Exhibit 4.1
Form of Sale and
Servicing Agreement
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CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Seller and Servicer
and
CHASE MANHATTAN AUTO OWNER TRUST 200_-_
as Issuer
SALE AND SERVICING AGREEMENT
Dated as of __________ __, 200_
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions ...................................................... 1
SECTION 1.2 Usage of Terms ...................................................20
SECTION 1.3 Simple Interest Method; Methods of Allocating Payments or
Receivables; Allocations.......................................21
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables.........................................21
SECTION 2.2 Closing ..........................................................22
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.................26
SECTION 3.3 Custody of Receivable Files......................................26
SECTION 3.4 Duties of Servicer as Custodian..................................27
SECTION 3.5 Instructions; Authority to Act...................................28
SECTION 3.6 Custodian's Indemnification......................................28
SECTION 3.7 Effective Period and Termination.................................28
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1 Duties of Servicer...............................................28
SECTION 4.2 Collection of Receivable Payments; Refinancing...................30
SECTION 4.3 Realization Upon Receivables.....................................30
SECTION 4.4 Maintenance of Security Interests in Financed Vehicles...........31
SECTION 4.5 Covenants of Servicer............................................31
SECTION 4.6 Purchase of Receivables Upon Breach..............................32
SECTION 4.7 Servicing Fee ...................................................32
SECTION 4.8 Servicer's Certificate...........................................32
SECTION 4.9 Annual Statement as to Compliance................................33
SECTION 4.10 Annual Audit Report..............................................33
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SECTION 4.11 Access by Holders to Certain Documentation and Information
Regarding Receivables............................................34
SECTION 4.12 Reports to Holders and the Rating Agencies.......................34
SECTION 4.13 Reports to the Securities and Exchange Commission................35
ARTICLE V
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1 Establishment of Collection Account and Note
Distribution Account ........................................35
SECTION 5.2 Collections......................................................36
SECTION 5.3 [Reserved].......................................................36
SECTION 5.4 Additional Deposits..............................................36
SECTION 5.5 Distributions....................................................36
SECTION 5.6 Reserve Account..................................................38
SECTION 5.7 Net Deposits.....................................................39
SECTION 5.8 Statements to Certificateholders and Noteholders.................39
ARTICLE VI
THE SELLER
SECTION 6.1 Representations of Seller........................................40
SECTION 6.2 Liability of Seller; Indemnities.................................41
SECTION 6.3 Merger or Consolidation of Seller................................42
SECTION 6.4 Limitation on Liability of Seller and Others.....................42
SECTION 6.5 Seller May Own Notes and Certificates............................42
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer......................................42
SECTION 7.2 Liability of Servicer; Indemnities...............................44
SECTION 7.3 Merger or Consolidation of Servicer..............................45
SECTION 7.4 Limitation on Liability of Servicer and Others...................45
SECTION 7.5 Servicer Not To Resign...........................................46
SECTION 7.6 Delegation of Duties.............................................46
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1 Events of Servicing Termination..................................46
SECTION 8.2 Indenture Trustee to Act; Appointment of Successor
Servicer........................ .............................48
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SECTION 8.3 Notification to Noteholders and Certificateholders...............49
SECTION 8.4 Waiver of Past Defaults..........................................49
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables; Trust Termination.........49
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment.......................................................50
SECTION 10.2 Protection of Title to Owner Trust Estate.......................52
SECTION 10.3 GOVERNING LAW...................................................54
SECTION 10.4 Notices.........................................................54
SECTION 10.5 Severability of Provisions......................................54
SECTION 10.6 Assignment......................................................54
SECTION 10.7 Certificates and Notes Nonassessable and Fully Paid.............54
SECTION 10.8 Third-Party Beneficiaries.......................................54
SECTION 10.9 Assignment to Indenture Trustee.................................55
SECTION 10.10 Limitation of Liability of Owner Trustee and Indenture
Trustee ....................................................55
SECTION 10.11 No Petition ....................................................55
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SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Location of Receivable Files
EXHIBITS
Exhibit A - Form of Servicer's Certificate
Exhibit B - Form of Monthly Report
Exhibit C - Form of Collection Account Control Agreement
Exhibit D - Form of Reserve Account Control Agreement
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This SALE AND SERVICING AGREEMENT, dated as of __________ __, 200_,
(as amended, supplemented or otherwise modified and in effect from time to
time, this "Agreement") is made between CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association having its principal executive
offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Chase
USA," the "Seller" or the "Servicer" in its respective capacities as such),
and CHASE MANHATTAN AUTO OWNER TRUST 200_-_, as issuer (the "Issuer").
W I T N E S S E T H :
- - - - - - - - - -
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Accrued Interest" on a Receivable, as of any date of determination,
means that amount of interest accrued on the Principal Balance at the related
Contract Rate but not paid by or on behalf of the Obligor.
"Administration Agreement" means the Administration Agreement, dated
as of __________ __, 200_, among the Issuer, the Administrator and the
Indenture Trustee, as the same may be amended and supplemented from time to
time.
"Administrator" means JPMorgan Chase Bank, a New York banking
corporation, as administrator, and its successors and assigns.
"Administration Fee" means $_____, the fee payable to the
Administrator on each Payment Date pursuant to Section 5.5(c) for services
rendered pursuant to the Administration Agreement.
"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 Payment Date, the amount equal
to (i) the aggregate Principal Balance of all 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 4.10.
"Authenticating Agent" has the meaning specified in Section 2.13 of
the Indenture and shall initially be the corporate trust office of JPMorgan
Chase, and its successors and assigns in such capacity.
"Authorized Officer" means any officer of the Owner Trustee,
Indenture Trustee or Servicer who is authorized to act on behalf of the Owner
Trustee, Indenture Trustee or Servicer, as applicable, and who is identified
as such on the list of authorized officers delivered by each such party on the
Closing Date.
"Available Interest" means, for any Payment Date, the sum of (i)
that portion of Collections on the Receivables received during the related
Collection Period allocated to interest and (ii) that portion of the
Repurchase Amounts received with respect to the Repurchased Receivables
repurchased by the Seller or purchased by the Servicer during the related
Collection Period that would have been treated as Available Interest if the
Obligor thereof had prepaid such Receivables in full on the date as of which
such Receivables were repurchased or purchased.
"Available Principal" means, for any Payment Date, the sum of (i)
that portion of Collections on the Receivables received during the related
Collection Period allocated to the principal balance of the Receivables and
(ii) that portion of the Repurchase Amounts received with respect to the
Repurchased Receivables repurchased by the Seller or purchased by the Servicer
that would have been treated as Available Principal if the Obligor thereof had
prepaid such Receivables in full on the date as of which such Receivables were
repurchased or purchased.
"Available Reserve Account Amount" shall mean, for each Payment
Date, an amount equal to the lesser of (i) the amount on deposit in the
Reserve Account and (ii) the Specified Reserve Account Balance with respect to
such Payment Date.
"Average Delinquency Percentage" means for any Payment Date, the
average of the Delinquency Percentages for such Payment Date and the preceding
two (2) Payment Dates.
"Average Net Loss Ratio" means for any Payment Date, the average of
the Net Loss Ratios for such Payment Date and the preceding two (2) Payment
Dates.
"Basic Documents" means this Agreement, the Certificate of Trust,
the Indenture, the Depository Agreements, the Securities Control Agreements,
the Trust Agreement, the Administration Agreement and other documents and
certificates delivered in connection therewith.
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"Book-Entry Certificates" means beneficial interests in the
Certificates, the ownership and transfers of which shall be made through book
entries by a Clearing Agency or Foreign Clearing Agency as described in
Section 3.10 of the Trust Agreement.
"Book-Entry Notes" means beneficial interests in the Notes, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency or Foreign Clearing Agency as described in Section 2.10 of the
Indenture.
"Business Day" means a day, other than a Saturday or a Sunday, on
which the Indenture Trustee and banks located in New York, New York, Newark,
Delaware and __________, __________ are open for the purpose of conducting a
commercial banking business.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as amended from time to time.
"Capital Accounts" has the meaning specified in Section 5.7 of the
Trust Agreement.
"Certificate" means a certificate evidencing the beneficial interest
of a Certificateholder in the Owner Trust Estate, substantially in the form of
Exhibit A-2 to the Trust Agreement.
"Certificate Balance" means an amount equal to $_____ as of the
Closing Date and, thereafter, shall be an amount equal to such initial
Certificate Balance, reduced by all amounts allocable to principal previously
distributed to Certificateholders. The Certificate Balance shall also be
reduced on any Payment Date by the excess, if any, of (i) the sum of (A) the
Certificate Balance and (B) the outstanding principal amount of the Notes (in
each case after giving effect to amounts in respect of principal to be
deposited in the Certificate Distribution Account and the Note Distribution
Account on such Payment Date), over (ii) the Pool Balance as of the close of
business on the last day of the preceding Collection Period. Thereafter, the
Certificate Balance shall be increased on any Payment Date to the extent that
any portion of the Total Distribution Amount on such Payment Date is available
to pay the existing Certificateholders' Principal Carryover Shortfall, but not
by more than the aggregate reductions in the Certificate Balance set forth in
the preceding sentence.
"Certificate Depository Agreement" means the agreement among the
Issuer, the Owner Trustee, JPMorgan Chase, as agent for the Depository Trust
Company and The Depository Trust Company, as the initial Clearing Agency,
dated the Closing Date, relating to the Certificates, substantially in the
form attached as Exhibit C to the Trust Agreement, as the same may be amended
and supplemented from time to time or any similar agreement with any successor
Clearing Agency.
"Certificate Distribution Account" has the meaning specified in
Section 5.1 of the Trust Agreement.
"Certificate Final Scheduled Payment Date" means the __________
Payment Date on which the outstanding principal amount, if any, of the
Certificates is payable.
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"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit B to the Trust Agreement to be filed for the Issuer pursuant to
Section 3810(a) of the Business Trust Statute.
"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 Pool Factor" as of the close of business on a Payment
Date means a eight-digit decimal figure equal to the Certificate Balance
(after giving effect to distributions made on such date) divided by the
initial Certificate Balance. The Certificate Pool Factor will be 1.00000000 as
of the Cutoff Date; thereafter, the Certificate Pool Factor will decline to
reflect reductions in the Certificate Balance.
"Certificate Rate" means _____% per annum.
"Certificate Register" and "Certificate Registrar" means the
register maintained and the registrar appointed pursuant to Section 3.4 of the
Trust Agreement.
"Certificateholder" means the Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent, request, waiver or demand pursuant to any of the Basic
Documents (other than pursuant to Section 4.3 of the Trust Agreement), the
interest evidenced by any Certificate registered in the name of the Seller,
the Servicer or any Person actually known by an Authorized Officer of the
Owner 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.
"Certificateholders' Distributable Amount" means for any Payment
Date, the sum of (x) the Certificateholders' Principal Distributable Amount
and (y) the Certificateholders' Interest Distributable Amount.
"Certificateholders' Interest Carryover Shortfall" means, (a) for
the initial Payment Date, zero, and (b) for any other Payment Date, the excess
of the Certificateholders' Interest Distributable Amount for the preceding
Payment Date over the amount in respect of the interest actually deposited in
the Certificate Distribution Account on such preceding Payment Date, plus
interest on such excess, to the extent permitted by law, at the Certificate
Rate from and including such preceding Payment Date to, but excluding, the
current Payment Date.
