Officer
or
----------------------------------
as Authenticating Agent
for the Trustee,
----------------------------------
Authorized Officer
58
SECTION 6.13. Actions of Certificateholders.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Agreement to
be given or taken by Certificateholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Certificateholders 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 Trustee and,
when required, to the Seller 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 Trustee, the Seller and
the Servicer, if made in the manner provided in this Section 6.13.
(b) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Trustee deems sufficient.
(c) Any request, demand, authorization,
direction, notice, consent, waiver or other act by a Certificateholder shall
bind every Holder of every Certificate issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
or omitted to be done, by the Trustee, the Seller or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate.
(d) The Trustee may require such additional
proof of any matter referred to in this Section 6.13 as it shall deem
necessary.
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ARTICLE VII
THE SELLER
SECTION 7.1. Representations of Seller. The Seller makes the
following representations on which the Trustee shall rely in accepting the
Receivables in trust and authenticating the Certificates. The representations
shall speak as of the execution and delivery of this Agreement, and shall
survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing.
The Seller has been duly organized and is validly existing as a
national banking association in good standing under the laws of the
United States of America, with power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at
all relevant times, and has, power, authority, and legal right to
acquire and own the Receivables.
(ii) Power and Authority. The Seller
has the power and authority to execute and deliver this Agreement and
to carry out its terms, the Seller has full power and authority to sell
and assign the property to be sold and assigned to the Trustee as part
of the Trust and has duly authorized such sale and assignment to this
Trustee by all necessary corporate action; and the execution, delivery,
and performance of this Agreement has been duly authorized by the
Seller by all necessary corporate action.
(iii) Valid Sale; Binding Obligations.
This Agreement effects a valid sale, transfer, and assignment of the
Receivables, enforceable against creditors of and purchasers from the
Seller; and constitutes a legal, valid, and binding obligation of the
Seller enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(iv) No Violation. The consummation
of the transactions contemplated by this Agreement and the fulfillment
of the terms hereof do not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or without notice
or lapse of time) a default under, the articles of association or
bylaws of the Seller, 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 Seller is a party or by which it is bound;
nor result in the creation or imposition of any Lien
60
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 Seller's knowledge, any order, rule, or regulation applicable to
the Seller of any court or of any federal or state regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(v) No Proceedings. There are no
proceedings or investigations pending, or, to the Seller's best
knowledge, threatened, before any court, regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Seller or its properties: (a) asserting the
invalidity of this Agreement or the Certificates, (b) seeking to
prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, (c) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or the Certificates, or (d) relating
to the Seller and which might adversely affect the federal income tax
attributes of the Certificates.
SECTION 7.2. Liability of Seller; Indemnities. The Seller
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller in such capacity under this Agreement and
shall have no other obligations or liabilities hereunder.
The Seller shall indemnify, defend and hold harmless the
Trustee and the Trust from and against any taxes that may at any time be
asserted against the Trust with respect to, and as of the date of, the sale of
the Receivables to the Trust or the issuance and original sale of the
Certificates, including any sales, gross receipts, general corporation, tangible
or intangible personal property, privilege, or license taxes (but not including
any taxes asserted with respect to ownership of the Receivables or federal or
other income taxes, including franchise taxes measured by net income), arising
out of the transactions contemplated by this Agreement, and costs and expenses
in defending against the same.
The Seller shall indemnify, defend, and hold harmless the
Trustee or the Trust from and against any loss, liability or expense incurred by
reason of (i) the Seller's wilful misfeasance, bad faith, or negligence in the
performance of its duties hereunder, or by reason of reckless disregard of the
obligations and duties hereunder and (ii) the Seller's violation of federal or
state securities laws in connection with the registration of the sale of the
Certificates.
Indemnification under this Section 7.2 shall include
reasonable fees and expenses of counsel and expenses of
61
litigation. If the Seller shall have made any indemnity payments to the Trust
pursuant to this Section 7.2 and the Trust thereafter shall collect any of such
amounts from others, the Trust shall repay such amounts to the Seller, without
interest.
SECTION 7.3. Merger or Consolidation of Seller. Any
corporation or other entity (i) into which the Seller may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Seller shall be a party, or (iii) which may succeed
to all or substantially all of the business of the Seller, which corporation or
other entity shall be bound to perform every obligation of the Seller under this
Agreement, shall be the successor to the Seller hereunder without the execution
or filing of any document or any further act by any of the parties to this
Agreement. The Seller shall give prompt written notice of any merger or
consolidation to the Trustee, the Servicer, the Collateral Agent and the Rating
Agencies.
SECTION 7.4. Limitation on Liability of Seller and Others. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Seller shall not be under any obligation under this Agreement to
appear in, prosecute, or defend any legal action that shall be unrelated to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 7.5. Seller May Own Certificates. The Seller and any
of its Affiliates may in its individual or any other capacity become the owner
or pledgee of Certificates with the same rights as it would have if it were not
the Seller or an Affiliate thereof, except as otherwise provided in the
definition of "Class A Certificateholder" and "Class B Certificateholder"
specified in Section 1.1. Certificates so owned by or pledged to the Seller or
any Affiliates shall have an equal and proportionate benefit under the
provisions of this Agreement, without preference, priority, or distinction as
among all of the Certificates.
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ARTICLE VIII
THE SERVICER
SECTION 8.1. Representations of Servicer. The Servicer makes
the following representations on which the Trustee shall rely in accepting the
Receivables in trust and authenticating the Certificates. The representations
shall speak as of the execution and delivery of this Agreement (or as of a date
a Person (other than the Trustee) becomes a Servicer pursuant to Section 8.3 or
9.2), and shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing.
The Servicer has been duly organized and is validly existing as a
national banking association or corporation and is in good standing
under the laws of the United States of America or the jurisdiction of
its incorporation, with power and authority to own its properties and
to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and
has, power, authority, and legal right to acquire, own, sell, and
service the Receivables and to hold the Receivable Files as custodian
on behalf of the Trustee.
(ii) Power and Authority. The Servicer
has the power and authority to execute and deliver this Agreement and
to carry out its terms; and the execution, delivery, and performance of
this Agreement has been duly authorized by the Servicer by all
necessary corporate action.
(iii) Binding Obligations. This
Agreement constitutes a legal, valid, and binding obligation of the
Servicer enforceable in accordance with its terms subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization,
liquidation or other similar laws and equitable principles relating
to or affecting the enforcement of creditors' rights, whether
considered in a proceeding at law or in equity.
(iv) No Violation. The consummation
of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the articles of
association or bylaws of the Servicer, 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 Servicer 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
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violate any law or, to the best of the Servicer's knowledge, any order,
rule, or regulation applicable to the Servicer of any court or of any
federal or state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Servicer or
its properties.
(v) No Proceedings. There are no
proceedings or investigations pending, or to the Servicer's best
knowledge, threatened, before any court, regulatory body,
administrative agency, or other governmental instrumentality having
jurisdiction over the Servicer or its properties: (a) asserting the
invalidity of this Agreement or the Certificates, (b) seeking to
prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, (c) seeking any
determination or ruling that might materially and adversely affect the
performance by the Servicer of its obligations under, or the validity
or enforceability of, this Agreement or the Certificates, or (d)
relating to the Servicer and which might adversely affect the federal
income tax attributes of the Certificates.
(vi) Fidelity Bond. The Servicer
maintains a fidelity bond in such form and amount as is customary for
banks acting as custodian of funds and documents in respect of retail
automotive installment sales contracts.
SECTION 8.2. Liability of Servicer; Indemnities. The Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement and shall have no
other obligations or liabilities hereunder.
(i) The Servicer shall defend,
indemnify, and hold harmless the Trustee, the Trust and the
Certificateholders from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or resulting
from the use, ownership, or operation by the Servicer or any Affiliate
thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify,
defend, and hold harmless the Trustee and the Trust from and
against any taxes that may at any time be asserted against
the Trust with respect to the transactions contemplated in
this Agreement, including, without limitation, any sales,
gross receipts, general corporation, tangible or intangible
personal property, privilege, or license taxes (but not
including any taxes asserted with respect to, and as of the
date of, the sale of the Receivables to the Trust or the
issuance and original sale of the Certificates, or asserted
with respect to ownership of the Receivables or federal or
other income taxes, including franchise taxes measured by
net income) arising out of distributions on the Certificates
and costs and expenses in defending against the same.
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(iii) The Servicer shall indemnify,
defend, and hold harmless the Trustee and the Trust and the
Certificateholders from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that such cost,
expense, loss, claim, damage, or liability arose out of, or was
imposed upon the Trustee and the Trust or the Certificateholders
through the wilful misfeasance, gross negligence, or bad faith of the
Servicer in the performance of its duties under this Agreement or by
reason of reckless disregard of its obligations and duties under this
Agreement.
Indemnification under this Section 8.2 shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section 8.2 and
the recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts to the Servicer, without interest. The
indemnification obligations of the Servicer set forth in this Section 8.2 shall
survive the termination of such Servicer with respect to any act or failure to
act which occurs prior to such Servicer's termination.
