FORM OF SALE AND
SERVICING AGREEMENT
OHS DRAFT
8/26/96
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CHASE MANHATTAN BANK USA, N.A.,
a National Banking Association
as Seller and Servicer
and
CHASE MANHATTAN AUTO OWNER TRUST 199_-_,
as Issuer
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SALE AND SERVICING AGREEMENT
Dated as of __________, 199_
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions..................................... 1
SECTION 1.2. Usage of Terms.................................. 24
[SECTION 1.3. Simple Interest Method; Allocations............. 24]
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. Conveyance of Receivables....................... 25
SECTION 2.2. Closing......................................... 26
ARTICLE III
THE RECEIVABLES
SECTION 3.1. Representations and Warranties of Seller;
Conditions Relating to Receivables.............. 26
SECTION 3.2. Repurchase Upon Breach or Failure of a
Condition....................................... 31
SECTION 3.3. Custody of Receivable Files..................... 31
SECTION 3.4. Duties of Servicer as Custodian................. 32
SECTION 3.5. Instructions; Authority to Act.................. 33
SECTION 3.6. Custodian's Indemnification..................... 33
SECTION 3.7. Effective Period and Termination................ 33
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1. Duties of Servicer.............................. 34
SECTION 4.2. Collection of Receivable Payments;
Refinancing..................................... 35
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Section Page
SECTION 4.3. Realization Upon Receivables.................... 35
SECTION 4.4. [Reserved]...................................... 36
SECTION 4.5. Maintenance of Security Interests in
Financed Vehicles............................... 36
SECTION 4.6. Covenants of Servicer........................... 36
SECTION 4.7. Purchase of Receivables Upon Breach............. 37
SECTION 4.8. Servicing Fee................................... 38
SECTION 4.9. Servicer's Certificate.......................... 38
SECTION 4.10. Annual Statement as to Compliance............... 38
SECTION 4.11. Annual Audit Report............................. 39
SECTION 4.12. Access by Holders to Certain Documentation
and Information Regarding Receivables........... 40
SECTION 4.13. Reports to Holders and the Rating
Agencies........................................ 40
ARTICLE V
TRUST ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1. Establishment of Trust Accounts................. 41
SECTION 5.2. Collections..................................... 43
SECTION 5.3. [Reserved]...................................... 44
SECTION 5.4. Additional Deposits............................. 44
SECTION 5.5. Distributions................................... 44
SECTION 5.6. Net Deposits.................................... 46
SECTION 5.7. Statements to Certificateholders and
Noteholders..................................... 46
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Section Page
ARTICLE VI
THE SELLER
SECTION 6.1. Representations of Seller....................... 48
SECTION 6.2. Liability of Seller; Indemnities................ 50
SECTION 6.3. Merger or Consolidation of Seller............... 51
SECTION 6.4. Limitation on Liability of Seller and
Others.......................................... 51
SECTION 6.5. Seller May Own Notes and Certificates........... 51
ARTICLE VII
THE SERVICER
SECTION 7.1. Representations of Servicer..................... 51
SECTION 7.2. Liability of Servicer; Indemnities.............. 53
SECTION 7.3. Merger or Consolidation of Servicer............. 54
SECTION 7.4. Limitation on Liability of Servicer and
Others.......................................... 54
SECTION 7.5. Servicer Not To Resign.......................... 56
SECTION 7.6. Delegation of Duties............................ 56
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1. Events of Servicing Termination................. 56
SECTION 8.2. Trustee to Act; Appointment of Successor........ 58
SECTION 8.3. Notification to Noteholders and
Certificateholders.............................. 59
SECTION 8.4. Waiver of Past Defaults......................... 59
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ARTICLE IX
TERMINATION
SECTION 9.1. Optional Purchase of All Receivables;
Trust Termination............................... 60
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Amendment....................................... 61
SECTION 10.2. Protection of Title to Owner Trust Estate....... 63
SECTION 10.3. [Reserved]...................................... 65
SECTION 10.4. Governing Law................................... 65
SECTION 10.5. Notices......................................... 65
SECTION 10.6. Severability of Provisions...................... 66
SECTION 10.7. Assignment[; References to Chase USA]........... 66
SECTION 10.8. Certificates and Notes Nonassessable and
Fully Paid...................................... 66
SECTION 10.9. Third-Party Beneficiaries....................... 67
SECTION 10.10. Assignment to Trustee........................... 67
SECTION 10.11. Limitation of Liability of Owner Trustee
and Trustee..................................... 67
SCHEDULES
Schedule A - List of Receivables
Schedule B - Location of Receivable Files
EXHIBITS
Exhibit A - Form of Servicer's Certificate
Exhibit B - Form of Certificateholder Report
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This Sale and Servicing Agreement, dated as of
__________, 199_ (as amended, supplemented or otherwise modified
and in effect from time to time, this "Agreement") is made
between CHASE MANHATTAN BANK USA, N.A., a National Banking
Association ("Chase USA" or the "Seller" and the "Servicer" in
its respective capacities as such), and CHASE MANHATTAN AUTO
OWNER TRUST, 199_-_, 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 APR but not paid by or on behalf of the
Obligor.