"Certificateholders' Interest Distributable Amount" means, for any
Payment Date, the sum of the Certificateholders' Monthly Interest
Distributable Amount for such Payment Date and the Certificateholders'
Interest Carryover Shortfall for such Payment Date.
"Certificateholders' Monthly Interest Distributable Amount" means,
for any Payment Date, one month's interest (or, in the case of the first
Payment Date, interest accrued from and including the Closing Date to, but
excluding, such Payment Date) at the Certificate Rate on the Certificate
Balance on the immediately preceding Payment Date, after giving effect
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to all payments of principal to the Certificateholders on or prior to such
Payment Date (or, in the case of the first Payment Date, the Certificate
Balance on the Closing Date). Interest shall be computed on the basis of a 360
day-year of twelve 30-day months for purposes of this definition.
"Certificateholders' Monthly Principal Distributable Amount" means,
for any Payment Date, the Certificateholders' Percentage of the Principal
Distribution Amount.
"Certificateholders' Percentage" means, for any Payment Date, 100%
minus the Noteholders' Percentage.
"Certificateholders' Principal Carryover Shortfall" means for any
Payment Date, the sum of (a) the excess of (i) the Certificateholders'
Principal Distributable Amount for the preceding Payment Date, over (ii) the
amount in respect of principal actually deposited in the Certificate
Distribution Account on such Payment Date and (b) without duplication of
clause (a), the unreimbursed portion of the amount by which the Certificate
Balance has been reduced pursuant to the second sentence of the definition
thereof.
"Certificateholders' Principal Distributable Amount" means, for any
Payment Date, the sum of (i) the Certificateholders' Monthly Principal
Distributable Amount for such Payment Date and (ii) the Certificateholders'
Principal Carryover Shortfall for such Payment Date; provided that the
Certificateholders' Principal Distributable Amount shall not exceed the
Certificate Balance. In addition, on the Certificate Final Scheduled Payment
Date, the principal required to be distributed to the Certificateholders will
include the lesser of (a) any payments of principal due and remaining unpaid
on each Receivable owned by the Issuer as of the last day of the immediately
preceding Collection Period and (b) the amount that is necessary (after giving
effect to the other amounts to be deposited in the Certificate Distribution
Account on such Payment Date and allocable to principal) to reduce the
Certificate Balance to zero, in either case after giving effect to any
required distribution of the Noteholders' Principal Distributable Amount to
the Note Distribution Account.
"Chase USA" means Chase Manhattan Bank USA, National Association.
"Class A-1 Interest Rate" means _____% per annum.
"Class A-1 Notes" means the Class A-1 _____% Asset Backed Notes,
substantially in the form of Exhibit B to the Indenture.
"Class A-2 Interest Rate" means _____% per annum.
"Class A-2 Notes" means the Class A-2 _____% Asset Backed Notes,
substantially in the form of Exhibit C to the Indenture.
"Class A-3 Interest Rate" means _____% per annum.
"Class A-3 Notes" means the Class A-3 _____% Asset Backed Notes,
substantially in the form of Exhibit D to the Indenture.
"Class A-4 Interest Rate" means _____% per annum.
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"Class A-4 Notes" means the Class A-4 _____% Asset Backed Notes,
substantially in the form of Exhibit E to the Indenture.
"Class R Certificate" means the certificate evidencing the
beneficial interest of the Class R Certificateholder in the Owner Trust
Estate, substantially in the form of Exhibit A-1 to the Trust Agreement.
"Class R Certificateholder" means the Person in whose name the Class
R Certificate is registered.
"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).
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means __________ __, 200_.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means securities account no. __________
entitled "__________, __________, as Indenture Trustee, Securities Account of
Chase Auto Owner Trust Series 200_-_" maintained by the Collection Account
Securities Intermediary pursuant to the Collection Account Control Agreement
or any successor securities account maintained pursuant to the Collection
Account Control Agreement.
"Collection Account Control Agreement" means the agreement among the
Issuer, JPMorgan Chase, as securities intermediary, and the Indenture Trustee,
dated as of __________ __, 200_, relating to the Collection Account,
substantially in the form attached as Exhibit C, as the same may be amended
and supplemented from time to time.
"Collection Account Securities Intermediary" means JPMorgan Chase or
any other securities intermediary that maintains the Collection Account
pursuant to the Collection Account Control Agreement.
"Collection Period" means each calendar month beginning __________
__, 200_ until Chase Manhattan Auto Owner Trust 200_-_ shall terminate
pursuant to Article IX of the Trust Agreement.
"Collections" means all collections in respect of Receivables.
"Contract Rate" of a Receivable means the annual rate of interest
stated in such Receivable.
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"Corporate Trust Office" means the corporate trust office of the
Indenture Trustee or the __________, __________ office of the Owner Trustee,
as applicable.
"Cutoff Date" means __________ __, 200_.
"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 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 was originated by
the Seller or an Affiliate of the Seller with the involvement of a Dealer.
["Debt Cancellation Policy" means a policy issued by Chase USA to
the obligor that forgives the Principal Balance of a Receivable in excess of
insurance proceeds realized upon the event of a total loss of the related
Financed Vehicle.]
"Default" means any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"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 Amount Financed (including accrued interest
thereon) is unlikely; provided that a Receivable shall become a Defaulted
Receivable during 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 Notes" means Notes issued in certificated, fully
registered form as provided in Section 2.12 of the Indenture.
"Definitive Certificates" means Certificates issued in certificated,
fully registered form as provided in Section 3.12 of the Trust Agreement.
"Delaware Trustee" has the meaning specified in Section 10.1 of the
Trust Agreement.
"Delinquency Percentage" means, for any Payment 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
Payment 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.
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"Deposit Date" means the Business Day immediately preceding each
Payment Date.
"Depositor" means the Seller in its capacity as Depositor under the
Trust Agreement.
"Depository Agreements" means, collectively, the Certificate
Depository Agreement and the Note Depository Agreement.
"Determination Date" means the __th calendar day of the month (or,
if such __th calendar day is not a Business Day, the Business Day preceding
the __th calendar day of the month) immediately succeeding the related
Collection Period.
"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 JPMorgan
Chase, and may be maintained with JPMorgan Chase so long as JPMorgan Chase is
a Qualified Trust Institution; or (b) a separately identifiable deposit
account established in the deposit taking department of a Qualified
Institution, which may be JPMorgan Chase so long as JPMorgan Chase is a
Qualified Institution.
"Executive Officer" means, with respect to any corporation or bank,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation or bank, and with respect to any partnership,
any general partner thereof.
"Euroclear Operator" means Euroclear Bank S.A./N.V., in its capacity
as the operator of the Euroclear system.
"Event of Default" means an event specified in Section 5.1 of the
Indenture.
"Event of Servicing Termination" means an event specified in Section
8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expenses" has the meaning specified in Section 8.2 of the Trust
Agreement.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation or any
successor thereto.
"Final Scheduled Maturity Date" means the last day of the Collection
Period immediately preceding the Certificate Final Scheduled Payment Date.
"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.
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"Fitch" means Fitch, Inc. and its successors and assigns.
"Fixed Note Percentage" means the percentage equivalent of a
fraction (rounded to the nearest one-one hundred thousandth of 1%) numerator
of which is the Outstanding Amount of the Class A-_ Notes and the Class A-_
Notes on the Payment Date on which the Class A-_ Notes have been paid in full
and the denominator of which is the sum of the Outstanding Amount of the Class
A-_ Notes and the Class A-_ Notes and the Certificate Balance on the Payment
Date on which the Class A-_ Notes have been paid in full.
"FNMA" means the Federal National Mortgage Association or any
successor thereto.
"Foreign Clearing Agency" means, collectively, Clearstream and the
Euroclear Operator.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a
security interest in and right of set-off against, deposit, set over and
confirm pursuant to the Indenture. A Grant of the Trust Estate or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the Granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal and interest payments and all other moneys payable thereunder, to
give and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the
name of the Granting party or otherwise and generally to do and receive
anything that the Granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Holder" or "Holders" means, unless the context otherwise requires,
both Certificateholders and Noteholders.
"Indemnified Parties" has the meaning specified in Section 8.2 of
the Trust Agreement.
"Indenture" means the Indenture dated as of __________ __, 200_,
between the Issuer and the Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Trustee" means, initially, __________, as Indenture
Trustee under the Indenture, or any successor Indenture Trustee under the
Indenture.
"Independent" means, when used with respect to any specified Person,
that the person (a) is in fact independent of the Issuer, any other obligor
upon the Notes, the Seller and any Affiliate of any of the foregoing persons,
(b) does not have any direct financial interest or any material indirect
financial interest in the Issuer, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
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"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent engineer, appraiser or other expert
appointed by the Issuer and approved by the Indenture Trustee in the exercise
of reasonable care, and such opinion or certificate shall state that the
signer has read the definition of "Independent" in this Agreement and that the
signer is Independent within the meaning thereof.
"Insolvency Event" means, for a specified Person, (a) the filing of
a decree or order for relief by a court having jurisdiction in the premises in
respect of such Person or any substantial part of its property in an
involuntary case under any applicable Federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver
(including any receiver appointed under the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended), liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for
any substantial part of its property, or ordering the winding-up or
liquidation of such Person's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or (b) the
commencement by such Person of a voluntary case under any applicable Federal
or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by such Person to the entry of an order for relief in
an involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for
any substantial part of its property, or the making of such Person of any
general assignment for the benefit of creditors, or the failure by such Person
generally to pay its debts as such debts become due, or the taking of action
by such Person in furtherance of any of the foregoing.
"Interest Rate" means the rate of interest borne by the Notes of any
class.
"Investment Earnings" means, with respect to any Payment Date, the
investment earnings (net of losses and investment expenses) on amounts on
deposit in the Collection Account.
"Issuer" means Chase Manhattan Auto Owner Trust 200_-_, a Delaware
business trust, until a successor replaces it and, thereafter, means such
successor and, for purposes of any provision contained in the Indenture and
required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any of its authorized officers and
delivered to the Indenture Trustee.
"JPMorgan Chase" means JPMorgan Chase Bank, a New York banking
corporation and its successors.
"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.
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"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 and its successors and
assigns.
"Net Loss Ratio" means, for any Payment Date, the ratio, expressed
as an annualized percentage, of (i) the Aggregate Net Losses for such Payment
Date to (ii) the average of the Pool Balances on each of the related
Settlement Date and the last day of the related Collection Period.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or
a Class A-4 Note.
"Note Depository Agreement" means the agreement among the Issuer,
the Indenture Trustee, JPMorgan Chase, as agent for The Depository Trust
Company and The Depository Trust Company, as the initial Clearing Agency,
dated the Closing Date, relating to the Notes, substantially in the form of
Exhibit F to the Indenture, as the same may be amended or supplemented from
time to time or any similar agreement with any successor Clearing Agency.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1(b).
"Note Final Scheduled Payment Date" means for (a) the Class A-1
Notes, the __________ Payment Date, (b) the Class A-2 Notes, the __________
Payment Date, (c) the Class A-3 Notes, the __________ Payment Date, and (d)
the Class A-4 Notes, the __________ Payment Date.