SECTION 8.3. Merger or Consolidation of Servicer. Any
corporation or other entity (i) into which the Servicer may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Servicer shall be a party, or (iii) which may succeed
to all or substantially all of the business of the Servicer, which corporation
or other entity shall be bound to perform every obligation of the Servicer here-
under, shall be the successor to the Servicer under this Agreement without the
execution or filing of any document or any further act on the part of any of the
parties to this Agreement. The Servicer shall promptly inform the Trustee, the
Seller, the Collateral Agent and the Rating Agencies in writing of any such
merger or consolidation.
SECTION 8.4. Limitation on Liability of Servicer and
Others.
(a) Neither the Servicer nor any of the
directors, officers, or employees or agents of the Servicer shall be under any
liability to the Trust, the Trustee, or the Certificateholders, except as
provided under this Agreement, for any action taken or for refraining from the
taking of any action pursuant to this Agreement; provided, however, that this
provision shall not protect the Servicer or any such person against any
liability that would otherwise be imposed by reason of wilful misfeasance, gross
negligence, or bad faith in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement. The Servicer and any
director, officer, or employee or agent of the Servicer may rely in good faith
on the advice of counsel or on any document of
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any kind prima facie properly executed and submitted by any Person respecting
any matters arising under this Agreement.
(b) The Servicer, and any director, officer,
employee or agent of the Servicer, shall be indemnified by the Trust and held
harmless against any loss, liability, or expense (including reasonable
attorneys' fees and expenses) incurred in connection with any legal action
relating to the performance of the Servicer's duties under this Agreement, other
than (i) any loss or liability otherwise reimbursable pursuant to this
Agreement; (ii) any loss, liability, or expense incurred solely by reason of the
Servicer's wilful misfeasance, negligence, or bad faith in the performance of
its duties hereunder or by reason of reckless disregard of its obligations and
duties under this Agreement or the Trust Agreement; and (iii) any loss,
liability, or expense for which the Trust is to be indemnified by the Servicer
under this Agreement. Any amounts due the Servicer pursuant to this Section 8.4
shall be payable on a Distribution Date from amounts distributable to the Seller
from the Reserve Account pursuant to Section 5.6(e) (other than Investment
Earnings) after all payments required to be made on such date to the
Certificateholders and the Servicer, and amounts, if any, distributable
therefrom to the Trustee pursuant to Section 10.7, have been paid and any
amounts required to be retained on deposit in the Reserve Account pursuant to
Section 5.6(e) to maintain the amount on deposit therein (exclusive of
Investment Earnings) in an amount equal to the Specified Reserve Account Balance
on such date shall have been made.
(c) Except as provided in this Agreement, the
Servicer shall not be under any obligation to appear in, prosecute, or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties to this Agreement and the interests of the
Certificateholders under this Agreement. In such event, the legal expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs, and liabilities of the Trust, and the Servicer shall be entitled to be
reimbursed therefor. Any amounts due the Servicer pursuant to this Section 8.4
shall be payable on a Distribution Date from amounts distributable to the Seller
from the Reserve Account pursuant to Section 5.6(e) (other than Investment
Earnings) after all payments required to be made on such date to the
Certificateholders and the Servicer, and amounts, if any, distributable
therefrom to the Trustee pursuant to Section 10.7, have been paid and any
amounts required to be retained on deposit in the Reserve Account pursuant to
Section 5.6(e) to maintain the amount on deposit therein (exclusive of
Investment Earnings) in an amount equal to the Specified Reserve Account Balance
on such date shall have been made.
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The Person to be indemnified shall provide the
Trustee with a certificate and accompanying Opinion of Counsel requesting
indemnification and setting forth the basis for such request.
SECTION 8.5. Servicer Not To Resign. Except as permitted by
Section 8.3, the Servicer shall not resign from its obligations and duties under
this Agreement except (i) upon determination that the performance of its duties
shall no longer be permissible under applicable law or (ii) in the event of the
appointment of a successor Servicer, upon satisfaction of the Rating Agency
Condition. Notice of any such determination permitting the resignation of Chase
USA shall be communicated to the Trustee and the Rating Agencies at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time) and any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Trustee concurrently with
such notice. No such resignation shall become effective until the Trustee (which
shall not be obligated to act as successor Servicer if the Servicer has resigned
for a reason other than that the performance of its duties are no longer
permissible under applicable law) or a successor Servicer shall have assumed the
responsibilities and obligations of the Servicer hereunder in accordance with
Section 9.2.
SECTION 8.6. Delegation of Duties. So long as Chase USA (or
any successor thereto in accordance with Section 8.3) or the Trustee acts as
Servicer, the Servicer shall have the right, in the ordinary course of its
business, to delegate any of its duties under this Agreement to any Person. Any
compensation payable to such Person shall be paid by the Servicer from its own
funds and none of the Trust, the Trustee (if not the Servicer), the Collateral
Agent or the Certificateholders shall have any liability to such Person with
respect thereto. Notwithstanding any delegation of duties by the Servicer
pursuant to this Section 8.6, the Servicer shall not be relieved of its
liability and responsibility with respect to such duties, and any such
delegation shall not constitute a resignation within the meaning of Section 8.5
hereof. Any agreement that may be entered into by the Servicer and a Person that
provides for any delegation of the Servicer's duties hereunder shall be deemed
to be between the Servicer and such Person alone, and the Trustee and
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect thereto.
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ARTICLE IX
DEFAULT
SECTION 9.1. Events of Servicing Termination. Any one of the
following events which shall occur and be continuing shall constitute an event
of servicing termination hereunder (each, an "Event of Servicing Termination"):
(i) Any failure by the Servicer to
deliver to the Trustee the Servicer's Certificate for the related
Collection Period, or any failure by the Servicer to deliver to the
Trustee, for distribution to Certificateholders, any proceeds or
payment required to be so delivered under the terms of the
Certificates and this Agreement (or, in the case of a payment or
deposit to be made not later than the Deposit Date, the failure to
make such payment or deposit on such Deposit Date), which failure
continues unremedied for a period of five Business Days after (A)
discovery by an officer of the Servicer or (B) written notice (1) to
the Servicer by the Trustee or (2) to the Trustee and the Servicer by
the Holders of Certificates evidencing not less than 25% of the sum
of the Class A Certificate Balance and the Class B Certificate Balance
voting as a single class;
(ii) Failure on the part of the
Servicer, duly to observe or to perform in any material respect any
other covenants or agreements of the Servicer set forth in the
Certificates or in this Agreement, which failure shall (a) materially
and adversely affect the rights of the Trust or the Certificateholders
(which determination shall be made without regard to the Available
Reserve Account Amount and (b) 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 (1) to the
Servicer by the Trustee or (2) to the Trustee and the Servicer by the
Holders of Certificates evidencing not less than 25% of the sum of the
Class A Certificate and the Class B Certificate Balance voting as a
single class;
(iii) The entry of a decree or order by
a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver, or liquidator
for the Servicer in any insolvency, readjustment of debt, marshalling
of assets and liabilities, or similar proceedings, or for the winding
up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(iv) The consent by the Servicer to
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of or relating to the
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Servicer or of or relating to substantially all of its property; or the
Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations.
Upon the occurrence of an Event of Servicing Termination described above, and in
each and every case and for so long as such Event of Servicing Termination shall
not have been remedied, either the Trustee, or the Holders of Certificates
evidencing not less than a majority of the sum of the Class A Certificate
Balance and the Class B Certificate Balance voting as a single class, by notice
given in writing to the Servicer (and to the Trustee if given by the
Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates or the Receivables or otherwise, shall
pass to and be vested in the Trustee pursuant to this Section 9.1; and, without
limitation, the Trustee shall be hereby authorized and empowered to execute and
deliver, on behalf of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Receivable Files, or otherwise. The predecessor Servicer shall cooperate with
the successor Servicer and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the successor Servicer for administration by it of all
cash amounts that shall at the time be held by the predecessor Servicer for
deposit, shall have been deposited by the Servicer in the Collection Account, or
shall thereafter be received with respect to a Receivable. All reasonable costs
and expenses (including attorneys' fees and disbursements) incurred in
connection with transferring the Receivable Files to the successor Servicer and
amending this Agreement to reflect such succession as Servicer pursuant to this
Section 9.1 shall be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses. The Trustee shall give
written notice of any termination of the Servicer to the Certificateholders and
the Rating Agencies.