"Administration Agreement" means the Administration
Agreement dated as of _______, 199___, among the Issuer, the
Administrator, the Trustee and the Seller, as the same may be
amended and supplemented from time to time.
"Administrator" means _______________, a _____________,
as administrator.
"Administration Fee" with regard to a _________ means
the fee payable to the Administrator 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 the 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 person solely because such other Person has
the contractual right or obligation to manage such Person unless
such other Person controls such Person through equity ownership
or otherwise.
"Aggregate Net Losses" means, with respect to a
Collection Period, the amount equal to (i) the principal balance
of the Receivables that became Defaulted Receivables during such
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.
"Annual Percentage Rate" or "APR" of a Receivable means
the annual rate of interest stated in the Receivable.
"Assertion" has the meaning specified in Section 4.11.
"Authenticating Agent" has the meaning specified in
Section 2.13 of the Indenture and shall initially be the
corporate trust office of The Chase Manhattan Bank, and its
successors and assigns in such capacity.
"Authorized Officer" means any officer of the Owner
Trustee, Trustee or Servicer who is authorized to act on behalf
of the Owner Trustee, Trustee or Servicer, as applicable, and who
is identified as such on the list of authorized officers
delivered by each such party.
"Basic Documents" means the Certificate of Trust, the
Indenture, the Depository Agreements, the Sale and Servicing
Agreement, the Trust Agreement, the Administration Agreement and
other documents and certificates delivered in connection
therewith.
"Benefit Plan" has the meaning specified in Section
11.12 of the Trust Agreement.
"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, 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 Trustee and banks located in New York, New
York and [________________________] are open for the purpose of
conducting a commercial banking business.
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"Business Trust Statute" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code 3801 et seq., as amended
from time to time.
"Capital Accounts" has the meaning specified in
Section 5.7 of the Trust Agreement.
"CEDEL" means Centrale de Livraison de Valeurs
Mobilieres, S.A.
"Certificate" means a certificate evidencing the
beneficial interest of a Certificateholder in the Owner Trust
Estate, substantially in the form of Exhibit A to the Trust
Agreement.
"Certificate Balance" $________ 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 Distribution
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 Distribution Date), over
(ii) the Pool Balance as of the close of business on the last day
of the preceding the Collection Period. Thereafter, the Certificate
Balance shall be increased to the extent that any portion of the
Total Distribution Amount is available to pay the existing
Certificateholders' Principal Carryover Shortfall, but not by
more then 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, the Servicer and The
Depository Trust Company, as the initial Clearing Agency, dated
as of 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.
"Certificate Distribution Account" has the meaning
specified in Section 5.1 of the Trust Agreement.
"Certificate Final Scheduled Distribution Date" means
the ______________ Distribution Date.