"Note Owner" means, with respect to a Book-Entry Note, the person
who is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency or Foreign Clearing Agency, or on the books of a direct or
indirect Clearing Agency Participant.
"Note Pool Factor" for each class of Notes as of the close of
business on a Payment Date means an eight-digit decimal figure equal to the
Outstanding Amount of such class of Notes divided by the Outstanding Amount as
of the Closing Date of such class of Notes. The Note Pool Factor for each
class of Notes will be 1.00000000 as of the Cutoff Date; thereafter, the Note
Pool Factor for each class of Notes will decline to reflect reductions in the
Outstanding Amount of such class of Notes.
"Noteholder" means the Person in whose name a Note is registered on
the Note Register.
"Noteholders' Distributable Amount" means, for any Payment Date, the
sum of the Noteholders' Principal Distributable Amount and the Noteholders'
Interest Distributable Amount for all classes of Notes.
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"Noteholders' Interest Carryover Shortfall" means, for any class of
Notes, (a) for the initial Payment Date, zero, and (b) for any other Payment
Date, the excess of (x) the Noteholders' Interest Distributable Amount for the
preceding Payment Date for such class of Notes, over (y) the amount in respect
of interest actually deposited in the Note Distribution Account on such
preceding Payment Date with respect to such class of Notes, plus interest on
the amount of interest due but not paid to the Noteholders of such class on
the preceding Payment Date, to the extent permitted by law, at the applicable
Interest Rate from such preceding Payment Date through the current Payment
Date.
"Noteholders' Interest Distributable Amount" means, for any Payment
Date for any class of Notes, the sum of (x) the Noteholders' Monthly Interest
Distributable Amount for such class of Notes for such Payment Date and (y) the
Noteholders' Interest Carryover Shortfall for such class of Notes for such
Payment Date.
"Noteholders' Monthly Interest Distributable Amount" means, for any
Payment Date for each class of Notes, one month's interest (or, in the case of
the first Payment Date, interest accrued from and including the Closing Date
to but excluding such Payment Date) at the related Interest Rate on the
Outstanding Amount of the Notes of such class on such Payment Date (or, in the
case of the first Payment Date, on the Closing Date). Interest for purposes of
this definition (i) on the Class A-1 Notes shall be computed on the basis of a
360-day year for the actual number of days elapsed and (ii) on the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes shall be computed on the
basis of a 360-day year of twelve 30-day months.
"Noteholders' Monthly Principal Distributable Amount" means, for any
Payment Date, the Noteholders' Percentage of the Principal Distribution
Amount.
"Noteholders' Percentage" means (i) 100% for each Payment Date
occurring before the Payment Date on which the Class A-_ Notes have been paid
in full, (ii) the Fixed Note Percentage or such greater percentage as would be
necessary to pay the Class A-_ Notes in full) on such Payment Date, (iii) the
Fixed Note Percentage after such Payment Date until all of the Notes have been
paid in full and (iv) zero thereafter; provided, however, that (x) if the
amount on deposit in the Reserve Account on any Payment Date would be, after
giving effect to distributions on such Payment Date, less than _____% of the
Original Pool Balance, the Noteholders' Percentage will be 100% for such
Payment Date and each Payment Date thereafter until the Notes have been paid
in full or the amount on deposit in the Reserve Account equals or exceeds the
Specified Reserve Account Balance and (y) if the Notes have been accelerated
after the occurrence of an Event of Default, the Noteholders' Percentage will
be 100% for each Payment Date thereafter until the Notes have been paid in
full.
"Noteholders' Principal Carryover Shortfall" means for any Payment
Date, the excess of (x) the Noteholders' Principal Distributable Amount for
the preceding Payment Date over (y) the amount in respect of principal
actually deposited in the Note Distribution Account on such Payment Date.
"Noteholders' Principal Distributable Amount" means, for any Payment
Date, the sum of (i) the Noteholders' Monthly Principal Distributable Amount
for such Payment Date and (ii) the Noteholders' Principal Carryover Shortfall
for such Payment Date; provided that the
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Noteholders' Principal Distributable Amount shall not exceed the Outstanding
Amount of the Notes. In addition, on the Note Final Scheduled Payment Date of
each class of Notes, the principal required to be deposited in the Note
Distribution Account will include the amount necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Payment Date and allocable to principal) to reduce the Outstanding Amount of
such class of Notes to zero.
"Note Register" and "Note Registrar" means the register maintained
and the registrar appointed pursuant to Section 2.4 of the Indenture.
"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, meeting the requirements of Section 11.1 of the Indenture.
"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 Indenture Trustee, meeting the requirements of Section 11.1
of the Indenture (or in the case of an Opinion of Counsel delivered to the
Owner Trustee, reasonably acceptable in form and substance to the Owner
Trustee).
"Optional Purchase Percentage" shall be _____%.
"Original Pool Balance" shall be $__________.
"Outstanding" means, when used with respect to Notes, as of any date
of determination, all Notes theretofore authenticated and delivered under the
Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the Holders of such Notes (provided that if such
Notes are to be prepaid, notice of such prepayment has been duly given
pursuant to the Indenture or provision therefor, satisfactory to the Indenture
Trustee, has been made); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to the Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Notes owned
by the Issuer, any other obligor upon the
13
Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Notes that an Authorized Officer of the Indenture Trustee either actually
knows to be so owned or has received written notice that such Note is so owned
shall be so disregarded. Notes so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Indenture Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Seller or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means, when used with respect to Notes, as of
any date of determination, the aggregate principal amount of all Notes, or a
class of Notes, as applicable, Outstanding as of such date.
"Owner Trust Estate" means all right, title and interest of the
Issuer in and to the property and rights assigned to the Issuer pursuant to
Article II of this Agreement, all funds on deposit from time to time in the
Trust Accounts (other than the Note Distribution Account) and the Certificate
Distribution Account and all other property of Issuer from time to time,
including any rights of the Owner Trustee and the Issuer pursuant to this
Agreement.
"Owner Trustee" means __________, a __________ banking corporation,
not in its individual capacity but solely as owner trustee under the Trust
Agreement, and any successor Owner Trustee thereunder.
"Paying Agent" means: (a) when used in the Indenture or otherwise
with respect to the Notes, the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 of the Indenture and is authorized by the Indenture Trustee to make the
payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the
Notes on behalf of the Issuer; and (b) when used in the Trust Agreement or
otherwise with respect to the Certificates, the Owner Trustee or any other
paying agent or co-paying agent appointed pursuant to Section 3.9 of the Trust
Agreement, and in the case of the Indenture with respect to the Notes, and the
Trust Agreement with respect to the Certificates, such Paying Agent shall
initially be the corporate trust office of JPMorgan Chase.
"Payment Date" means, in the case of the first Collection Period,
__________ __, 200_, and in the case of every Collection Period thereafter,
the __th day of the following month, or if the __th day is not a Business Day,
the next following Business Day.
"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;
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(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-1+" or "AAA"
by Standard & Poor's, "F1+" or "AAA" by Fitch (if rated by Fitch) and
"P-1" or Aaa by Moody's;
(iii) commercial paper, other than commercial paper issued by
JPMorgan Chase or any of its Affiliates, which is then rated P-1 by
Moody's, "F1+" by Fitch (if rated by Fitch) and "A-1+" by Standard &
Poor's;
(iv) certificates of deposit, demand or time deposits, federal funds
or banker's acceptances, other than banker's acceptances issued by
JPMorgan Chase or any of its Affiliates, issued by any depository
institution or trust company (including the Indenture Trustee acting in
its commercial banking capacity) 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, "F1+" by Fitch (if rated by Fitch) and "A-1+" 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, "F1+" by Fitch (if rated by
Fitch) and "A-1+" 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; and
(ix) such other investments, other than investments in JPMorgan
Chase or any of its affiliates, where either (A) the short-term unsecured
debt or deposits of the obligor on such investments are rated "A-1+" by
Standard & Poor's, "F1+" by Fitch (if rated by Fitch) and P-1 by Moody's.
15
Permitted Investments may 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 JPMorgan Chase, the Indenture Trustee or an Affiliate thereof serves as
an investment advisor, administrator, shareholder servicing agent, and/or
custodian or subcustodian, notwithstanding that (i) JPMorgan Chase,
__________, ___________ or an Affiliate thereof charges and collects fees and
expenses from such funds for services rendered, (ii) JPMorgan 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 Indenture Trustee specifically authorizes JPMorgan 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 JPMorgan
Chase, __________ or __________, as applicable, may charge and collect for
services rendered pursuant to this Agreement.
"Person" means a legal person, including any individual,
corporation, limited liability company, estate, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Pool Balance" as of any date of determination means, the aggregate
Principal Balance of the Receivables as of the close of business on the last
day of the preceding Collection Period, after giving effect to all payments
received from Obligors and Repurchase Amounts to be remitted by the Servicer
or the Seller, as the case may be, for such Collection Period and all losses
realized on Receivables liquidated during such Collection Period.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" means in the case of a prepayment of the Notes
pursuant to Section 10.1 of the Indenture, the Payment Date specified by the
Servicer pursuant to such Section 10.1.
"Principal Balance" of a Receivable, as of the close of business on
the last day of any Collection Period, 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.
"Principal Distribution Amount" means, for any Payment Date, the sum
of the following amounts, without duplication: (i) Available Principal and
(ii) Aggregate Net Losses.
"Principal Prepayment" means a payment or other recovery of
principal on a Receivable (including insurance proceeds and Liquidation
Proceeds applied to principal on a Receivable) which is received in advance of
its due date.
16
"Proceeding" means any suit in equity, action or law or other
judicial or administrative proceeding.
"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 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, Baa3 by Moody's and "BBB-" by Fitch (if rated by Fitch).
"Rating Agency" means any of Standard & Poor's, Moody's or ▇▇▇▇▇.
"Rating Agency Condition" means, with respect to any action or
event, that each Rating Agency shall have notified the Seller, the Servicer,
the Indenture Trustee and the Owner Trustee, in writing, that such action or
event will not result in reduction or withdrawal of any then outstanding
rating of any outstanding Note or Certificate with respect to which it is the
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 opening
of business on the Cutoff Date), which Receivable shall be identified in the
Schedule of Receivables.
"Receivable Files" means the documents specified in Section 3.3.
"Receivables Pool" means the pool of Receivables included in the
Trust Estate and all monies received thereunder on or after the Cutoff Date.
"Record Date" means, with respect to any Payment Date, the Business
Day prior to such Payment Date unless Definitive Notes or Definitive
Certificates are issued, in which case, Record Date, with respect to such
Definitive Notes or Definitive Certificates, as applicable, 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 Section 9.1, means the sum, as of the
last day of the Collection
17
Period on which such Receivable becomes such, of the Principal Balance thereof
plus the Accrued Interest thereon.
"Repurchased Receivable" means a Receivable repurchased by the
Seller pursuant to Section 3.2 or purchased by the Servicer pursuant to
Section 4.6.