SECTION 9.2. Trustee to Act; Appointment of Successor
Servicer. Upon the Servicer's receipt of notice of termination pursuant to
Section 9.1 or resignation pursuant to Section 8.5, the Trustee shall be the
successor in all respects to the Servicer in its capacity as Servicer under this
Agreement, and shall be subject to all the responsibilities, duties and
liabilities arising thereafter relating thereto placed on the Servicer by the
terms and provisions of this Agreement. As
69
compensation therefor, the Trustee shall be entitled to such compensation
(whether payable out of the Collection Account or otherwise) as the Servicer
would have been entitled to under this Agreement if no such notice of
termination or resignation had been given. Notwithstanding the above, the
Trustee may, if it shall be unwilling so to act, or shall, if it shall be
legally unable so to act, appoint, or petition a court of competent jurisdiction
to appoint, any established financial institution (x) having a net worth of not
less than $100,000,000 as of the last day of the most recent fiscal quarter for
such institution and (y) whose regular business shall include the servicing of
automobile receivables, as successor Servicer under this Agreement; provided,
that the appointment of any such successor Servicer is required to satisfy the
Rating Agency Condition. In connection with such appointment, the Trustee may
make such arrangements for the compensation of such successor Servicer out of
payments on Receivables as it and such successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Servicer under this Agreement. The Trustee and such successor Servicer shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Unless the Trustee shall be prohibited by law
from so acting, the Trustee shall not be relieved of its duties as successor
Servicer under this Section 9.2 until the newly appointed successor Servicer
shall have assumed the responsibilities and obligations of the Servicer under
this Agreement.
SECTION 9.3. Notification to Certificateholders. Upon
delivery of written notice by the Trustee to the Servicer or receipt by the
Trustee of written notice of an Event of Servicing Termination from Holders of
Class A Certificates and Class B Certificates evidencing not less than 25% of
the sum of the Class A Certificate Balance and the Class B Certificate Balance
voting as a single class or upon any Servicer termination, or appointment of a
successor Servicer pursuant to this Article IX, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses of
record, to the Seller and to the Rating Agencies.
SECTION 9.4. Waiver of Past Defaults. The Holders of
Certificates evidencing not less than a majority of the sum of the Class A
Certificate Balance and the Class B Certificate Balance voting as a single
class, may, on behalf of all Holders of Certificates, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in the failure to make any required deposits to or payments
from the Collection Account in accordance with this Agreement. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Servicing Termination arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to the
extent expressly so waived. The Servicer
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shall give prompt written notice of any waiver to the Rating
Agencies.
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ARTICLE X
THE TRUSTEE
SECTION 10.1. Duties of Trustee. The Trustee, both prior to
and after the occurrence of an Event of Servicing Termination, shall undertake
to perform such duties and only such duties as are specifically set forth in
this Agreement. If an Event of Servicing Termination known to the Trustee shall
have occurred and shall not have been cured, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and shall use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs; provided,
however, that if the Trustee shall assume the duties of the Servicer pursuant to
Sections 8.5 and 9.2, the Trustee in performing such duties shall use the degree
of skill and attention customarily exercised by a servicer with respect to
automobile receivables that it services for itself.
The Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement; provided, however, that the
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 Servicer to the Trustee pursuant to this Agreement.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own bad faith or wilful misfeasance; provided, however,
that:
(i) Prior to the occurrence of an
Event of Servicing Termination, and after the curing of all such
Events of Servicing Termination that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except
for the performance of such duties and obligations as shall be
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee, the
permissible right of the Trustee to do things enumerated in this
Agreement shall not be construed as a duty and, in the absence of bad
faith on the part of the Trustee, or manifest error, the Trustee may
conclusively rely upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement as to the
truth of the statements made and the correctness of the opinions
expressed therein;
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(ii) The Trustee shall not be
personally liable for an error of judgment made in good faith by an
Authorized Officer of the Trustee, unless it shall be proved that the
Trustee shall have been negligent in ascertaining the pertinent facts;
and
(iii) The Trustee shall not be
personally liable with respect to any action taken, suffered, or
omitted to be taken in good faith in accordance with this Agreement
or at the direction of the Holders of Certificates evidencing not less
than 25% of the sum of the Class A Certificate Balance and the Class B
Certificate Balance voting as a single class, relating to the time,
method, and place of conducting any proceeding or any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
The Trustee shall not be required 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 there
shall be reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability shall not be reasonably
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer (including its
obligations as custodian) under this Agreement except during such time, if any,
as the Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Servicer in accordance with the terms of this
Agreement.
The Trustee shall not be charged with knowledge of an Event of
Servicing Termination until such time as an Authorized Officer shall have actual
knowledge or have received written notice thereof.
Except for actions expressly authorized by this Agreement or,
based upon an Opinion of Counsel, in the best interests of Certificateholders,
the Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or to impair the value of any
Receivable.
All information obtained by the Trustee regarding the Obligors
and the Receivables, whether upon the exercise of its rights under this
Agreement or otherwise, shall be maintained by the Trustee in confidence and
shall not be disclosed to any other Person, other than its counsel, unless such
disclosure is pursuant to the terms of this Agreement or required by any
applicable law or regulation.
In the event that the Paying Agent or the Transfer Agent and
Certificate Registrar shall fail to perform any
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obligation, duty or agreement in the manner or on the day required to be
performed by the Paying Agent or the Transfer Agent and Certificate Registrar,
as the case may be, under this Agreement, the Trustee shall be obligated
promptly upon an Authorized Officer obtaining knowledge thereof to perform such
obligation, duty or agreement in the manner so required to the extent the
information necessary to such performance is reasonably available to the Trustee
after the Trustee has made a reasonable effort to obtain such information. The
Trustee shall not be liable for the acts or omissions of any Paying Agent, any
Authenticating Agent or the Transfer Agent and Certificate Registrar appointed
hereunder with due care by the Trustee hereunder.
SECTION 10.2. Trustee's Assignment of Repurchased Receivables
and Trustee's Certificate. With respect to all Receivables repurchased by the
Seller pursuant to Section 3.2 or purchased by the Servicer pursuant to Section
4.7 or 11.2, the Trustee shall (i) assign, without recourse, representation, or
warranty, to the Seller or the Servicer, as the case may be, all the Trust's
right, title, and interest in and to such Receivable and the other property
conveyed to the Trust pursuant to Section 2.1 with respect to such Receivable,
and all security and documents relating thereto, such assignment being an
assignment outright and not for security and (ii) as soon as practicable after
each date as of which a Receivable shall be assigned to the Seller or the
Servicer, as the case may be, execute a Trustee's Certificate, including the
date of execution of such Trustee's Certificate and the date of the related
Agreement, and accompanied by a copy of the Servicer's Certificate specified for
the related Collection Period. If, in any enforcement suit or legal proceeding,
it shall be held that the Servicer may not enforce a Receivable on the ground
that it shall not be a real party in interest or a holder entitled to enforce
the Receivable, the Trustee shall, at the Servicer's expense, take such steps as
the Trustee or the Servicer deems necessary to enforce the Receivable, including
bringing suit in the Trustee's name or the names of the Trust or the
Certificateholders.
SECTION 10.3. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 10.1:
(i) The Trustee may request, and may
rely and shall be protected in acting or refraining from acting upon
any resolution, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, or other paper or document (including the
annual auditor's report and the letter of independent certified public
accountants described in Section 4.11, the Servicer's Certificate
described in Section 4.9, and the annual compliance statement described
in Section 4.10) believed by it to be genuine and to have been signed
or presented by the proper party or parties.
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(ii) The Trustee may consult with
counsel and any written advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted by it under this Agreement in good faith and
in accordance with such written advice or Opinion of Counsel. A copy
of such written advice or Opinion of Counsel shall be provided to the
Seller, the Servicer and the Rating Agencies.
(iii) The 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 in relation to this Agreement, at the request, order or
direction of any of the Certificateholders pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses, and liabilities that may be incurred therein or thereby;
provided, however, that the Trustee shall have the right to decline to
follow any such request, order or direction if the Trustee, in
accordance with an Opinion of Counsel, determines that the action or
proceeding may not lawfully be taken or if the Trustee in good faith
determines that the action or proceeding so directed would involve it
in personal liability or be unjustly prejudicial to the non-assenting
Certificateholders; provided, further, that nothing contained in this
Agreement shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Servicing Termination (that shall not have
been cured), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(iv) The Trustee shall not be
personally liable for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement.
(v) The Trustee may execute any of the
trusts or powers hereunder or perform any duties under this Agreement
either directly or by or through agents or attorneys or a custodian,
which agents or attorneys shall have any or all of the rights, powers,
duties and obligations of the Trustee conferred on them by such
appointment.