"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
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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 Distribution 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, the
interest evidenced by any Certificate registered in the name of
the Seller, the Servicer or any Person controlling, controlled
by, or under common control with, 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; provided, however,
that in determining whether the Owner Trustee shall be protected
in relying upon any such consent, request, waiver or demand, only
Certificates that an Authorized Officer of the Owner Trustee
knows to be so owned shall be so disregarded.
"Certificateholders' Distributable Amount" means with
respect to any Distribution Date, the sum of the
Certificateholders' Principal Distributable Amount and the
Certificateholders' Interest Distributable Amount.
"Certificateholders' Interest Carryover Shortfall"
means, for any Distribution Date, the excess of the
Certificateholders' Interest Distributable Amount for the
preceding Distribution Date, over the amount in respect of the
interest at the Certificate Rate that is actually deposited in
the Certificate Distribution Account on such preceding
Distribution Date, plus interest on such excess, to the extent
permitted by law, at the Certificate Rate from and including such
preceding Distribution Date to but excluding the current
Distribution Date.
"Certificateholders' Interest Distributable Amount"
means, for any Distribution Date, the sum of the
Certificateholders' Monthly Interest Distributable Amount for
such Distribution Date and the Certificateholders' Interest
Carryover Shortfall for such Distribution Date.
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Certificateholders' Monthly Interest Distributable
Amount" means, for any Distribution Date, one month's interest
(or, in the case of the first Distribution Date, interest accrued
from and including the Closing Date to but exceeding such
Distribution Date) at the Certificate Rate on the Certificate
Balance on the immediately preceding Distribution Date, after
giving effect to all payments of principal to the
Certificateholders on or prior to such Distribution Date (or, in
the case of the first Distribution Date, the Certificate Balance
on the Closing Date.) Interest shall be computed on the basis of
a 360-year of twelve 30-day months for purposes of this
definition.
"Certificateholders' Monthly Principal Distributable
Amount" means, for any Distribution Date prior to the
Distribution Date on which the Outstanding Amount of the Notes is
reduced to zero, zero; and for any Distribution Date commencing on or
after the Distribution Date on which the Outstanding Amount of
the Notes is reduced to zero, 100% of the Principal Distribution
Amount (less any amount required on the first such Distribution
Date to reduce the outstanding principal balance of the Class A-2
Notes to zero, which shall be deposited into the Note
Distribution Account).
"Certificateholders' Principal Carryover Shortfall"
means, as of the close of any Distribution Date, the excess of
(i) the Certificateholders' Principal Distributable Amount, over
(ii) the amount in respect of principal that is actually
deposited in the Certificate Distribution Account on such current
Distribution Date.
"Certificateholders' Principal Distributable Amount"
means, for any Distribution Date, the sum of (i) the
Certificateholder's Monthly Principal Distributable Amount for
such Distribution Date and the Certificateholders' Principal
Carryover Shortfall as of the close of the preceding Distribution
Date; provided that the Certificateholders' Principal
Distributable Amount shall not exceed the Certificate Balance.
In addition, on the Certificate Final Scheduled Distribution
Date, the principal required to be distributed to
Certificateholders will include the lesser of (a) any payments of
principal due and remaining unpaid on each Receivable owned by
Issuer as of the last day of the immediately preceding the 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 Distribution 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. [In addition, on any Distribution Date on
which, after giving effect to all distributions to [Servicer,
Administrator,] the Noteholders and the Certificateholders on
such Distribution Date, (i) the outstanding principal balance of
the Notes is zero and (ii) the amount on deposit in the Reserve
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Account is equal to or greater than the Certificate Balance, the
Certificateholders' Principal Distributable Amount shall include
an amount equal to such Certificate Balance.]
"Chase Connecticut Loan" means a motor vehicle retail
installment sales contract or purchase money loan serviced by
Chase USA and either originated by The Chase Manhattan Bank of
Connecticut, National Association or originated pursuant to the
agreements with automobile dealers who regularly originated and
sold such contracts and loans to The Chase Manhattan Bank of
Connecticut, National Association.