"Required Deposit Rating" shall be a short-term certificate of
deposit rating from Moody's of P-1, from Fitch of "F1+" (if rated by Fitch)
and from Standard & Poor's of "A-1+," and a long-term unsecured debt rating of
not less than Aa3 by Moody's, "AA" by Fitch (if rated by Fitch) and "AA-" by
Standard & Poor's.
"Reserve Account" means securities account no. __________ entitled
"__________, __________, as Indenture Trustee, Securities Account of Chase
Auto Owner Trust Series 200_-_" maintained by the Reserve Account Securities
Intermediary pursuant to the Reserve Account Control Agreement or any
successor securities account maintained pursuant to the Reserve Account
Control Agreement.
"Reserve Account Control Agreement" means the agreement among the
Issuer, __________, as securities intermediary, and the Indenture Trustee,
dated as of __________ __, 200_, relating to the Reserve Account,
substantially in the form attached as Exhibit D, as the same may be amended
and supplemented from time to time.
"Reserve Account Initial Deposit" means an amount equal to
$__________.
"Reserve Account Securities Intermediary" means __________ or any
other securities intermediary that maintains the Reserve Account pursuant to
the Reserve Account Control Agreement.
"Reserve Account Transfer Amount" means, for any Payment Date, an
amount equal to the lesser of (a) the amount of cash or other immediately
available funds on deposit in the Reserve Account on such Payment Date
(excluding amounts to be paid to the Seller pursuant to clause (i) of Section
5.6(d), but before giving effect to any other withdrawals therefrom relating
to such Payment Date) and (b) the amount, if any, by which the sum of the
amounts set forth in clauses (i) through (vi) of Section 5.5(c), inclusive,
exceeds the Total Distribution Amount for such Payment Date.
"Responsible Officer" means, with respect to the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee,
including any Vice President, Assistant Vice President, Assistant Treasurer,
Assistant Secretary, or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Sale Proceeds" has the meaning specified in Section 9.1(b).
"Schedule of Receivables" means the list of Receivables attached
hereto as Schedule A.
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"SFAS 140" means the Statement of Financial Accounting Standard No.
140, Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Control Agreements" means, collectively, the Collection
Account Control Agreement and the Reserve Account Control Agreement.
"Securities Intermediaries" means, collectively, JPMorgan Chase,
acting as securities intermediary under the Collection Account Control
Agreement or any successor thereto thereunder and __________, acting as
securities intermediary under the Reserve Account Control Agreement or any
successor thereto thereunder.
"Seller" means Chase Manhattan Bank USA, National Association, a
national banking association with its principal executive offices in Newark,
Delaware, in its capacity as the seller of the Receivables under this
Agreement, and each successor to Chase Manhattan Bank USA, National
Association (in the same capacity) pursuant to Section 6.3.
"Servicer" means Chase Manhattan Bank USA, National Association, a
national banking association with its principal offices in Newark, Delaware,
in its capacity as the servicer of the Receivables under this Agreement, and
each successor to Chase Manhattan Bank USA, National Association (in the same
capacity) pursuant to Section 7.3, and each successor servicer pursuant to
Section 8.2.
"Servicer's Certificate" means a certificate, substantially in the
form of Exhibit A 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 4.8.
"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 4.7.
"Servicing Fee Rate" means ____% 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 Payment Date, the last day of the second
Collection Period preceding the Collection Period in which such Payment Date
occurs.
"Simple Interest Method" means the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the product of the fixed
rate of interest multiplied by the unpaid Principal Balance multiplied by the
period of time elapsed since the preceding payment of interest was made, and
the remainder of such payment is allocable to principal.
"Simple Interest Receivable" means any Receivable providing for the
allocation of payments made thereunder to principal and interest in accordance
with the Simple Interest Method.
19
"Specified Reserve Account Balance" with respect to any Payment
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) such
Pool Balance; provided that the Specified Reserve Account Balance will be
calculated using a percentage of _____% for any Payment Date (beginning with
the __________ Payment Date) for which the Average Net Loss Ratio exceeds
_____% or the Average Delinquency Percentage exceeds _____%. Upon written
notification to the Indenture 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 Payment Date, the sum of
Available Interest and Available Principal for such Payment Date. The Total
Distribution Amount on any Payment Date shall exclude all payments and
proceeds (including any Liquidation Proceeds and any amounts received from
Dealers with respect to Receivables) of any Receivables the Repurchase Amount
of which has been included in the Total Distribution Amount for a prior
Payment Date.
"Treasury Regulations" means, the treasury regulations promulgated
under Code.
"Trust Accounts" means, collectively, the Collection Account, the
Note Distribution Account and the Reserve Account.
"Trust Agreement" means the Amended and Restated Trust Agreement
dated as of __________ __, 200_, between the Seller and the Owner Trustee, as
the same may be amended and supplemented from time to time.
"Trust Estate" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders (including all
property and interests Granted to the Indenture Trustee), including all
proceeds thereof and the Reserve Account.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force on the date hereof, unless otherwise specifically provided.
SECTION 1.2 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.
20
SECTION 1.3 Simple Interest Method; Methods of Allocating Payments
or Receivables; Allocations. All allocations of payments to principal and
interest and determinations of periodic charges and the like on the
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 payment of accrued and
unpaid interest on such Receivable, second, to reduce the scheduled principal
amount outstanding on the Receivable to the extent of the remaining scheduled
payment, third, to any outstanding fees and Late Fees under the terms of the
Receivable and fourth, to reduce the principal amount outstanding on the
Receivable. Amounts paid by the Seller or the Servicer in respect of
Repurchased Receivables shall be allocated as if the Obligor thereof had
prepaid such Receivable in full on the date as of which such Receivable was
repurchased by the Seller pursuant to Section 3.2 or purchased by the Servicer
pursuant to Section 4.6 or 9.1.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables. In consideration of the
Issuer's delivery of the Notes, the Certificates and the Class R Certificate
to and upon the order of the Seller, the Seller does hereby sell, transfer,
assign, and otherwise convey to the Issuer, 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 the Schedule of Receivables, which is
incorporated by reference herein, all proceeds thereof and all amounts
and monies received thereon on or 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 4.6 or 9.1), 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, guaranteed auto protection, 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; and
(iv) all proceeds (as defined in the Relevant UCC) of the foregoing.
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
Issuer.
It is the intention of the Seller and the Issuer that (a) the
assignment and transfer herein contemplated constitute a sale of the
Receivables, conveying good title thereto free and
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clear of any liens and encumbrances, from the Seller to the Issuer and (b) 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 Issuer 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 (iii) 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.
SECTION 2.2 Closing. The conveyance of the Receivables shall take
place at the offices of __________, New York, New York on the Closing Date,
simultaneously with the closing of the transactions contemplated by the
underwriting agreements related to the Notes and the Certificates and the
other Basic Documents. Upon the acceptance by the Seller of the Notes, the
Certificates and the Class R Certificate, the ownership of each Receivable and
the contents of the related Receivable File will be vested in the Issuer,
subject only to the lien of the Indenture.
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 Issuer shall rely in acquiring the
Receivables. 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 Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(i) Schedule of Receivables. The Schedule of Receivables identifies
the Receivables by account number, name of Obligor and remaining
principal balance of the Receivables as of the Cutoff Date and the
information set forth in the Schedule of Receivables with respect to each
Receivable is true and correct in all material respects, and no selection
procedures materially adverse to the Holders 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 Issuer.
(iii) Good Title. Immediately prior to the transfer and assignment
of the Receivables to the Issuer 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 Issuer
has either (i) good and marketable title to each Receivable, free and
clear of all Liens and rights of others, other than the Lien of the
Indenture Trustee under the Indenture, and the transfer has been
perfected under applicable law or (ii) a first priority perfected
security interest in each Receivable and the proceeds thereof.
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(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 Issuer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture.
(i) Acquisition. Each Receivable is a Dealer Receivable acquired
directly or indirectly from or made through a Dealer located
in the United States (including the District of Columbia);
(ii) Security. Each Receivable is secured by a new or used
automobile or light-duty truck;
(iii) Maturity of Receivables. Each Receivable had a remaining
maturity of not less than _____ months and not greater than _____ months,
and (A) in the case of each Receivable secured by new Financed Vehicles,
had an original maturity of at least _____ months and not more than _____
months, or (B) in the case of each Receivable secured by used Financed
Vehicles, had an original maturity of at least _____ months and not more
than _____ months.
(iv) Contract Rate. Each Receivable is a fully-amortizing fixed rate
simple interest contract or note that provides for level scheduled
monthly payments over its remaining term, has a Contract Rate of not more
than _____%;
(v) No Repossessions. Each Receivable is secured by a Financed
Vehicle that 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;
(vii) No Overdue Payments. Each Receivable had no payment that was
more than 30 days past due;
(viii) Remaining Principal Balance. Each Receivable had a remaining
Principal Balance of at least $_____ and not greater than $_____;
(ix) No Force Placed Insurance. 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;
(x) Receivable Files. The Receivable Files were kept at one or more
of the locations specified in Schedule B hereto;
(xi) Characteristics of Receivables. Each Receivable (a) has been
originated in the form of a credit sales transaction by a Dealer or a
purchase money loan or other note 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 and has been fully and properly
executed by the parties thereto, (b) if a retail installment sales
contract, has been
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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; (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;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) Security Interest in Financed Vehicle. Immediately prior to the
sale and assignment thereof to the Issuer as herein contemplated, each
Receivable was secured by a validly perfected first priority security
interest in 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 Issuer, 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 Issuer (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);
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(xvi) 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;
(xvii) 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);
(xviii) No Amendments. No Receivable has been amended except
pursuant to either instruments included in the Receivable Files or
instruments to be included in the Receivable Files pursuant to Section
4.2 (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);
(xix) No Defenses. The Seller had 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;
(xx) No Liens. 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;
(xxi) No Default. Except for payment defaults continuing for a
period of not more than 30 days as of the close of business on 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;
(xxii) Insurance. Each Receivable requires that the Obligor
thereunder maintain comprehensive, liability, theft and physical damage
insurance covering the related Financed Vehicle;
(xxiii) 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 or the Notes is unlawful, void
or voidable;
(xxiv) 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 Issuer a first perfected security interest in
the Receivables;
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(xxv) 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 Issuer), was in the
possession of the Seller;
(xxvi) [Excluded Loans. Each Receivable is not a Receivable
originated by or through a Dealer located in the State of Alabama or the
State of Maryland;] and
(xxvii) [No Debt Cancellation Policy. No Receivable is subject to a
Debt Cancellation Policy.]
SECTION 3.2 Repurchase Upon Breach or Failure of a Condition. The
Seller, the Servicer, the Indenture Trustee or the Owner Trustee, as the case
may be, shall inform the other parties in writing, upon the discovery by the
Seller, the Servicer or an Authorized Officer of the Indenture Trustee or the
Owner Trustee, as the case may be, 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 Holders' 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. 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. The sole remedy of the Issuer, the Indenture Trustee
or the Holders 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 and
shall exist without regard to any limitation set forth in any representation
or warranty concerning the knowledge of the Seller as to the facts stated
therein. The Owner 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 Issuer,
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 Issuer with respect
to each Receivable:
(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.