SECTION 10.4. Trustee Not Liable for Certificates or
Receivables. The recitals contained in this Agreement and in the Certificates
shall be taken as the statements of the Seller or the Servicer, as the case may
be, and the Trustee assumes no responsibility for the correctness thereof. The
Trustee shall make no representations as to the validity or sufficiency of this
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Agreement or of the Certificates (other than execution by the Trustee on behalf
of the Trust of, or the authentication on, the Certificates), or of any
Receivable or related document. The Trustee shall have no obligation to perform
any of the duties of the Seller or Servicer unless explicitly set forth in this
Agreement. The Trustee shall at no time have any responsibility or liability for
or with respect to the legality, validity, and enforceability of any security
interest in any Financed Vehicle or any Receivable, or the perfection and
priority of such a security interest or the maintenance of any such perfection
and priority; the filing of any financing or continuation statement in any
public office; the preparation or filing of any report or statement with the
Securities and Exchange Commission; the efficacy of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement; the existence, condition, location, and ownership of any Financed
Vehicle; the existence and enforceability of any theft and physical damage
insurance or credit life or credit disability insurance; the existence and
contents of any Receivable or any computer or other record thereof; the validity
of the assignment of any Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable; any claim or default asserted
against a Receivable; the performance or enforcement of any Receivable; the
compliance by the Seller with any warranty or representation made under this
Agreement or in any related document and the accuracy of any such warranty or
representation (except after the Trustee's receipt of notice or other discovery
of any noncompliance therewith or any breach thereof or as otherwise provided
herein); the satisfaction of any conditions relating to the Receivables; any
investment of monies by the Servicer or any loss resulting therefrom (it being
understood that the Trustee shall remain responsible for any Trust property that
it may hold); the acts or omissions of the Seller, the Servicer (including in
its capacity as custodian hereunder), or any Obligor; an action of the Servicer
taken in the name of the Trustee; or any action by the Trustee taken at the
instruction of the Servicer; provided, however, that the foregoing shall not
relieve the Trustee of its obligation to perform its duties under this
Agreement. Except with respect to a claim based on the failure of the Trustee to
perform its duties under this Agreement or based on the Trustee's wilful
misconduct, negligence, or bad faith, or based on the Trustee's breach of a
representation and warranty specified in Section 10.13, no recourse shall be had
for any claim or defense based on any provision of this Agreement, the
Certificates, or any Receivable or assignment thereof against the Trustee in its
individual capacity. The Trustee shall not have any personal obligation,
liability, or duty whatsoever to any Certificateholder or any other Person with
respect to any such claim or defense, and any such claim or defense shall be
asserted solely against the Trust or any indemnitor who shall furnish indemnity
as provided in this Agreement. The Trustee shall not be accountable for the use
or application by the Seller of any of the Certificates or of the proceeds of
such
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Certificates, or for the use or application of any funds paid to the Servicer in
respect of the Receivables.
SECTION 10.5. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may deal with the Seller and the Servicer in banking transactions with the
same rights as it would have if it were not Trustee.
SECTION 10.6. Trustee's Fees and Expenses. The Servicer shall
covenant and agree to pay to the Trustee, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) for all services
rendered by it in the execution of the trusts created by this Agreement and in
the exercise and performance of any of the powers and duties under this
Agreement of the Trustee, and the Servicer shall pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements, and advances
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) incurred or made by the
Trustee under this Agreement (including expenses, disbursements, and advances
incurred in defense of any action brought against it in connection with this
Agreement) except any such expense, disbursement, or advance as may arise from
its negligence, wilful misfeasance, or bad faith or that is the responsibility
of Certificateholders under this Agreement. The Servicer's obligation to pay
such compensation and expenses shall survive the termination of such Servicer to
the extent that such obligation is a result of services rendered prior to such
Servicer's termination. Additionally, the Servicer, pursuant to Section 10.7,
shall indemnify the Trustee with respect to certain matters, and
Certificateholders, pursuant to Section 12.3, shall upon the circumstances
therein set forth, indemnify the Trustee under certain circumstances. The
provisions of this Section 10.6 shall survive the termination of this Agreement
and the resignation or removal of the Trustee.
SECTION 10.7. Indemnity of Trustee. The Trustee and it agents
and employees shall be indemnified by the Servicer and held harmless against any
loss, liability, or expense (including reasonable attorneys' fees and expenses
and expenses of litigation) arising out of or incurred in connection with the
acceptance or performance of the trusts and duties contained in this Agreement
to the extent that (i) such loss, liability, or expense shall not have been
incurred by reason of the Trustee's wilful misfeasance, bad faith, or
negligence, and (ii) such loss, liability, or expense shall not have been
incurred by reason of the Trustee's breach of its representations and warranties
pursuant to Section 10.13; provided, however, that the obligations of the
Servicer in this Section 10.7 shall survive such Servicer's termination with
respect to the performance of such Servicer prior to such Servicer's
termination; provided, further, that if the Servicer fails to indemnify the
Trustee and
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its agents and employees pursuant to this Section 10.7, then such indemnity
shall be provided from amounts distributable to the Seller from the Reserve
Account pursuant to Section 5.6(e) (other than Investment Earnings) after all
payments required to be made on such date to the Servicer and the
Certificateholders shall have been made and any amounts required to be retained
therein to maintain the amount on deposit in the Reserve Account (exclusive of
Investment Earnings) in an amount equal to the Specified Reserve Account Balance
on such date shall have been retained. The provisions of this Section 10.7 shall
survive the termination of this Agreement and the resignation or removal of the
Trustee.
SECTION 10.8. Eligibility Requirements for Trustee. The
Trustee under this Agreement shall at all times be a state banking corporation
or national banking association organized and doing business under the laws of
such state or the United States of America; authorized under such laws to
exercise corporate trust powers; and having a combined capital and surplus of at
least $100,000,000 as of the last day of the most recent fiscal quarter for such
institution and subject to supervision or examination by federal or state
authorities. If such corporation or national banking association 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 10.8, 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. The long-term unsecured debt of the 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 Rating Agencies. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 10.8, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 10.9.
SECTION 10.9. Resignation or Removal of Trustee. The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee. The Servicer shall provide notice to the Rating Agencies of any
resignation of the Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.8 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall
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be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation, or liquidation, then the Servicer may remove the Trustee. If it
shall remove the Trustee under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 10.9 shall
not become effective until acceptance of appointment by the successor Trustee
pursuant to Section 10.10.
SECTION 10.10. Successor Trustee. Any successor Trustee
appointed pursuant to Section 10.9 shall execute, acknowledge, and deliver to
the Servicer and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor 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 Trustee. The predecessor
Trustee shall deliver to the successor Trustee all documents and statements held
by it under this Agreement and the Servicer and the predecessor 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
Trustee all such rights, powers, duties, and obligations.
No successor Trustee shall accept appointment as provided in
this Section 10.10 unless at the time of such acceptance such successor Trustee
shall be eligible pursuant to Section 10.8.
Upon acceptance of appointment by a successor Trustee pursuant
to this Section 10.10, the Servicer shall mail notice of the successor of such
Trustee under this Agreement to all Certificateholders at their respective
addresses of record, to the Rating Agencies. If the Servicer shall fail to mail
such notice within 10 days after acceptance of appointment by successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense of the
Servicer.
SECTION 10.11. Merger or Consolidation of Trustee. Any
corporation or other entity (i) into which the Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Trustee shall be a party, or (iii) which may succeed
to all or substantially all of
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the corporate trust business of the Trustee, which corporation or other entity
executes an agreement of assumption to perform every obligation of the Trustee
under this Agreement, shall be the successor of the Trustee hereunder, provided
such corporation or other entity shall be eligible pursuant to Section 10.8,
without the execution or filing of any instrument or any further act on the part
of any of the parties hereto. The Trustee shall provide prompt written notice of
any merger or consolidation to the Seller, the Servicer, the Collateral Agent
and the Rating Agencies.
SECTION 10.12. 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 Trust or any Financed Vehicle may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Certificateholders, such title to the Trust,
or any part thereof, and, subject to the other provisions of this Section 10.12,
such powers, duties, obligations, rights, and trusts as the Servicer and the
Trustee may consider necessary or desirable. The Servicer will pay all
reasonable fees and expenses of any co-trustee or separate trustee or separate
trustees. The appointment of any separate trustee or co-trustee shall not
absolve the Trustee of its obligations under this Agreement. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in the case an Event of Servicing Termination shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee or separate trustees under
this Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.8, and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee or separate trustees shall be
required pursuant to Section 10.10.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties, and obliga-
tions conferred or imposed upon the Trustee shall be conferred upon and
exercised or performed by the 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 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
(whether as Trustee under this Agreement or as successor to the
Servicer under this Agreement), the Trustee
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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 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 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.
(iii) The Servicer and the Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, except that, following the occurrence
of an Event of Servicing Termination which has not been cured, the
Trustee acting alone may accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the 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 X. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
properties specified in its instrument of appointment, either jointly with the
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 Trustee. Each such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the
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
Agreement 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
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
SECTION 10.13. Representations and Warranties of
Trustee. The Trustee makes the following representations and
warranties on which the Seller, the Servicer and the
Certificateholders may rely:
(i) Organization and Good Standing. The
Trustee is a banking association duly organized, validly existing, and
in good standing under the laws of the United States of America.
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(ii) Power and Authority. The Trustee has
full power, authority and legal right to execute, deliver, and perform
this Agreement, and has taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement.
(iii) No Violation. The execution, delivery
and performance by the Trustee of this Agreement (a) does not violate
any provision of any law governing the trust powers of the Trustee or,
to the best of the Trustee's knowledge, any order, writ, judgment, or
decree of any court, arbitrator, or governmental authority applicable
to the Trustee or any of its assets, (b) does not violate any provision
of the articles of association or bylaws of the Trustee and (c) does
not conflict with, result in any breach of any of the 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 Trustee is a party or by which it is bound to the extent such
conflict, breach or default would impair the Trustee's obligation or
ability to perform under this Agreement.