"Chase Florida Loan" means a motor vehicle retail
installment sales contract or purchase money loan serviced by
Chase USA and either originated by The Chase Manhattan Private
Bank of Florida, National Association or originated pursuant to
the agreements with automobile dealers who regularly originated
and sold such contracts and loans to The Chase Manhattan Private
Bank of Florida, National Association.
"Chase Lincoln Loan" means a motor vehicle retail
installment sales contract or purchase money loan serviced by
Chase USA and either originated by Chase Lincoln First Bank,
National Association or originated pursuant to the agreements
with automobile dealers who regularly originated and sold such
contracts and loans to Chase Lincoln First Bank, National
Association.
"Chase Maryland Loan" means a motor vehicle retail
installment sales contract or purchase money loan serviced by
Chase USA and either originated by The Chase Manhattan Bank of
Maryland or originated pursuant to the agreements with automobile
dealers who regularly originated and sold such contracts and
loans to The Chase Manhattan Bank of Maryland.
"Chase USA Delaware" means Chase Manhattan Bank USA,
N.A., a national banking association having its principal
executive offices located at 802 Delaware Avenue, Wilmington,
Delaware 19801 and shall not mean the Seller or the Servicer
unless Chase USA Delaware succeeds to the interests of Chase USA
hereunder in connection with the Proposed Merger or otherwise.
"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 D 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 E to the Indenture.
"Closing Date" means ___________, 199__.
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"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. 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).
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collected Interest" means, with respect to a
Collection Period, the portion of all payments by or on behalf of
Obligors received by the Servicer during such Collection Period
allocable to interest (other than with respect to Repurchased
Receivables or Defaulted Receivables), including any proceeds of
the sale or other disposition by the Servicer of a Financed
Vehicle prior to the related Receivable becoming a Defaulted
Receivable.
"Collected Principal" means, with respect to a
Collection Period, the portion of all payments by or on behalf of
Obligors received by the Servicer during such Collection Period
allocable to principal (other than with respect to Repurchased
Receivables or Defaulted Receivables), including any proceeds of
the sale or other disposition by the Servicer of a Financed
Vehicle prior to the related Receivable becoming a Defaulted
Receivable.
"Collection Account" has the meaning specified in
Section 5.1(a)(i).
"Collection Period" means each calendar month beginning
__________, 199_ until the Trust shall terminate pursuant to
Article IX of the Trust Account.
"Collections" means all collections in respect of
Receivables.
"Corporate Trust Office" shall mean the [New York
office] of the Trustee or Owner Trustee, as applicable.
"Cutoff Date" means __________, 199__.
"Dealer" means the dealer which sold a Financed Vehicle
and which originated or assisted in the origination of the
Receivable relating to such Financed Vehicle under a Dealer
Agreement.
"Dealer Agreement" means any agreement and, if
applicable, assignment under which the Receivables were
7
originated by or through a Dealer and sold to the Seller or an
affiliate of the Seller.
"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 such loss recognition cannot be later than the
calendar month in which more than 10% of the scheduled payment
becomes 240 days delinquent.
"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 Distribution
Date, the sum of the outstanding principal balances of all
Receivables which were 60 days or more delinquent (including
Receivables, which are not Defaulted Receivables, relating to
Financed Vehicles that have been repossessed), as of the end of
the Collection Period immediately preceding such Distribution
Date, determined in accordance with the Servicer's normal
practices, such sum expressed as a percentage of the Pool Balance
as of the close of business on the last day of such Collection
Period.