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The Servicer hereby agrees to act as custodian and as agent for the
Issuer hereunder. The Servicer acknowledges that it holds the documents and
instruments relating to the Receivables for the benefit of the Issuer. The
Issuer 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 Issuer, 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 Issuer 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. 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 Owner Trustee or the Indenture Trustee to identify
all Receivable Files and such related accounts, records and computer systems
and to verify, if the Owner Trustee or the Indenture Trustee so elects, the
accuracy of the Servicer's recordkeeping. The Servicer shall promptly report
to the Owner Trustee or the Indenture 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
Owner Trustee and the Indenture Trustee by 30 days' prior written notice. The
Servicer shall make available to the Owner Trustee, the Indenture Trustee or
their respective 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
Owner Trustee or Indenture Trustee shall reasonably 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 Indenture
Trustee (or, if the Notes have been paid in full, from the Owner Trustee), the
Servicer shall release any document in the Receivable Files to the Indenture
Trustee or Owner Trustee, or their respective agents or 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 Owner Trustee or Indenture Trustee, or their respective
agents or designees, 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
27
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 Issuer and (ii) the related Receivable File shall at
all times be property of the Issuer.
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
of the Indenture Trustee (or, if the Notes have been paid in full, of the
Owner Trustee). A certified copy of a by-law or of a resolution of the Board
of Directors of the Owner Trustee or the Indenture Trustee, as the case may
be, 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
Owner Trustee or the Indenture Trustee, as the case may be.
SECTION 3.6 Custodian's Indemnification. The Servicer, as custodian,
shall indemnify the Issuer, the Owner Trustee and the Indenture 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 Issuer, the Owner Trustee or the Indenture 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 willful misfeasance, bad faith, or negligence of the Issuer, the
Owner Trustee or the Indenture 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 7.5 or if all of the rights and obligations
of the Servicer shall have been terminated under Section 8.1, the appointment
of the Servicer as custodian may be terminated by the Indenture Trustee or by
the Holders of Notes evidencing not less than a majority of the aggregate
Outstanding Amount of the Notes (or, if there are no Notes outstanding, the
Holders of Certificates representing not less than a majority of the
Certificate Balance), in the same manner as the Indenture Trustee or such
Holders may terminate the rights and obligations of the Servicer under Section
8.1. As soon as practicable after any termination of such appointment, the
Servicer shall, at its expense, deliver the Receivable Files to the Issuer or
the Issuer's agent at such place or places as the Issuer may reasonably
designate. Notwithstanding the termination of the Servicer as custodian, the
Owner Trustee agrees that upon any such termination, the Issuer shall provide,
or cause its agent to provide, access to the Receivable Files to the Servicer
for the purpose of carrying out its duties and responsibilities with respect
to the servicing of the Receivables hereunder.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1 Duties of Servicer. The Servicer is hereby authorized to
act as agent for the Issuer and in such capacity 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
28
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 Receivables in cases of Obligor
defaults, accounting for collections, furnishing monthly and annual statements
to the Indenture Trustee with respect to distributions. 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 and adversely
affect the interests of Holders and is not outside customary or normal
servicing procedures. Without limiting the generality of the foregoing, the
Servicer shall be authorized and empowered by the Issuer to execute and
deliver, on behalf of itself, the Owner Trustee, the Indenture Trustee and the
Holders, 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 Issuer, 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 Issuer shall thereupon be deemed to have automatically assigned such
Receivable and the related property conveyed to the Issuer with respect to
such Receivable to the Servicer, solely for the purpose of collection. The
Owner Trustee shall furnish the Servicer with such documents as have been
prepared by the Servicer for execution by the Owner Trustee and as are
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
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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. In connection therewith, the Servicer may grant extensions, rebates
or adjustments on a Receivable without the consent of the Issuer; provided,
however, that if the Servicer extends the date for final payment by the
Obligor of any Receivable beyond the Final Scheduled Maturity Date, it shall
promptly repurchase such Receivable pursuant to Section 4.6. The Servicer is
authorized in its discretion to waive any Late Fees that may be due in the
ordinary course of collecting a Receivable; provided, further, that the
Servicer shall not agree to any change in the underlying Contract Rate on any
Receivable, to any change in the Principal Balance thereof (except with
respect to a prepayment of a scheduled payment that does not result in a
deferral of any other scheduled payment), to any reduction of the total number
of payments due thereunder or, subject to the foregoing, to any reduction of
the amount of any scheduled payment on a Receivable. 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 Final
Scheduled Maturity Date.
(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. The receivable
created by the refinancing shall not be property of the Issuer.
SECTION 4.3 Realization Upon Receivables. The Servicer shall use
reasonable efforts, consistent with its customary servicing procedures, to
repossess or otherwise take possession of the Financed Vehicle securing any
Receivable during the calendar month in which more than 10% of any scheduled
payment thereunder becomes 90 days delinquent; provided, however that the
Servicer may repossess or otherwise take possession of the Financed Vehicle
securing a Receivable (i) earlier if (A) such Receivable becomes a Defaulted
Receivable, (B) the Servicer determines that such Financed Vehicle is in
danger of being damaged, destroyed or otherwise made unavailable for
repossession or (C) the related Obligor voluntarily surrenders such Financed
Vehicle or (ii) later if (A) the Servicer is unable to locate such Financed
Vehicle, (B) the related Obligor is the subject of a bankruptcy proceeding or
(C) the Servicer otherwise defers repossession of such Financed Vehicle in
accordance with its normal and customary servicing practices and procedures.
After repossession of a Financed Vehicle, the Servicer shall in accordance
with its customary and usual practices and procedures sell such Financed
Vehicle in an auction or consign such Financed Vehicle to a Dealer for resale
as soon as is practicable after repossession, subject to any applicable laws.
The Servicer shall follow such customary and usual practices and procedures as
it shall deem necessary or advisable in determining when and if to exercise
reasonable efforts to realize upon any recourse to Dealers. 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
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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 4.6. 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 Maintenance of Security Interests in Financed Vehicles.
The Servicer, in accordance with its customary servicing procedures, shall
take such steps as are necessary to maintain perfection of the first priority
security interest of the Seller created in any Financed Vehicle which secures
a Receivable. The Owner Trustee, on behalf of the Issuer, and the Indenture
Trustee hereby authorize the Servicer, and 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 Issuer and by the Issuer
to the Indenture Trustee pursuant to the Indenture 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 Indenture
Trustee a perfected security interest in the related Financed Vehicle, the
Seller and Servicer hereby agree 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 Indenture Trustee and the Servicer further agrees to hold such certificate
of title as the Indenture Trustee's agent and custodian; provided, however,
that the Servicer shall not, nor shall the Owner Trustee, the Indenture
Trustee or Holders 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 4.5 Covenants of Servicer. The Servicer hereby makes the
following covenants on which the Issuer will rely in accepting the
Receivables:
(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
Issuer, the Indenture Trustee or any Holder 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 or otherwise amend the terms of any Receivable, except as
provided in Section 4.2.
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SECTION 4.6 Purchase of Receivables Upon Breach. The Seller, the
Servicer, the Indenture Trustee or the Owner 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 Indenture Trustee or the
Owner Trustee, as the case may be, of any breach by the Servicer of its
covenants under Section 4.5 which materially and adversely affects the
interest of the Holders in any Receivable (for this purpose, any breach of the
covenant set forth in Section 4.5(iii) shall be deemed to materially and
adversely affect the interest of the Holders in a Receivable). Except as
otherwise specified in Section 4.2, 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 Issuer, the Owner Trustee, the Indenture
Trustee or the Holders against the Servicer with respect to a breach pursuant
to Section 4.2 or 4.5 shall be to require the Servicer to purchase Receivables
pursuant to this Section 4.6. The Owner 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 4.6 or the
eligibility of any Receivable for purposes of this Agreement.
SECTION 4.7 Servicing Fee. The Servicing Fee for a Collection Period
shall be payable on the related Payment 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 Payment 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.
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 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 Issuer, the
Administrator, the Owner Trustee, the Indenture Trustee, the Owner Trustee's
and the Indenture Trustee's respective counsel, the Securities Intermediaries,
the Paying Agent, the Authenticating Agent, the Note Registrar and the
Certificate Registrar except for United States federal, state and local income
and franchise taxes, if any, imposed on the Issuer or any Holder or any
expenses in connection with realizing upon Receivables under Section 4.3.
SECTION 4.8 Servicer's Certificate. On or before each Determination
Date, the Servicer shall deliver to the Indenture Trustee, the Owner Trustee,
the Paying Agent and the Rating Agencies a Servicer's Certificate,
substantially in the form of Exhibit A, 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 Holders 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 Issuer. The Servicer shall also specify each
Receivable which the Seller or the Servicer is required to repurchase or
purchase, as the case
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may be, as of the last day of the preceding Collection Period and each
Receivable which the Servicer shall have determined to be a Defaulted
Receivable during the preceding Collection Period. 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 Owner
Trustee, the Paying Agent, the Indenture Trustee and each Rating Agency.
SECTION 4.9 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, 200_, 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 the 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 Agreement throughout
such year (or the period since the Cutoff Date 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 Indenture Trustee, the Owner
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 8.1. The Seller shall deliver to the Indenture Trustee and the Owner
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 8.1.
SECTION 4.10 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 4.9(a) attached) addressed to the Board of Directors of
the Servicer, for the information and use of the Indenture Trustee, the Owner
Trustee and the Rating Agencies on or before March of each year, beginning
March 31, 200_, to the effect that, with respect to the twelve months ended
the preceding December 31 (or the period since the Cutoff Date, in the case of
the first such certificate), 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 such 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:
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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
Owner Trustee and the Indenture 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.
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 4.11 Access by Holders to Certain Documentation and
Information Regarding Receivables. The Servicer shall provide to the Holders
access to the Receivable Files in such cases where the Holders shall be
required by applicable statutes or regulations to have access to such
documentation. Access by the Holders 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 4.11 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 4.11.
SECTION 4.12 Reports to Holders and the Rating Agencies. (a) The
Indenture Trustee or the Owner Trustee, as applicable, shall provide to any
Holder who so requests in writing (addressed to the Corporate Trust Office of
such trustee) a copy of any Servicer's Certificate described in Section 4.8,
of the annual statement described in Section 4.9(a), or of the annual report
described in Section 4.10. The Indenture Trustee or the Owner Trustee, as
applicable, may require the Holder to pay a reasonable sum to cover the cost
of the Indenture Trustee's or the Owner Trustee's complying with such request,
as applicable.
(b) The Indenture Trustee or the Owner Trustee, as applicable, shall
forward to the Rating Agencies the statement to Holders described in Section
5.8 and any other reports it may receive pursuant to this Agreement to (i)
Standard & Poor's, Standard & Poor's Ratings Service, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (ii) Moody's, ABS Monitoring Dept., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (iii) to Fitch, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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SECTION 4.13 Reports to the Securities and Exchange Commission. The
Servicer shall, on behalf of the Issuer, 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.