(iv) No Governmental Authorization Required.
The execution, delivery and performance by the Trustee of this
Agreement does not require the authorization, consent, or approval of,
the giving of notice to, the filing or registration with, or the taking
of any other action in respect of, any governmental authority or agency
regulating the corporate trust activities of the Trustee.
(v) Due Authorization, Execution and
Delivery. This Agreement has been duly authorized, executed and
delivered by the Trustee and shall constitute the legal, valid, and
binding agreement of the Trustee, enforceable in accordance with its
terms.
SECTION 10.14. Tax Returns. The Servicer shall prepare or
shall cause to be prepared any tax returns required to be filed by the Trust and
furnish to Certificateholders any information required by the Code or the
regulations thereunder and shall remit such returns to the Trustee for signature
at least five days before such returns are due to be filed. The Trustee, upon
request, will furnish the Servicer with all such information known to the
Trustee as may be reasonably required in connection with the preparation of all
tax returns of the Trust, and shall, upon request, execute such returns.
SECTION 10.15. Trustee May Enforce Claims Without Possession
of Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name or in its capacity as Trustee. Any
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recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Certificateholders in respect of
which such judgment has been recovered.
SECTION 10.16. Suits for Enforcement. In case an Event of
Servicing Termination or other default by the Servicer or the Seller hereunder
shall occur and be continuing, the Trustee, in its discretion, may proceed to
protect and enforce its rights and the rights of the Certificateholders under
this Agreement by a suit, action or proceeding in equity or at law or otherwise
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this Agreement
or the enforcement of any other legal, equitable or other remedy, as the
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Trustee or the Certificateholders.
SECTION 10.17. Maintenance of Office or Agency. The
Trustee shall maintain at its expense in The City of New York an office or
offices or agency or agencies where notices and demands to or upon the Trustee
in respect of the Certificates and this Agreement may be served. The Trustee
initially designates _______________________ as its office for such purposes.
The Trustee will give prompt written notice to the Servicer, the Paying Agent,
the Transfer Agent and Certificate Registrar and to Certificateholders of any
change in the location of such office or agency.
SECTION 10.18 [_____________________________ __________], as
Collateral Agent. Notwithstanding anything in this Agreement to the contrary,
references in this Article X to the Trustee shall also refer to
[_________________________ ______________], in its capacity as Collateral Agent
hereunder.
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ARTICLE XI
TERMINATION
SECTION 11.1. Termination of the Trust. The Trust, and the
respective obligations and responsibilities of the Seller, the Servicer and the
Trustee shall terminate with respect to the Certificateholders upon the first to
occur of (i) the Distribution Date next succeeding the Collection Period which
is six months after the maturity or other liquidation of the last Receivable and
the disposition of any amounts received upon liquidation of any property
remaining in the Trust and (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to this Agreement; provided, however, that
in no event shall the Trust created by this Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador to the Court of St. James's, living on
the date of this Agreement. The Servicer shall promptly (but in any event not
later than the first day of the month of the specified Distribution Date) notify
the Trustee, the Paying Agent, the Transfer Agent and Certificate Registrar and
the Rating Agencies in writing of any prospective termination pursuant to this
Section 11.1.
Notice of any termination, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Transfer Agent and Certificate Registrar for payment of the final distribution
and cancellation, shall be given promptly by the Trustee by letter to
Certificateholders mailed not earlier than the 15th day and not later than the
25th day of the Collection Period related to the specified Distribution Date
stating that the Record Date otherwise applicable to such Distribution Date is
not applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Transfer Agent and Certificate Registrar
therein specified. The Trustee shall give such notice to the Transfer Agent and
Certificate Registrar, the Paying Agent and the Rating Agencies at the time such
notice is given to Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 5.5. Upon notification by the Seller, any funds in the Collection
Account after the payment of all amounts owing to the Certificateholders shall
be paid to the Seller.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders upon receipt of the
appropriate records from the Transfer Agent and Certificate Registrar to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within one year
84
after the second notice all the Certificates shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Trustee or the Trustee shall cause to be distributed to the United Way or a
similar charitable organization located or operating in the New York
metropolitan area, as specified by the Servicer; provided, however, that such
funds shall be distributed by the Trustee or the Trustee shall cause to be
distributed no later than three years after the final Distribution Date
specified in the notice referred to in the preceding paragraph.
All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
cancelled by the Transfer Agent and Certificate Registrar and shall be disposed
of in a manner satisfactory to the Trustee and the Seller.
SECTION 11.2. Optional Purchase of All Receivables. As of the
last day of any Collection Period on which the Pool Balance shall be equal to or
less than the Optional Purchase Percentage, the Servicer shall have the option
to purchase the corpus of the Trust. To exercise such option, the Servicer shall
notify the Trustee, the Paying Agent, the Transfer Agent and Certificate
Registrar in writing, no later than the 25th day of such Collection Period,
shall pay the aggregate Repurchase Amount for the Receivables (including
Defaulted Receivables) as of such last day and shall succeed to all interests
in, to and under the Trust property. The payment shall be made in the manner
specified in Section 5.4, and shall be distributed pursuant to Section 5.5. The
Trustee shall not permit the purchase of the corpus of the Trust pursuant to
this Section unless (i) the Servicer's long-term unsecured debt is rated at the
time of such purchase at least "BBB-" by Standard & Poor's and Fitch (if rated
by Fitch) and "Baa3" by Moody's or (ii) the Servicer provides to the Trustee an
Opinion of Counsel in form reasonably satisfactory to the Trustee and in form
and substance satisfactory to the Rating Agencies to the effect that such
purchase will not constitute a fraudulent transfer under applicable state and
federal law.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. Amendment. This Agreement may be amended by the
Seller, the Servicer, the Trustee and the Collateral Agent, with prior notice to
the Rating Agencies but without prior notice to or the consent of any of the
Certificateholders, (i) to cure any ambiguity, to correct or supplement any
provisions in this Agreement or the Certificates which may be inconsistent with
any other provisions herein or therein, to evidence a succession to the Servicer
or the Seller pursuant to this Agreement or to add any other provisions with
respect to matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however, that such
action shall not, as evidenced by an Officer's Certificate and/or an Opinion of
Counsel reasonably acceptable and delivered to the Trustee, adversely and
materially affect the interests of the Trust or any of the Certificateholders
and provided, further, that the Servicer shall deliver written notice of such
changes to each Rating Agency prior to the execution of any such amendment, or
(ii) to effect a transfer or assignment in compliance with Section 12.7(a).
Notwithstanding the foregoing, no amendment modifying the provisions of Section
5.5 or Article VI shall become effective without satisfaction of the Rating
Agency Condition.
This Agreement may also be amended from time to time by the
Seller, the Servicer, the Trustee and the Collateral Agent, with the consent of
the Holders of Certificates evidencing not less than a majority of the sum of
the Class A Certificate Balance and the Class B Certificate Balance voting as a
single class, 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 Certificateholders (including effecting a
transfer or assignment in compliance with Section 12.7(a) of this Agreement);
provided, however, that no such amendment, except with the consent of the
Holders of all Certificates then outstanding, shall (a) increase or reduce in
any manner the amount of, or accelerate or delay the timing of, collections of
payments of Receivables, or distributions that shall be required to be made on
any Certificate, (b) reduce the aforesaid percentage of the sum of the Class A
Certificate Balance and the Class B Certificate Balance, the Holders of which
are required to consent to any such amendment or (c) materially and adversely
affect the interests of either the Class A Certificateholders or the Class B
Certificateholders without the consent of the Holders of Class A Certificates or
Class B Certificates, as the case may be, evidencing not less than a majority of
the Class A Certificate Balance or the Class B Certificate Balance, as the case
may be.
Promptly after the execution of any amendment or
consent referred to in this Section 12.1, the Trustee shall
86
furnish a copy of such amendment or consent to each Certificateholder and to
the Rating Agencies.
It shall not be necessary for the consent of
Certificateholders pursuant to this Section 12.1 to approve the particular form
of any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents and
of evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement. The Trustee shall not be obligated to enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement.
Prior to the execution of any amendment to this Agreement,
other than an amendment permitted pursuant to clause (i) of the first paragraph
of this Section 12.1, such amendment is required to satisfy the Rating Agency
Condition.
SECTION 12.2. Protection of Title to Trust.
(a) The Seller shall execute and file such fi-
nancing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain, and protect the interests of the Trustee and the
Collateral Agent under this Agreement in the Receivables and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Trustee or
the Collateral Agent, as applicable, file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) Neither the Seller nor the Servicer shall
change its name, identity, or corporate structure in any manner that would,
could, or might make any financing statement or continuation statement filed by
the Seller on behalf of the Trustee or the Collateral Agent in accordance with
paragraph (a) above seriously misleading within the meaning of ss. 9-402(7) (or
any comparable section) of the Relevant UCC, unless it shall have given the
Trustee or the Collateral Agent, as applicable, at least 30 days prior written
notice thereof.