"Delivery" when used with respect to Trust Account
Property means:
(a) with respect to bankers' acceptances,
commercial paper, negotiable certificates of deposit
and other obligations that constitute "instruments"
within the meaning of Section 9-105(l)(i) of the
Relevant UCC and which are susceptible of physical
delivery, transfer thereof to the Trustee or its
nominee or custodian endorsed to, or registered in the
name of, the Trustee or its nominee or custodian or
endorsed in blank, and, with respect to a certificated
security (as defined in Section 8-102 of the UCC)
transfer thereof (i) by delivery of such certificated
security endorsed to, or registered in the name of, the
Trustee or its nominee or custodian or endorsed in
blank to a financial intermediary (as defined in
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Section 8-313 of the UCC) and the making by such
financial intermediary of entries on its books and
records identifying such certificated securities as
belonging to the Trustee or its nominee or custodian
and the sending by such financial intermediary of a
confirmation of the purchase of such certificated
security by the Trustee or its nominee or custodian, or
(ii) by delivery thereof to a "clearing corporation"
(as defined in Section 8-102(3) of the UCC) and the
making by such clearing corporation of appropriate
entries on its books reducing the appropriate
securities account of the transferor and increasing the
appropriate securities account of a financial
intermediary by the amount of such certificate
security, the identification by the clearing
corporation of the certificated securities for the sole
and exclusive account of the financial intermediary,
the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined
in Section 8-102(4) of the UCC) or the nominee of
either subject to the clearing corporation's exclusive
control, the sending of a confirmation by the financial
intermediary of the purchase by the Trustee or its
nominee or custodian of such securities and the making
by such financial intermediary of entries on its books
and records identifying such certificated securities as
belonging to the Trustee or its nominee or custodian
(all of the foregoing, "Physical Property"), and, in
any event, any such Physical Property in registered
form shall be in the name of the Trustee or its nominee
or custodian; and such additional or alternative
procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such
Trust Account Property to the Trustee or its nominee or
custodian, consistent with changes in applicable law or
regulations or the interpretation thereof;
(b) with respect to any securities issued by the
U.S. Treasury, the Federal Home Loan Mortgage
Corporation or by the Federal National Mortgage
Association that is a book-entry security held through
the Federal Reserve System pursuant to Federal book-
entry regulations, the following procedures, all in
accordance with applicable law, including applicable
Federal regulations and Articles 8 and 9 of the UCC:
book-entry registration of such Trust Account Property
to an appropriate book entry account maintained with a
Federal Reserve Bank by a financial intermediary which
is also a "depository" pursuant to applicable Federal
regulations and issuance by such financial intermediary
of a deposit advice or other written confirmation of
such book-entry registration to the Trustee or its
nominee or custodian of the purchase by the Trustee or
its nominee or custodian of such book-entry securities;
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the making by such financial intermediary of entries in
its books and records identifying such book-entry
security held through the Federal Reserve System
pursuant to Federal book-entry regulations as belonging
to the Trustee or its nominee or custodian and
indicating that such custodian holds such Trust Account
Property solely as agent for the Trustee or its nominee
or custodian; and such additional or alternative
procedures as may hereafter become appropriate to
effect complete transfer of ownership of any such Trust
Account Property to the Trustee or its nominee or
custodian, consistent with changes in applicable law or
regulations or the interpretation thereof; and
(c) with respect to any item of Trust Account
Property that is an uncertificated security under
Article 8 of the UCC and that is not governed by clause
(b) above, registration on the books and records of the
issuer thereof in the name of the financial
intermediary, the sending of a confirmation by the
financial intermediary of the purchase by the Trustee
or its nominee or custodian of such uncertificated
security, the making by such financial intermediary of
entries on its books and records identifying such
uncertificated certificates as belonging to the Trustee
or its nominee or custodian.
"Deposit Date" means the Business Day immediately
preceding each Distribution Date.
"Depositor" means the Seller in its capacity as
Depositor under the Trust Agreement.
"Depository Agreements" mean, collectively, the
Certificate Depository Agreement and the Note Depository
Agreement.
"Determination Date" means the 10th calendar day of the
month (or, if such 10th calendar day is not a Business Day, the
Business Day preceding the 10th calendar day of the month)
immediately succeeding the related Collection Period.
"Distribution Date" means, in the case of the first
Collection Period, ________, 199_, and in the case of every
Collection Period thereafter, the 15th day of the following
month, or if the 15th day is not a Business Day, the next
following Business Day, commencing with the first Distribution
Date.