ARTICLE V
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1 Establishment of Collection Account and Note
Distribution Account.(a) On or prior to the Closing Date, the Issuer, the
Collection Account Securities Intermediary and the Indenture Trustee shall
have entered into the Collection Account Control Agreement pursuant to which
the Collection Account shall be established and maintained for the benefit of
the Noteholders and the Certificateholders. If the depositary of the
Collection Account ceases to be either a Qualified Institution or a Qualified
Trust Institution, as applicable, the Issuer shall cause the Collection
Account to be moved to a Qualified Institution or a Qualified Trust
Institution and the Indenture Trustee shall cause the depositary maintaining
the new Collection Account to assume the obligations of the existing
Collection Account Securities Intermediary under the Collection Account
Control Agreement 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 in accordance with the Collection Account
Control Agreement at the written direction of the Servicer to the extent
provided in Section 8.3(a) and Section 8.3(c) of the Indenture in Permitted
Investments that mature not later than the Deposit Date next succeeding the
date of investment except, if the Collection Account Securities Intermediary
and the Indenture Trustee are the same Person, investments on which the
Indenture Trustee is the obligor (including repurchase agreements on which the
Indenture Trustee, in its commercial capacity, is liable as principal) may
mature on the next succeeding Payment Date; provided, however, that once such
amounts have been invested in Permitted Investments, such Permitted
Investments must be held or maintained until they mature on or before the
dates described above.
(b) On or prior to the Closing Date, the Servicer shall establish
and maintain for the benefit of the Noteholders, in the name of the Indenture
Trustee, an Eligible Deposit Account for the deposit of distributions to the
Noteholders (the "Note Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Noteholders. The Note Distribution Account shall be established initially at
JPMorgan Chase. Should any depositary of the Note Distribution Account or the
Certificate Distribution Account (including JPMorgan 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.
Amounts on deposit in the Note Distribution Account shall not be invested.
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(c) The Indenture Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Note Distribution
Account and in all proceeds thereof and all such funds, investments, proceeds
and income shall be part of the Owner Trust Estate.
SECTION 5.2 Collections. (a) The Servicer shall remit daily within
forty-eight hours of receipt to the Collection Account all Collections
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
ratings of the Servicer are at least P-1 by Moody's, "F1" 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 JPMorgan 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 Indenture Trustee and the Owner 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 Indenture
Trustee and the Owner Trustee, with such written notice by 12 noon, New York
City time, on such Deposit Date, then the Indenture Trustee and the Owner
Trustee shall assume that no deposits were made to the Collection Account
pursuant to this Section 5.2. 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.
(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, and (i) the
Servicer discovers its error prior to the Payment following such deposit, the
Indenture Trustee, at the written direction of the Servicer, shall withdraw
such amounts and pay them to the Servicer or (ii) the Servicer shall be deemed
to have purchased such Receivable pursuant to Section 4.6 as of the last day
of the Collection Period during which such error shall have occurred.
SECTION 5.3 [Reserved]
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, 4.6 and 9.1(a), 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. (a) No later than 12 noon, New York City
time, on each Determination Date, the Servicer shall calculate all amounts
required to determine the amounts to be withdrawn from the Reserve Account (if
any) and deposited into the Collection
36
Account and the amounts to be withdrawn from the Collection Account and paid
to the Servicer and the Administrator, deposited into the Note Distribution
Account and the Certificate Distribution Account and/or paid to the Seller
pursuant to Section 5.6(d) with respect to the next succeeding Payment Date.
(b) On each Deposit Date, the Servicer shall instruct the Indenture
Trustee in writing (based on the information contained in the Servicer's
Certificate delivered on the related Determination Date pursuant to Section
4.8) to withdraw from the Reserve Account and deposit in the Collection
Account the Reserve Account Transfer Amount (if any) for the related Payment
Date, and the Indenture Trustee shall so withdraw and deposit the Reserve
Account Transfer Amount for such Payment Date.
(c) Not later than 11:00 a.m., New York City time, on each Payment
Date, at the Servicer's direction, the Indenture Trustee, or the Paying Agent
on behalf of the Indenture 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 Payment Date:
(i) to the Servicer, the sum of (x) the Servicing Fee for the
preceding Collection Period, plus (y) 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;
(ii) to the Administrator, the sum of (x) the Administration Fee for
such Payment Date, plus (y) the amount of any Administration Fee
previously due but not paid, if any;
(iii) to the Note Distribution Account, the Noteholders' Interest
Distributable Amount;
(iv) except as set forth in Section 5.5(d), to the Owner Trustee for
deposit in the Certificate Distribution Account, the Certificateholders'
Interest Distributable Amount;
(v) except as set forth in Section 5.5(d), to the Note Distribution
Account, the Noteholders' Principal Distributable Amount; and
(vi) except as set forth in Section 5.5(d), to the Owner Trustee for
deposit in the Certificate Distribution Account, the Certificateholders'
Principal Distributable Amount; and
(vii) except as set forth in Section 5.5(d), to the Reserve Account,
any remaining portion of the Total Distribution Amount.
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In the event that the Collection Account is maintained with an
institution other than the Indenture Trustee, the Servicer shall instruct and
cause such institution to make all deposits and distributions pursuant to this
Section 5.5(c) on the related Deposit Date.
(d) If the Notes have been declared immediately due and payable as
provided in Section 5.2 of the Indenture following the occurrence of an Event
of Default described in clause (a) or (b) of Section 5.2 of the Indenture, any
amounts remaining in the Collection Account after the distributions described
in clauses (i), (ii) and (iii) of Section 5.5(c) shall be distributed as
follows: (1) an amount equal to the Outstanding Amount of the Notes will be
deposited in the Note Distribution Account, and (2) any remaining amounts will
be applied pursuant to clauses (iv), (v), (vi) and (vii) of Section 5.5(c).
SECTION 5.6 Reserve Account. (a) On or prior to the Closing Date, the
Issuer, the Reserve Account Securities Intermediary and the Indenture Trustee
shall have entered into the Reserve Account Control Agreement pursuant to
which the Reserve Account shall be established and maintained for the benefit
of the Noteholders and the Certificateholders. Pursuant to Section 2.5 of the
Trust Agreement, on the Closing Date, the Owner Trustee shall deposit the
Reserve Account Initial Deposit into the Reserve Account.
(b) If the depositary of the Reserve Account ceases to be either a
Qualified Institution or a Qualified Trust Institution, as applicable, the
Issuer shall cause the Reserve Account to be moved to a Qualified Institution
or a Qualified Trust Institution and the Indenture Trustee shall cause the
depositary maintaining the new Reserve Account to assume the obligations of
the existing Reserve Account Securities Intermediary under the Reserve Account
Control Agreement 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.
(c) All amounts held in the Reserve Account shall be invested in
accordance with the Reserve Account Control Agreement at the written direction
of the Class R Certificateholder to the extent provided in Section 8.3(a) and
Section 8.3(c) of the Indenture in Permitted Investments that mature not later
than the Deposit Date next succeeding the date of investment except, if the
Reserve Account Securities Intermediary and the Indenture Trustee are the same
Person, investments on which the Indenture Trustee is the obligor (including
repurchase agreements on which the Indenture Trustee, in its commercial
capacity, is liable as principal) may mature on the next succeeding Payment
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, but in no event that mature later than 90 days after the date of
investment, if the Rating Agency Condition is satisfied. Once amounts on
deposit in the Reserve Account are invested in Permitted Investments, such
Permitted Investments must be held or maintained until they mature on or
before the dates described above.
(d) On each Payment Date, the Indenture Trustee shall withdraw from
the Reserve Account and pay to the Class R Certificateholder the sum of (i)
all investment earnings (net of losses and investment expenses) credited to
the Reserve Account since the prior Payment Date and (ii) the excess, if any,
of the amount on deposit in the Reserve Account over the Specified Reserve
Account Balance with respect to such Payment Date (after giving effect to all
38
deposits therein or withdrawals therefrom on such Payment Date). Upon any
distribution to the Class R Certificateholder of amounts from the Reserve
Account, the Holders will have no rights in, or claims, to, such amounts.
Amounts properly distributed to the Class R Certificateholder from the Reserve
Account shall not be available under any circumstances to the Indenture
Trustee, and the Class R Certificateholder shall not in any event thereafter
be required to refund any such distributed amounts.
SECTION 5.7 Net Deposits. Chase USA (in its capacity as the Seller
or the Servicer) may make the remittances pursuant to Sections 5.2 and 5.4
above, net of amounts to be retained by it or distributed to it (also in any
such capacity) pursuant to Section 4.7 (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 and Noteholders. (a) On
each Payment Date, the Servicer shall provide to the Indenture Trustee and the
Paying Agent (for the Paying Agent to forward to each Noteholder of record
pursuant to the Indenture) and to the Owner Trustee (for the Owner Trustee to
forward to each Certificateholder of record pursuant to the Trust Agreement) a
statement substantially in the form of Exhibit B (or such other form that is
acceptable to the Indenture Trustee, the Owner Trustee and the Servicer), with
a copy to the Rating Agencies, setting forth at least the following
information as to the Notes (separately stating such information as to the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes) and the Certificates, to the extent applicable:
(i) the amount of such distribution allocable to principal on each
class of Notes and the Certificates;
(ii) the amount of such distribution allocable to interest on each
class of Notes and the Certificates;
(iii) the amount of the Servicing Fee paid to the Servicer pursuant
to Section 5.5(c);
(iv) the amount of the Administration Fee paid to the Administrator
on such Payment Date;
(v) the Outstanding Amount of each class of the Notes, the Class A-1
Note Pool Factor, the Class A-2 Note Pool Factor, the Class A-3 Note Pool
Factor, the Class A-4 Note Pool Factor, the Certificate Balance and the
Certificate Pool Factor, in each case after giving effect to payments
allocated to principal reported under (i) above;
(vi) the Pool Balance as of the last day of the preceding Collection
Period;
(vii) the aggregate amount of the Repurchase Amounts for Repurchased
Receivables with respect to the related Collection Period paid by each of
the Seller and the Servicer (accounted for separately);
39
(viii) the amount of Aggregate Net Losses, if any, for such Payment
Date;
(ix) the balance of the Reserve Account on such Payment Date, after
giving effect to deposits into and withdrawals from the Reserve Account
on such Payment Date;
(x) the Specified Reserve Account Balance for such Payment Date;
(xi) the Total Distribution Amount for such Payment Date;
(xii) the Noteholders' Distributable Amount and the components
thereof;
(xiii) the Certificateholders' Distributable Amount and the
components thereof; and
(xiv) the Reserve Account Transfer Amount, if any, for such Payment
Date.
Each amount set forth pursuant to subclause (i), (ii), (iii), (iv),
(xii) or (xiii) above shall be expressed as a dollar amount per $1,000 of
original principal balance of a Note or a Certificate, as applicable.
ARTICLE VI
THE SELLER
SECTION 6.1 Representations of Seller. The Seller makes the
following representations on which the Issuer shall rely in acquiring the
Receivables. The representations shall speak as of the execution and delivery
of this Agreement, and shall survive the sale of the Receivables to the Issuer
and pledge thereof to the Indenture Trustee pursuant to the Indenture.
(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 the other Basic Documents to which
it is a party and to carry out their respective terms, the Seller has
full power and authority to sell and assign the property to be sold and
assigned to the Issuer as the Owner Trust Estate and has duly authorized
such sale and assignment to the Issuer by all necessary corporate action;
and the execution, delivery, and performance of this Agreement and the
other Basic Documents to which it is a party has been duly authorized by
the Seller by all necessary 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; this Agreement and
each of the other Basic Documents to
40
which it is a party 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 other Basic Documents and the fulfillment of
the terms hereof and thereof 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 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, any other Basic Document,
the Notes or the Certificates, (b) seeking to prevent the issuance of the
Notes or the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document, (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, any other Basic Document, or the
Notes or the Certificates, or (d) relating to the Seller and which might
adversely affect the federal or state income tax attributes of the Notes
or the Certificates.