(c) The Seller and the Servicer shall give the
Trustee and the Collateral Agent 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 Relevant UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
87
new financing statement. The Servicer shall at all times maintain each office
from which it shall service Receivables, and its principal executive office,
within the United States of America.
(d) The Servicer shall maintain accounts and re-
cords as to each Receivable accurately and in sufficient detail to permit (i)
the reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer
sys- tems so that, from and after the time of sale under this Agreement of the
Receivables to the Trustee, the Servicer's master computer records (including
archives) that shall refer to a Receivable indicate clearly, by numerical code
or otherwise, that such Receivable is owned by the Trust. Indication of the
Trust's ownership of a Receivable shall be deleted from or modified on the
Servicer's computer systems when, and only when, the Receivable shall have been
paid in full, repurchased or assigned pursuant hereto.
(f) If at any time the Seller or the Servicer
shall propose to sell, grant a security interest in, or otherwise transfer any
interest in a new or used automobile to any prospective purchaser, creditor, or
other transferee, the Seller or the Servicer, as the case may be, shall give to
such prospective purchaser, creditor, or other transferee computer tapes,
records, or print-outs (including any restored from archives) that, if they
shall refer in any manner whatsoever to any Receivable, shall indicate clearly
that such Receivable has been sold and is owned by the Trust.
(g) The Servicer shall permit the Trustee and
its agents upon reasonable notice at any time during normal business hours which
does not unreasonably interfere with the Servicer's normal operations or
customer or employee relations to inspect, audit, and make copies of and
abstracts from the Servicer's records regarding the Receivables.
(h) Upon request, the Servicer shall furnish to
the Trustee, within five Business Days, a list of all Receivables by contract
number and name of Obligor then held as part of the Trust, together with a
reconciliation of such list to the Schedule of Receivables attached as Schedule
A to this Agreement and to each of the Servicer Certificates indicating removal
of Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee
and the Collateral Agent:
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(1) upon the execution and delivery of this Agreement, an
Opinion of Counsel either (a) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the Trust in
the Receivables and of the Collateral Agent in the Reserve Account, and reciting
the details of such filings or referring to prior Opinions of Counsel in which
such details are given, or (b) stating that, in the opinion of such counsel, no
such action shall be necessary to preserve and protect such interest; and
(2) on or before March 31 of each year, commencing with March
31, ____, an Opinion of Counsel, dated as of such date, either (a) stating that,
in the opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to preserve and
protect the interest of the Trustee in the Receivables, and reciting the details
of such filings or referring to prior opinions of Counsel in which such details
are given, or (b) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. Notwithstanding the
provisions of Section 12.5, such Opinion of Counsel may be sent by regular
non-certified mail, and such mailed opinion shall be deemed delivered when so
mailed.
(j) The Servicer shall, to the extent required
by applicable law, cause the Certificates to be registered with the Securities
and Exchange Commission pursuant to Section 12(b) or Section 12(g) of the
Exchange Act within the time periods specified in such sections.
(k) For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
SECTION 12.3. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle the Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties to
this Agreement or any of them.
No Certificateholder shall have any right to vote (except as
provided in Section 9.1, Section 9.4, Section 12.1 and this Section 12.3) or in
any manner otherwise control the operation and management of the Trust, or the
obligations of the parties to this Agreement, nor shall anything set forth in
this Agreement or contained in the terms of the Certificates, be
89
construed so as to constitute the Holders as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
person by reason of any action taken pursuant to any provision of this
Agreement.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates evidencing not less than
25% of the sum of the Class A Certificate Balance and the Class B Certificate
Balance voting as a single class, shall have made written request upon the
Trustee to institute such action, suit, or proceeding in its own name as Trustee
under this Agreement and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 30 days after its receipt of
such notice, request, and offer of indemnity, shall have either neglected or
refused to institute any such action, suit or proceeding; no one or more Holders
of Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right, under this Agreement, except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section 12.3, each Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 12.4. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION 12.5. Notices. All demands, notices, and
communications under this Agreement shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, and shall be deemed to have
been duly given upon receipt (a) in the case of the Seller, c/o Chase Automotive
Finance Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Financial Controller, or at such other address as shall be designated by the
Seller in a written notice to the Trustee, (b) in the case of the Servicer, c/o
Chase Automotive Finance Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Financial Controller, or at such other address as shall be
designated by the Servicer in a written notice to the Trustee, (c) in the case
of the Trustee, at ___________________ ______________ Attention:
_________________ and (d) in the case of the Collateral Agent, at
___________________ ______________
90
Attention: _________________. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of record of such Holder. Any notice to a Certificateholder so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder shall receive such
notice. Notices to Obligors pursuant to Section 4.4 herein may be given by first
class mail or by third-class mail, postage prepaid, at the address of record of
such Obligor and shall be deemed received when mailed by the Servicer.
SECTION 12.6. Severability of Provisions. If any one or more
of the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or of
the Certificates or the rights of the Holders thereof.
SECTION 12.7. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 7.3, 8.3, 8.5 and 9.2
neither the Seller nor the Servicer may assign all, or a portion of, its rights,
obligations and duties under this Agreement (except as contemplated in
connection with the Proposed Merger and except for the assignment by the Seller
of a portion of its rights and obligations hereunder to Chase) unless such
transfer or assignment satisfies the Rating Agency Condition. Any transfer or
assignment with respect to the Servicer of all of its rights, obligations and
duties will not become effective until a successor Servicer has assumed the
Servicer's rights, duties and obligations under this Agreement.
SECTION 12.8. Certificates Nonassessable and Fully Paid. The
interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust or for any reason whatsoever, and, upon authentication
thereof by the Trustee pursuant to Section 6.2, each Certificate shall be deemed
fully paid.
SECTION 12.9. Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and the Certificate Owners and their respective successors
and permitted assigns. Except as otherwise provided in this Agreement, no other
person will have any right or obligation hereunder.
SECTION 12.10. Counterparts. This Agreement may be executed in
one or more counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement.
91
SECTION 12.11. Tax Matters. It is intended that the Trust
shall be a grantor trust for federal income tax purposes. All provisions hereof
shall be construed so as to effectuate such intent. In addition, the Seller and
the Certificateholders (by accepting a beneficial interest in a Certificate)
agree to treat the Certificates as representing undivided beneficial ownership
interests in the Receivables (other than the Retained Yield). Moreover, if the
Class B Pass-Through Rate exceeds the Class A Pass-Through Rate, the Seller and
the Certificateholders (by accepting a beneficial interest in a Certificate)
agree to (i) treat the Certificates as representing undivided beneficial
ownership interests in the Receivables (other than the Retained Yield), and (ii)
treat the Class A Certificateholders as having sold, and the Class B
Certificateholders as having purchased, the Class B Stripped Coupon.
92
IN WITNESS WHEREOF, the parties have caused this Pooling and
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
CHASE MANHATTAN BANK USA, N.A,
as Seller and Servicer
By____________________________________________________
Name:
Title:
[_____________________________________________________]
not in its individual capacity
but solely as Trustee
By____________________________________________________
Name:
Title:
[_____________________________________________________]
not in its individual capacity
but solely as Collateral Agent
By____________________________________________________
Name:
Title:
93
SCHEDULE A
[LIST OF RECEIVABLES]
Delivered to the Trustee on
the Closing Date.
94
SCHEDULE B
----------
Location of Receivable Files
----------------------------
Chase Manhattan Bank USA, National Association
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ Floor
SENECA Building
Rochester, New York 14604
Iron Mountain
▇▇▇▇▇ ▇-▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Chase Manhattan Automotive Finance Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
95
EXHIBIT A-1
[FORM OF CLASS A CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN].
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CHASE
MANHATTAN BANK USA, N.A. OR ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE
RECEIVABLES ARE NOT DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
CHASE MANHATTAN AUTO GRANTOR TRUST 199_-_
____% AUTOMOBILE LOAN PASS-THROUGH CERTIFICATE, CLASS A
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of [simple interest]
retail installment sales contracts, purchase money loans and promissory
notes secured by new and used automobiles financed thereby and sold to
the Trustee, as defined below, on behalf of the Trust by Chase
Manhattan Bank USA, National Association.