"Eligible Deposit Account" means (a) a segregated
identifiable trust account established in the trust department of
a Qualified Trust Institution, which shall initially be The Chase
Manhattan Bank, and may be maintained with The Chase Manhattan
Bank so long as the Seller is a Qualified Trust Institution; or
10
(b) a separately identifiable deposit account established in the
deposit taking department of a Qualified Institution, which may
be the Seller so long as The Chase Manhattan Bank is a Qualified
Institution.
"ERISA" has the meaning specified in Section 11.12
of the Trust Agreement.
"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 Morgan Guaranty Trust
Company of New York, Brussels, Belgium office, in its capacity as
the operator of the Euroclear system.
"Event of Default" means an event specified in Section
5.1 of the Indenture.
"Events 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 Distribution Date" means for (a) the
Class A-1 Notes, the ____________ Distribution Date, and (b) the
Class A-2 Notes, the ____________ Distribution Date.
"Final Scheduled Maturity Date" means the last day of
the Collection Period immediately preceding the Certificate Final
Scheduled Distribution 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.
"FNMA" means the Federal National Mortgage Association
or any successor thereto.
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"Foreign Clearing Agency" means CEDEL and the Euroclear
Operator.
"General Partner" means _____________________ as
general partner under the Trust Agreement.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and
grant a lien upon and a security interest in and right of set-off
against, deposit, set over and confirm pursuant to 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 _________,
199_, between the Issuer and the Trustee, as the same may be
amended and supplemented from time to time.
"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.
"Independent Certificate" means a certificate or
opinion to be delivered to the 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 Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer
has read the definition of "Independent" in the Indenture and
that the signer is Independent within the meaning thereof.
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"Insolvency Event" means, for a specified Person, (a)
the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person or any
substantial part of its property in an involuntary case under any
applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver
(including any receiver appointed under the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as
amended), liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part
of its property, or ordering the winding-up or liquidation of
such Person's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(b) the commencement by such Person of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by such
Person to the entry of an order for relief in an involuntary case
under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official
for such Person or for any substantial part of its property, or
the making of such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to
pay its debts as such debts become due, or the taking of action
by such Person in furtherance of any of the foregoing.
"Investment Earnings" means, with respect to any
Distribution Date, the investment earnings (net of losses and
investment expenses) on amounts on deposit in the Trust Account.
"Issuer" means Chase Manhattan Auto Trust 199_-_ 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 Trustee.
"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 to a Receivable by operation of
law.
"Liquidation Proceeds" means, with respect to any
Receivable, (i) insurance proceeds, (ii) the monies collected
during a Collection Period from whatever source on a Defaulted
Receivable and (iii) proceeds of a Financed Vehicle sold after
repossession, in each case net of any liquidation expenses and
payments required by law to be remitted to the Obligor.
"Moody's" means Moody's Investors Service, Inc., and
its successors and assigns.
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"Note" means a Class A-1 Note or a Class A-2 Note.
"Note Depository Agreement" means the agreement among
the Issuer, the Servicer, the Trustee and The Depository Trust
Company, as the initial Clearing Agency, dated as of the Closing
Date, relating to the Notes, as the same may be amended or
supplemented from time to time.
"Note Distribution Account" means the account
designated as such, established and maintained pursuant to
Section 5.1.
"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 Distribution Date means an eight-digit
decimal figure equal to the outstanding principal balance of such
class of Notes divided by the original outstanding principal
balance 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 principal
balance 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
Distribution Date, the sum of the Noteholders' Principal
Distributable Amount and the Noteholders' Interest Distributable
Amount.
"Noteholders' Interest Carryover Shortfall" means, for
any Distribution Date, the excess of (x) the Noteholders'
Interest Distributable Amount for the preceding Distribution
Date, over (y) the amount in respect of interest that is actually
deposited in the Note Distribution Account on such preceding
Distribution Date, plus interest on the amount of interest due
but not paid to Noteholders of each class on the preceding
Distribution Date, to the extent permitted by law, at the
applicable Interest Rate from such preceding Distribution Date
through the current Distribution Date.