SECTION 6.2 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 Issuer, the
Owner Trustee and the Indenture Trustee from and against any taxes that may at
any time be asserted against any such Person with respect to, and as of the
date of, the sale of the Receivables to the Issuer or the issuance and
original sale of the Notes and 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 the other Basic Documents, and costs and
expenses in defending against the same.
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The Seller shall indemnify, defend, and hold harmless the Issuer,
the Owner Trustee and the Indenture Trustee from and against any loss,
liability or expense incurred by reason of (i) the Seller's willful
misfeasance, bad faith, or gross 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 Notes and the
Certificates.
Indemnification under this Section 6.2 shall include reasonable fees
and expenses of counsel and expenses of litigation. If the Seller shall have
made any indemnity payments to the Issuer, the Owner Trustee or the Indenture
Trustee, respectively, pursuant to this Section 6.2 and the Issuer, the Owner
Trustee or the Indenture Trustee, respectively, thereafter shall collect any
of such amounts from others, the Issuer, the Owner Trustee or the Indenture
Trustee, respectively, shall repay such amounts to the Seller, without
interest.
SECTION 6.3 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
Issuer, the Owner Trustee, the Indenture Trustee, the Servicer and the Rating
Agencies.
SECTION 6.4 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 or under any other Basic Documents. 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
or any other Basic Document, and that in its opinion may involve it in any
expense or liability.
SECTION 6.5 Seller May Own Notes and Certificates. The Seller or any
of its Affiliates may in its individual or any other capacity become the owner
or pledgee of Notes or 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 "Outstanding" specified in Section 1.1. Notes or
Certificates so owned by or pledged to the Seller or any Affiliate thereof
shall have an equal and proportionate benefit under the provisions of this
Agreement, without preference, priority, or distinction as among all of the
Notes or Certificates, as applicable.
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer. The Servicer makes the
following representations on which the Issuer shall rely in acquiring the
Receivables. The representations shall speak as of the execution and delivery
of this Agreement (or as of a date a Person (other
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than the Indenture Trustee) becomes Servicer pursuant to Section 7.3 or
Section 8.2), and shall survive the sale of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(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 Issuer.
(ii) Power and Authority. The Servicer has the power and authority
to execute and deliver this Agreement and the Basic Documents to which it
is a party and to carry out the terms thereof; and the execution,
delivery, and performance of this Agreement and the other Basic Documents
has been duly authorized by the Servicer by all necessary action.
(iii) Binding Obligations. This Agreement and the other Basic
Documents to which it is a party constitute legal, valid, and binding
obligations of the Servicer enforceable in accordance with their
respective 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 other Basic Documents and the fulfillment of
the terms hereof and thereof 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
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, the Notes or the
Certificates, (b) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated
by this Agreement or any other Basic Document, (c) seeking any
determination or ruling that might materially and
43
adversely affect the performance by the Servicer of its obligations
under, or the validity or enforceability of, this Agreement, any other
Basic Document, the Notes or the Certificates, or (d) relating to the
Servicer and which might adversely affect the federal or state income tax
attributes of the Notes or 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 7.2 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
Issuer, the Owner Trustee, the Indenture Trustee and the Holders 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
Issuer, the Owner Trustee and the Indenture Trustee from and against any
taxes that may at any time be asserted against the Issuer 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 Issuer or the issuance and original sale
of the Notes or the Certificates, or asserted with respect to ownership
of the Receivables or federal, state or other income taxes, including
franchise taxes measured by net income) arising out of distributions on
the Notes or the Certificates and costs and expenses in defending against
the same.
(iii) The Servicer shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee and the Holders 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 Issuer, the Owner
Trustee, the Indenture Trustee or the Holders through the willful
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 7.2 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 7.2 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 7.2
shall survive the termination of such Servicer with respect to any act or
failure to act which occurs prior to such Servicer's termination. The
provisions of Section 6.7 of the Indenture and Sections 8.1 and 8.2 of the
Trust Agreement with respect to the Servicer's obligations are incorporated by
reference herein.
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SECTION 7.3 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 hereunder, 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 Issuer, the Owner Trustee,
the Indenture Trustee, the Seller and the Rating Agencies in writing of any
such merger or consolidation.
SECTION 7.4 Limitation on Liability of Servicer and Others. (a)
Neither the Servicer nor any of the directors or officers or employees or
agents of the Servicer shall be under any liability to the Issuer, the Owner
Trustee, the Indenture Trustee or the Holders, 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 willful 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
or officer or employee or agent of the Servicer 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 under this
Agreement.
(b) The Servicer, and any director, or officer, employee or agent of
the Servicer, shall be indemnified by the Issuer 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 or the
Basic Documents; (ii) any loss, liability, or expense incurred solely by
reason of the Servicer's willful 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 Basic Documents; and (iii)
any loss, liability, or expense for which the Issuer is to be indemnified by
the Servicer under this Agreement or the Basic Documents. Any amounts due the
Servicer pursuant to this Section 7.4 shall be payable on a Payment Date from
amounts distributable to the Seller from the Reserve Account pursuant to
Section 5.6(d).
(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 Holders 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
Issuer, and the Servicer shall be entitled to be reimbursed therefor. Any
amounts due the Servicer pursuant to this Section 7.4 shall be payable on a
Payment Date from amounts distributable to the Seller from the Reserve Account
pursuant to Section 5.6(d).
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The Person to be indemnified shall provide the Issuer, the Owner
Trustee and the Indenture Trustee with a certificate and accompanying Opinion
of Counsel requesting indemnification and setting forth the basis for such
request.
SECTION 7.5 Servicer Not To Resign. Except as permitted by Section
7.3, 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 the Servicer shall be communicated to the Issuer, the Indenture Trustee,
the Owner 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 Issuer, the Indenture Trustee and the Owner
Trustee concurrently with such notice. No such resignation shall become
effective until the Indenture 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 8.2.
SECTION 7.6 Delegation of Duties. So long as Chase USA 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.
The Servicer shall pay any compensation payable to such Person from its own
funds and none of the Issuer, the Owner Trustee, the Indenture Trustee or the
Holders shall have any liability to such Person with respect thereto.
Notwithstanding any delegation of duties by the Servicer pursuant to this
Section 7.6, 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 7.5. Any agreement that
may be entered into by the Servicer and a Person that provides for any
delegation of the Servicer's duties hereunder to such Person shall be deemed
to be between the Servicer and such Person alone, and the Issuer, the Owner
Trustee, the Indenture Trustee and Holders shall not be deemed parties thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect thereto.
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1 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 Indenture Trustee
the Servicer's Certificate for the related Collection Period, or any
failure by the Servicer to deliver to the Indenture Trustee, for deposit
in any of the Trust Accounts or the Certificate Distribution Account, any
proceeds or payment required to be so delivered under the terms of the
Certificates or the Notes 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
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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
Indenture Trustee or the Owner Trustee or (2) to the Indenture Trustee or
the Owner Trustee, as applicable, and the Servicer by the Holders of
Notes evidencing not less than 25% of the Outstanding Amount of the Notes
(or, if the Notes have been paid in full, by Holders of the Certificates
evidencing not less than 25% of the Certificate Balance);
(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 this Agreement or the Indenture, which failure
shall (a) materially and adversely affect the rights of the Issuer or the
Holders, and (b) continue 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 Indenture
Trustee or the Owner Trustee, or (2) to the Indenture Trustee or the
Owner Trustee, as applicable, and the Servicer by the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes (or,
if the Notes have been paid in full, by Holders of the Certificates
evidencing not less than 25% of the Certificate Balance);
(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 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 any Event of Servicing Termination as 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 Indenture Trustee or the
Holders of Notes evidencing not less than a majority of the Outstanding Amount
of the Notes (or, if the Notes have been paid in full and the Indenture has
been discharged in accordance with its terms, by the Owner Trustee or the
Holders of Certificates evidencing not less than a majority of the Certificate
Balance), by notice given in writing to the Servicer (and to the Indenture
Trustee or the Owner Trustee, as applicable, if given by Holders) 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, the Notes or the Receivables or otherwise, shall pass to
and be vested in the Indenture Trustee pursuant to this Section 8.1; and,
without limitation, the Indenture Trustee shall be hereby authorized and
empowered to execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or
47
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 Indenture 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 predecessor 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
8.1 shall be paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses. The Indenture Trustee and the Owner
Trustee shall give written notice of any termination of the Servicer to their
related Holders, and the Indenture Trustee shall give such notice to the
Rating Agencies. Neither the Indenture Trustee nor any successor Servicer
shall be deemed to be in default hereunder by reason of its failure to make,
or any delay in making, any distribution hereunder or any portion thereof
which was caused by (i) the failure of the predecessor Servicer to deliver, or
any delay in delivering cash, documents or records to it, or (ii) restrictions
imposed by any regulatory authority having jurisdiction over the predecessor
Servicer.
SECTION 8.2 Indenture Trustee to Act; Appointment of Successor
Servicer. Upon the Servicer's receipt of notice of termination pursuant to
Section 8.1 or resignation pursuant to Section 7.5, the Indenture 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
compensation therefor, the Indenture 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 Indenture 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 Indenture 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 Indenture Trustee and such successor Servicer shall take such
action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Unless the Indenture Trustee shall be prohibited by law
from so acting, the Indenture Trustee shall not be relieved of its duties as
successor Servicer under this Section 8.2 until the newly appointed successor
Servicer shall have assumed the responsibilities and obligations of the
Servicer under this Agreement.
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SECTION 8.3 Notification to Noteholders and Certificateholders. Upon
any Event of Servicing Termination, or appointment of a successor Servicer
pursuant to this Article VIII, the Owner Trustee shall give prompt written
notice thereof to Certificateholders and the Indenture Trustee shall give
prompt written notice thereof to the Noteholders, at their respective
addresses of record, and to the Rating Agencies.
SECTION 8.4 Waiver of Past Defaults. The Holders of Notes evidencing
at least a majority of the Outstanding Amount of the Notes (or, the Holders of
Certificates evidencing not less than a majority of the Certificate Balance,
in the case of any Event of Servicing Termination that does not adversely
affect the Indenture Trustee or the Noteholders) may, on behalf of all such
Holders, 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 any of the Trust Accounts or
the Certificate Distribution 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 shall give prompt written
notice of any waiver to the Rating Agencies; provided, however, that the
Indenture Trustee or the Owner Trustee shall only be required to give such
notice if a Responsible Officer thereof has actual knowledge of the related
event.
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables; Trust Termination.