NUMBER CUSIP
A-1
$---------
THIS CERTIFIES THAT __________ is the registered owner of a
nonassessable, fully paid, fractional undivided interest, in the amount set
forth above, in the Chase Manhattan Auto Grantor Trust 199_-_ (the "Trust")
formed by Chase Manhattan Bank USA, National Association (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
__________ __, ____ (as amended, supplemented or otherwise modified and in
effect from time to time, the "Agreement") between the Seller, acting as Seller
and Servicer, and [___________________________ ____________], as trustee the
"Trustee" and as collateral agent, a summary of certain of the pertinent
provisions of which is set
A-1-1
forth on the reverse hereof. This Certificate is one of the duly authorized
Certificates designated as "____% Automobile Loan Pass-Through Certificates,
Class A" (herein called "Class A Certificates" and together with the "Class B
Certificates", issued concurrently herewith the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
The property of the Trust includes a pool of [simple interest] retail
installment sales contracts, purchase money notes and promissory notes (the
"Receivables") for the purchase of new and used automobiles financed thereby,
all monies due thereunder on or after the Cutoff Date (other than the Retained
Yield), security interests in the vehicles securing the Receivables (the
"Financed Vehicles"), such amounts as from time to time may be held in the
Collection Account and the Distribution Accounts established and maintained by
the Servicer in the name of the Trustee, the rights to proceeds as a result of
the Seller's exercise of its recourse rights against Dealers with respect to the
Receivables, and assignment of the rights of the Seller to receive proceeds from
any Liquidation Proceeds and from any extended warranties, theft and physical
damage, credit life and credit disability insurance policies relating to the
Financed Vehicles or the Obligors, as the case may be, the rights with respect
to any Financed Vehicle that has been repossessed by the Servicer, on behalf of
the Trustee, and the right to receive payments under certain circumstances from
the Reserve Account and the Retained Yield and all proceeds of the foregoing.
Subject to the terms and conditions of the Agreement
(including the availability of funds for distributions) and until the
obligations created by the Agreement shall have terminated in accordance
therewith, there will be distributed on the 15th day of each month or, if such
15th day is not a Business Day, the next succeeding Business Day (the
"Distribution Date"), commencing on __________, __ ____, to the Person in whose
name this Certificate is registered at the close of business on the related
Record Date, such Certificateholder's fractional undivided interest in the
amounts distributable to Class A Certificateholders on such Distribution Date.
Distributions on this Class A Certificate will be made by the
Paying Agent by check mailed to the Class A Certificateholder of record in the
Certificate Register without the presentation or surrender of this Class A
Certificate or the making of any notation hereon, except that if directed by the
Seller in the case of Class A Certificates registered in the name of a Clearing
Agency or Foreign Clearing Agency, as applicable, distributions will be made in
the form of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this Class A
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A
Certificate at the office or agency maintained for that
A-1-2
purpose by the Transfer Agent and Certificate Registrar in The City of New York.
Reference is hereby made to the further provisions of this
Class A Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
All capitalized terms used herein not otherwise defined shall
have the meaning assigned thereto in the Agreement.
Unless the authentication hereon shall have been executed by
an authorized officer of the Trustee or an authenticating agent acting on behalf
of the Trustee, by manual signature, this Class A Certificate shall not entitle
the holder hereof to any benefit under the Agreement or be valid for any
purpose.
A-1-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and
not in its individual capacity, has caused this Certificate to be duly executed.
CHASE MANHATTAN AUTO
GRANTOR TRUST 199_-_
By: [__________________________________________],
By: ______________________________________
Authorized Officer
This is one of the Certificates referred to in
the within-mentioned Agreement.
[______________________________________________],
not in its individual
capacity but solely
as Trustee
By: ____________________________________________
Authorized Officer
or
________________________________________________
as Authenticating Agent
for the Trustee
By: ____________________________________________
Authorized Officer
A-1-4
CHASE MANHATTAN AUTO GRANTOR TRUST ____-_
____% AUTOMOBILE LOAN PASS-THROUGH CERTIFICATES, CLASS A
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights of the
Certificateholders under the Agreement at any time by the Seller, the Servicer
and the Trustee with the consent of the Holders of Certificates evidencing not
less than a majority of the sum of the Class A Certificate Balance and the Class
B Certificate Balance voting as a single class. Any such consent by the Holder
of this Class A Certificate shall be conclusive and binding on such Holder and
on all future Holders of this Class A Certificate and of any Class A Certificate
issued upon registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Class A
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances and with certain exceptions provided therein, without
prior notice to or the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Class A Certificate is
registerable in the Certificate Register upon surrender of this Class A
Certificate for registration of transfer at the office or agency maintained by
the Transfer Agent and Certificate Registrar, in The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Transfer Agent and Certificate Registrar duly executed by the
Holder hereof, which signature to such assignment has been guaranteed by a
member of the New York Stock Exchange or a commercial bank or trust company, and
thereupon one or more new Class A Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Class A Certificates are issuable only as registered
Certificates without coupons in denominations of $1,000 and integral multiples
thereof (except for a single Class A Certificate in a smaller minimum
denomination representing any residual portion of the
A-1-5
Original Class A Certificate Balance). As provided in the Agreement and subject
to certain limitations therein set forth, Class A Certificates are exchangeable
for new Class A Certificates of authorized denominations evidencing the same
aggregate denomination, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange,
but the Transfer Agent and Certificate Agent may require payment of a sum
sufficient to cover any tax or governmental charges payable in connection
therewith.
In the event that the Holder of this Class A Certificate does
not surrender this Class A Certificate for cancellation within six months after
the date specified in the notice regarding the pendency of the final
distribution described on the face hereof, the Trustee shall give a second
notice with respect thereto. If within one year after such second notice this
Class A Certificate shall not have been surrendered for cancellation, the
Trustee may take appropriate steps to contact the Holder hereof. As provided in
the Agreement, any funds remaining in the Trust after exhaustion of such steps
shall be distributed to a charitable organization, such distribution to occur
not later than three years from the date of the final Distribution Date.
The Trustee, the Paying Agent and the Transfer Agent and
Certificate Registrar may treat the Person in whose name this Class A
Certificate is registered as the owner hereof for all purposes, and none of the
Trustee, the Paying Agent or the Transfer Agent and Certificate Registrar shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby with respect to the Certificateholders shall
terminate upon the payment to Certificateholders of all amounts required to be
paid to them pursuant to the Agreement on the Distribution Date next succeeding
the month which is six months after the maturity or liquidation of the last
Receivable and the disposition of all property held as part of the Trust. The
Servicer may, at its option, purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement
A-1-6
of the Certificates; however, such right of purchase is exercisable only as of
the last day of a Collection Period immediately preceding any Distribution Date
as of which the Pool Balance is equal to or less than 5% of the Original Pool
Balance.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DESCRIBED HEREIN).
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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 CLASS B
CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (I) AN EMPLOYEE
BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) WHICH IS SUBJECT TO THE PROVISIONS
OF TITLE I OF ERISA, (II) A PLAN (AS DEFINED IN SECTION 4975(E)(1) OF THE CODE
OTHER THAN A GOVERNMENTAL OR CHURCH PLAN DESCRIBED IN SECTION 4975(G)(2) OR (3)
OF THE CODE), OR (III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS"
BY REASON OF ANY SUCH PLAN'S INVESTMENT IN THE ENTITY (EXCLUDING ANY INVESTMENT
COMPANY THAT IS REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED)
(EACH, A "BENEFIT PLAN"). BY ACCEPTING AND HOLDING A CLASS B CERTIFICATE, THE
HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT
A BENEFIT PLAN, AND THAT NO ASSETS OF A BENEFIT PLAN WERE USED TO ACQUIRE SUCH
CLASS B CERTIFICATE. THE FOREGOING RESTRICTIONS SHALL NOT APPLY TO ACQUISITIONS
OF CLASS B CERTIFICATES WITH ASSETS OF THE GENERAL ACCOUNT OF AN INSURANCE
COMPANY, TO THE EXTENT THE ACQUISITION OF THIS CERTIFICATE IS (i) PERMITTED
UNDER SECTION 401(C) OF ERISA AND FINAL RULES AND REGULATIONS THEREUNDER OR
ANOTHER EXEMPTION UNDER ERISA AND (ii) DOES NOT AND WILL
A-2-1
NOT RESULT IN THE CONTEMPLATED OPERATIONS OF THE TRUST BEING TREATED AS
NON-EXEMPT TRANSACTIONS].
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF CHASE
MANHATTAN BANK USA, N.A. OR ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE
RECEIVABLES ARE NOT DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
CHASE MANHATTAN AUTO GRANTOR TRUST 199_-_
____% AUTOMOBILE LOAN PASS-THROUGH CERTIFICATE, CLASS B
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of [simple interest]
retail installment sales contracts, purchase money loans and promissory
notes, secured by new and used automobiles financed thereby and sold to
the Trustee, as defined below, on behalf of the Trust by Chase
Manhattan Bank USA, National Association.
NUMBER CUSIP
B-1
$---------
THIS CERTIFIES THAT __________ is the registered owner of a
nonassessable, fully paid, fractional undivided interest, in the amount set
forth above, in the Chase Manhattan Auto Grantor Trust 199_-_ (the "Trust")
formed by Chase Manhattan Bank USA, National Association (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
__________ __, ____ (as amended, supplemented or otherwise modified and in
effect from time to time, the "Agreement") between the Seller, acting as Seller
and Servicer, and [__________________________ _____________], as trustee (the
"Trustee") and as collateral agent, a summary of certain of the pertinent
provisions of which is set forth on the reverse hereof. This Certificate is one
of the duly authorized Certificates designated as "____% Automobile Loan
Pass-Through
A-2-2
Certificates, Class B" (herein called the Class B Certificates, and, together
with the Class A Certificates issued concurrently herewith, the "Certificates").
This Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
The property of the Trust includes a pool of [simple interest] retail
installment sales contracts, purchase money notes and promissory notes (the
"Receivables") for the purchase of new and used automobiles financed thereby,
all monies due thereunder on or after the Cutoff Date (other than the Retained
Yield), security interests in the vehicles securing the Receivables (the
"Financed Vehicles"), such amounts as from time to time may be held in the
Collection Account and the Distribution Accounts established and maintained by
the Servicer in the name of the Trustee, the rights to proceeds as a result of
the Seller's exercise of its recourse rights against Dealers with respect to the
Receivables, and assignment of the rights of the Seller to receive proceeds from
any Liquidation Proceeds and from any extended warranties, theft and physical
damage, credit life and credit disability insurance policies relating to the
Financed Vehicles or the Obligors, as the case may be, the rights with respect
to any Financed Vehicle that has been repossessed by the Servicer, on behalf of
the Trustee, and the right to receive payments under certain circumstances from
the Reserve Account and the Retained Yield and all proceeds of the foregoing.
Subject to the terms and conditions of the Agreement
(including the availability of funds for distribution) and until the obligations
created by the Agreement shall have terminated in accordance therewith, there
will be distributed on the 15th day of each month or, if such 15th day is not a
Business Day, the next succeeding Business Day (the "Distribution Date"),
commencing on __________ __ ____, to the Person in whose name this Certificate
is registered at the close of business on the related Record Date, such
Certificateholder's fractional undivided interest in the amounts distributable
to the Class B Certificateholders on such Distribution Date.
A-2-3
Pursuant to the Agreement distributions of interest and
principal on the Class B Certificates will be subordinated in priority of
payment to interest and principal due on the Class A Certificates in the event
of defaults and delinquencies on the Receivables. The Class B Certificateholders
will not receive any distributions of interest with respect to a Collection
Period until the full amount of interest on the Class A Certificates relating to
such Collection Period has been deposited in the Class A Distribution Account,
and the Class B Certificateholders will not receive any distributions of
principal with respect to such Collection Period until the full amount of
interest on and principal of the Class A Certificates relating to such
Collection Period has been deposited in the Class A Distribution Account as set
forth in the Agreement.
Distributions on this Class B Certificate will be made by the
Paying Agent by check mailed to the Class B Certificateholder of record in the
Class B Certificate Register without the presentation or surrender of this Class
B Certificate or the making of any notation hereon, except that if directed by
the Seller in the case of Class B Certificates registered in the name of a
Clearing Agency or Foreign Clearing Agency, as applicable, distributions will be
made in the form of immediately available funds. Except as otherwise provided in
the Agreement and notwithstanding the above, the final distribution on this
Class B Certificate will be made after due notice by the Trustee of the pendency
of such distribution and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for that purpose by the Transfer
Agent and Certificate Registrar in The City of New York.
Reference is hereby made to the further provisions of this
Class B Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
All capitalized terms used herein not otherwise defined shall
have the meaning assigned thereto in the Agreement.
A-2-4
Unless the authentication hereon shall have been executed by
an authorized officer of the Trustee or an authenticating agent acting on behalf
of the Trustee, by manual signature, this Class B Certificate shall not entitle
the holder hereof to any benefit under the Agreement or be valid for any
purpose.
A-2-5
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and
not in its individual capacity, has caused this Certificate to be duly executed.
CHASE MANHATTAN AUTO
GRANTOR TRUST 199_-_
By: [______________________________]
By: ________________________________
Authorized Officer
This is one of the Certificates referred to
in the within-mentioned Agreement.
[__________________________________]
not in its individual capacity
but solely as Trustee
By: ________________________________
Authorized Officer
or
____________________________________
as Authenticating Agent
for the Trustee
By: ________________________________
Authorized Officer
A-2-6
CHASE MANHATTAN AUTO GRANTOR TRUST 199_-_
____% AUTOMOBILE LOAN PASS-THROUGH CERTIFICATES, CLASS B
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights of the
Certificateholders under the Agreement at any time by the Seller, the Servicer
and the Trustee with the consent of the Holders of Certificates evidencing not
less than a majority of the sum of the Class A Certificate Balance and the Class
B Certificate Balance voting as a single class. Any such consent by the Holder
of this Class B Certificate shall be conclusive and binding on such Holder and
on all future Holders of this Class B Certificate and of any Class B Certificate
issued upon registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Class B
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances and with certain exceptions provided therein, without
prior notice to or the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Class B Certificate is
registerable in the Certificate Register upon surrender of this Class B
Certificate for registration of transfer at the office or agency maintained by
the Transfer Agent and Certificate Registrar, in The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Transfer Agent and Certificate Registrar duly executed by the
Holder hereof, which signature to such assignment has been guaranteed by a
member of the New York Stock Exchange or a commercial bank or trust company, and
thereupon one or more new Class B Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Class B Certificates are issuable only as registered Class
B Certificates without coupons in denominations of $1,000 and integral multiples
thereof. As provided in the Agreement and subject to certain limitations therein
set forth, Class B Certificates are
A-2-7
exchangeable for new Class B Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the Holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Transfer Agent and Certificate Agent may require payment of a
sum sufficient to cover any tax or governmental charges payable in connection
therewith.
In the event that the Holder of this Class B Certificate does
not surrender this Certificate for cancellation within six months after the date
specified in the notice regarding the pendency of the final distribution
described on the face hereof, the Trustee shall give a second notice with
respect thereto. If within one year after such second notice this Class B
Certificate shall not have been surrendered for cancellation, the Trustee may
take appropriate steps to contact the Holder hereof. As provided in the
Agreement, any funds remaining in the Trust after exhaustion of such steps shall
be distributed to a charitable organization, such distribution to occur not
later than three years from the date of the final Distribution Date.
The Trustee, the Paying Agent and the Transfer Agent and
Certificate Registrar may treat the Person in whose name this Class B
Certificate is registered as the owner hereof for all purposes, and none of the
Trustee, the Paying Agent or the Transfer Agent and Certificate Registrar shall
be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby with respect to the Certificateholders shall
terminate upon the payment to Certificateholders of all amounts required to be
paid to them pursuant to the Agreement on the Distribution Date next succeeding
the month which is six months after the maturity or liquidation of the last
Receivable and the disposition of all property held as part of the Trust. The
Servicer may, at its option, purchase the corpus of the Trust at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates; however,
such right of purchase is exercisable only as of the last day of a Collection
Period
A-2-8
immediately preceding any Distribution Date as of which the Pool Balance is
equal to or less than 5% of the Original Pool Balance.
A-2-9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or typewrite name and address, including
postal zip code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_______________________________________________________________________ Attorney
to transfer said Certificate on the books of the Transfer Agent and Certificate
Registrar, with full power of substitution in the premises.
Dated:
________________________________________*
Signature Guaranteed:
________________________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank or
trust company.
A-2-10
EXHIBIT B
---------
[FORM OF DEPOSITORY RECEIPT AGREEMENT]
B-1
EXHIBIT C-1
-----------
Trustee's Certificate
pursuant to Section 10.2
of the Pooling and Servicing
Agreement
[_______________________________________], as trustee (the "Trustee")
and as collateral agent of the Chase Manhattan Auto Grantor Trust 199_-_ created
pursuant to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of __________ __, ____, between Chase Manhattan Bank USA,
National Association, as Seller (the "Seller") and Servicer, and the Trustee
does hereby sell, transfer, assign, and otherwise convey to the Seller, without
recourse, representation, or warranty, all of the Trustee's right, title, and
interest in and to all of the Receivables (as defined in the Pooling and
Servicing Agreement) identified in the attached Servicer's Certificate as
"Repurchased Receivables," which are to be repurchased by the Seller pursuant to
Section 3.2 of the Pooling and Servicing Agreement and all security and
documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this ____ day
of ______, 19__.
_______________________________________
Authorized Signatory
C-1
EXHIBIT C-2
-----------
Trustee's Certificate
pursuant to Section 10.2
of the Pooling and Servicing
Agreement
[_______________________________________], as trustee (the
"Trustee") and as collateral agent of the Chase Manhattan Auto Grantor Trust
199_-_ created pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of __________ __, ____, between Chase Manhattan
Bank USA, National Association, as Seller and Servicer (the "Servicer"), and
the Trustee, does hereby sell, transfer, assign, and otherwise convey to the
Servicer, without recourse, representation, or warranty, all of the Trustee's
right, title, and interest in and to all of the Receivables (as defined in the
Pooling and Servicing Agreement) identified in the attached Servicer's
Certificate as "Repurchased Receivables," which are to be purchased by the
Servicer pursuant to Section 4.7 or 11.2 of the Pooling and Servicing Agreement,
and all security and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this ____ day
of ______, 19__.
________________________________________
Authorized Signatory
C-2
EXHIBIT D
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[FORM OF SERVICER'S CERTIFICATE]
D-1
EXHIBIT E
---------
CERTIFICATEHOLDER REPORT
E-1