(a) As of the last day of any Collection Period as of which the Pool Balance
shall be equal to or less than the Optional Purchase Percentage of the
Original Pool Balance, the Servicer shall have the option to purchase the
Owner Trust Estate, other than the Trust Accounts and the Certificate
Distribution Account. To exercise such option, the Servicer shall notify the
Indenture Trustee, the Owner Trustee, the Note Registrar and the Certificate
Registrar in writing, no later than the 25th day of the Collection Period
following which purchase is to be effected, shall pay the aggregate Repurchase
Amount for the Receivables (including Defaulted Receivables) and shall succeed
to all interests in, to and under such property. The payment shall be made in
the manner specified in Section 5.4, and shall be distributed pursuant to
Section 5.5. The Indenture Trustee shall not permit the purchase of the Owner
Trust Estate pursuant to this Section 9.1 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 Indenture Trustee an Opinion of Counsel 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.
(b) Upon any sale of the assets of the Issuer pursuant to Article V
of the Indenture, the Servicer shall instruct the Indenture Trustee in writing
to deposit the proceeds from such sale after all payments and reserves
therefrom (including the expenses of such sale) have been made (the "Sale
Proceeds") in the Collection Account. On the Payment Date on which the Sale
Proceeds are deposited in the Collection Account (or, if such proceeds are not
so
49
deposited on a Payment Date, on the Payment Date immediately following such
deposit), the Servicer shall instruct the Indenture Trustee in writing to
make, and the Indenture Trustee shall make, the following deposits and
distributions (after the application on such Payment Date of the Total
Distribution Amount pursuant to Section 5.5) from the Sale Proceeds and any
funds remaining on deposit in the Reserve Account (including the proceeds of
any sale of investments therein):
(i) to the Note Distribution Account, any portion of the
Noteholders' Interest Distributable Amount not otherwise deposited into
the Note Distribution Account on such Payment Date;
(ii) to the Note Distribution Account, the Outstanding Amount of the
Notes (after giving effect to the reduction in the Outstanding Amount of
the Notes resulting from the deposits made in the Note Distribution
Account on such Payment Date);
(iii) to the Certificate Distribution Account, any portion of the
Certificateholders' Interest Distributable Amount not otherwise deposited
into the Certificate Distribution Account on such Payment Date; and
(iv) to the Certificate Distribution Account, the Certificate
Balance and any Certificateholders' Principal Carryover Shortfall (after
giving effect to the reduction in the Certificate Balance resulting from
the deposits made in the Certificate Distribution Account on such Payment
Date).
Any Sale Proceeds remaining after the deposits described above shall be paid
to the Class R Certificateholder.
(c) Notice of any termination of the Issuer shall be given by the
Servicer to the Owner Trustee, the Indenture Trustee and the Rating Agencies
as soon as practicable after the Servicer has received notice thereof.
(d) After the payment to the Indenture Trustee, the Owner Trustee,
the Holders and the Servicer of all amounts required to be paid under this
Agreement, the Indenture and the Trust Agreement, any amounts on deposit in
the Reserve Account or the Collection Account shall be paid to the Class R
Certificateholder, and any other assets remaining in the Owner Trust Estate
shall be distributed to the Class R Certificateholder.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment. This Agreement may be amended by the Seller,
the Servicer and the Owner Trustee, on behalf of the Issuer, with the prior
consent of the Indenture Trustee and prior notice to the Rating Agencies but
without prior notice to or the consent of any of the Holders, (i) to cure any
ambiguity, to correct or supplement any provisions in this Agreement which may
be inconsistent with any other provisions herein, 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
50
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 Owner Trustee and the
Indenture Trustee, adversely and materially affect the interests of the Issuer
or any of the Holders; 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 10.6(a) of this Agreement. Notwithstanding the foregoing, no
amendment modifying the provisions of Section 5.5 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 and the Owner Trustee, on behalf of the Issuer, with the consent
of the Indenture Trustee, the Holders of Certificates evidencing at least a
majority of the Certificate Balance of the Certificates and the consent of the
Holders of Notes evidencing at least a majority of the Outstanding Amount of
the Notes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Noteholders or the Certificateholders
(including effecting a transfer or assignment in compliance with Section
10.6(a) of this Agreement); provided, however, that no such amendment, except
with the consent of the Holders of all Certificates or Notes, as applicable,
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 or Note, or
(b) reduce the aforesaid percentage of the Certificate Balance of the
Certificates or the Outstanding Amount of the Notes required to consent to any
such amendment.
Promptly after the execution of any amendment or consent referred to
in this Section 10.1, the Owner Trustee shall furnish a copy of such amendment
or consent to each Certificateholder and the Indenture Trustee, who shall
promptly furnish a copy to each Noteholder and to the Rating Agencies.
It shall not be necessary for the consent of the Indenture Trustee,
the Certificateholders or the Noteholders pursuant to this Section 10.1 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 or Noteholders shall be subject to
such reasonable requirements as the Indenture Trustee or the Owner Trustee may
prescribe.
Prior to the execution of any amendment to this Agreement, the
Indenture Trustee and the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Indenture Trustee and the Owner
Trustee shall not be obligated to enter into any such amendment which affects
the Indenture Trustee's and the Owner Trustee's own rights, duties or
immunities under this Agreement.
Satisfaction of the Rating Agency Condition is required 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 10.1.
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SECTION 10.2 Protection of Title to Owner Trust Estate. (a) The
Seller shall execute and file such financing 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 Issuer and the Indenture Trustee in the Receivables and
in the proceeds thereof. The Servicer shall deliver (or cause to be delivered)
to the Owner Trustee and the Indenture Trustee file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as
available following such filing. In addition, the Seller hereby authorizes the
Issuer at any time and from time to time to file any financing statements and
amendments thereto in any jurisdiction as may be necessary or desirable to
preserve, maintain, and protect the interests of the Issuer and the Indenture
Trustee in the Receivables and the proceeds thereof.
(b) Neither the Seller nor the Servicer shall change its name in any
manner that would, could, or might make any financing statement or
continuation statement filed by the Seller in accordance with paragraph (a)
above seriously misleading within the meaning of ss. 9-506 (or any comparable
section) of the Relevant UCC, unless it shall have given the Owner Trustee and
the Indenture Trustee at least 30 days prior written notice thereof.
(c) The Seller and the Servicer shall give the Owner Trustee and the
Indenture Trustee at least 60 days prior written notice of any change in the
jurisdiction of its organization or the State designated as its location in
its Articles of Association if, as a result of such change in jurisdiction or
the State designated as its location in its Articles of Association, 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 new financing statement. The Servicer shall at all times maintain each
office from which it shall service Receivables or at which the Receivable
Files are located within the United States of America.
(d) The Servicer shall maintain accounts and records 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 systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Issuer, 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 Issuer and has been pledged to the Indenture
Trustee. Indication of the Issuer's and Indenture Trustee's interest in 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 receivable 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
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whatsoever to any Receivable, shall indicate clearly that such Receivable has
been sold and is owned by the Issuer and has been pledged to the Indenture
Trustee.
(g) The Servicer shall permit the Indenture Trustee and the Owner
Trustee and their respective 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 Owner Trustee or
the Indenture Trustee, within five Business Days, a list of all Receivables by
account number and name of Obligor then held by the Issuer, together with a
reconciliation of such list to the Schedule of Receivables and to each of the
Servicer Certificates indicating removal of Receivables from the Owner Trust
Estate.
(i) The Servicer shall deliver to the Owner Trustee and the
Indenture Trustee:
(i) 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 Issuer and the Indenture 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; and
(ii) 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 Issuer and the
Indenture 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 10.4, 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 Seller shall, to the extent required by applicable law,
cause the Certificates and the Notes 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.
53
SECTION 10.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION 10.4 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 Indenture Trustee, (b) in
the case of the Servicer, c/o Chase Manhattan Automotive Finance Corporation,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Financial
Controller, or at such other address as shall be designated by the Servicer in
a written notice to the Indenture Trustee, (c) in the case of the Indenture
Trustee, at __________, __________,
__________________________________________________, Attention: __________ and
(d) in the case of the Issuer and the Owner Trustee, at c/o
____________________, __________________________________________________,
Attention: __________. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of
record of such Holder. Any notice to a Holder so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder shall receive such notice.
SECTION 10.5 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 of the Notes or the rights of the Holders thereof.
SECTION 10.6 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 6.3, 7.3, 7.5 and 8.2,
neither the Seller nor the Servicer may assign all, or a portion of, its
rights, obligations and duties under this Agreement unless such transfer or
assignment satisfies the Rating Agency Condition. In the event of a transfer
or assignment pursuant to this Section 10.6, the Rating Agencies shall be
provided with notice of such transfer or assignment.
SECTION 10.7 Certificates and Notes Nonassessable and Fully Paid.
The interests represented by the Certificates and Notes shall be nonassessable
for any losses or expenses of the Issuer or for any reason whatsoever, and,
upon authentication thereof by the Indenture Trustee and the Owner Trustee
pursuant to the Trust Agreement and the Indenture, respectively, each
Certificate and Note shall be deemed fully paid.
SECTION 10.8 Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, and their respective
successors and permitted assigns. The Administrator, the Owner Trustee,
individually and on behalf of the Certificateholders and the Class R
Certificateholder, and the Indenture Trustee, individually and on behalf of
the Noteholders are third-party beneficiaries to this Agreement and are
entitled to the rights and benefits hereunder and may enforce the provisions
hereof as it were a party hereto.
54
Except as otherwise provided in this Agreement, no other person will have any
right or obligation hereunder.
SECTION 10.9 Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest
of the Issuer in, to and under the Receivables and the other property
constituting the Owner Trust Estate and/or the assignment of any or all of the
Issuer's rights and obligations hereunder to the Indenture Trustee and agrees
that the enforcement of a right or remedy hereunder by the Indenture Trustee
shall have the same force and effect as if such right or remedy had been
enforced or executed by the Issuer.
SECTION 10.10 Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by ____________________ not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer, and in no
event shall ____________________ in its individual capacity or, except as
expressly provided in the Trust Agreement, as Owner Trustee of the Issuer have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which recourse
shall be had solely to the assets of the Issuer. For all purposes of this
Agreement, in the performance of its duties or obligations hereunder or in the
performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by __________ not in its
individual capacity but solely as Indenture Trustee, and in no event shall
__________ have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 10.11 No Petition. The Seller and Servicer, by entering into
this Agreement hereby covenant and agree that they will not at any time
institute against the Issuer or join in any institution against the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to this
Agreement or any of the other Basic Documents.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Seller
and Servicer
By: -------------------------------------
Name:
Title:
CHASE MANHATTAN AUTO OWNER TRUST,
200_-_, as Issuer
By: [____________________],
not in its individual capacity but
solely as Owner Trustee on behalf of
the Issuer
By: --------------------------------------
Name:
Title:
Acknowledged and Accepted:
[--------------------]
not in its individual capacity,
but solely in its capacity
as Indenture Trustee
By: --------------------------------
Name:
Title:
SCHEDULE A
LIST OF RECEIVABLES
Delivered to the Owner Trustee and the Indenture Trustee
on the Closing Date.
SCHEDULE B
Location of Receivable Files
EXHIBIT A
FORM OF SERVICER'S CERTIFICATE
EXHIBIT B
FORM OF CERTIFICATEHOLDER AND NOTEHOLDER REPORT
EXHIBIT C
FORM OF COLLECTION ACCOUNT CONTROL AGREEMENT
EXHIBIT D
FORM OF RESERVE ACCOUNT CONTROL AGREEMENT