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"Noteholders' Interest Distributable Amount" means, for
any Distribution Date, the sum of (x) the Noteholders' Monthly
Interest Distributable Amount for such Distribution Date and
(y) the Noteholders' Interest Carryover Shortfall for such
Distribution Date.
"Noteholders' Monthly Interest Distributable Amount"
means, for any Distribution Date, in the case of each class of
Notes, one month's interest (or, in the case of the first
Distribution Date, interest accrued from and including the
Closing Date to but excluding such Distribution Date) at the
applicable Interest Rate on the outstanding principal balance of
the Notes of such class on such Distribution Date (or, in the
case of the first Distribution Date, on the Closing Date).
Interest for purposes of this definition shall be computed on the
basis of a 360-day year of twelve 30-day months.
"Noteholders' Monthly Principal Distributable Amount"
means, for any Distribution Date, the Principal Distribution
Amount.
"Noteholders' Principal Carryover Shortfall" means, as
of the close of business on any Distribution Date, the excess of
(x) the Noteholders' Principal Distributable Amount over (y) the
amount in respect of principal that is actually deposited in the
Note Distribution Account.
"Noteholders' Principal Distributable Amount" means,
for any Distribution Date, the sum of (i) the Noteholder's
Monthly Principal Distributable Amount for such Distribution Date
and (ii) the Noteholders' Principal Carryover Shortfall as of the
close of business on the preceding Distribution Date; provided
that the Noteholders' Principal Distributable Amount shall not
exceed the outstanding principal balance of the Notes. In
addition, on the Final Scheduled Distribution 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 Distribution Date and allocable to
principal) to reduce the Outstanding Amount of such class of
Notes to zero.
"Note Register" and "Note Registrar" have the meanings
specified in 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
15
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 Trustee, meeting the
requirements of Section 11.1 of the Indenture.
"Optional Purchase Percentage" shall be 5%.
"Original Pool Balance" shall be $________________.
"Outstanding" means, as of the date of determination,
all Notes theretofore authenticated and delivered under the
Indenture except:
(a) Notes therefore 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 Trustee or any Paying
Agent in trust for the Holders of such Notes (provided
that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to the
Indenture or provision therefor, satisfactory to the
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 Trustee is presented that any such Notes are held
by a bona fide purchaser;
provided that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or
under any Basic Document, Notes owned by the Issuer, any other
obligor upon the Notes, the 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 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 Trustee either actually knows
to be so owned or has received written notice thereof 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 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.
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"Outstanding Amount" means, as of any date of
determination, the aggregate principal amount of all Notes, or
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, 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 Delaware 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 Trustee or any other
Person that meets the eligibility standards for the Trustee
specified in Section 6.11 of the Indenture and is authorized by
the Issuer 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.
"Permitted Investments" means, at any time, any one or
more of the following obligations and securities:
(i) obligations of the United States of America
or any agency thereof, provided such obligations are
backed by the full faith and credit of the United
States of America;
(ii) general obligations of or obligations
guaranteed as to the timely payment of interest and
principal by any state of the United States of America
or the District of Columbia then rated A-l+ or AAA by
Standard & Poor's and P-1 or Aaa by Moody's or, in
either case, such lower rating (as confirmed in writing
by a Rating Agency) as will not result in the
qualification, downgrading or withdrawal of the rating
then assigned to the Notes and the Certificates by such
Rating Agency;
(iii) commercial paper which is then rated P-1 by
Moody's and A-l+ by Standard & Poor's or, in either
case, such lower rating (as confirmed in writing by a
Rating Agency) as will not result in the qualification,
downgrading or withdrawal of the ratings then assigned
17
to the Notes and the Certificates by such Rating
Agency;
(iv) certificates of deposit, demand or time
deposits, federal funds or banker's acceptances issued
by any depository institution or trust company
(including the Trustee acting in its commercial banking
capacity) 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 and A-l+ by
Standard & Poor's or, in either case, such lower rating
(as confirmed in writing by a Rating Agency) as will
not result in the qualification, downgrading or
withdrawal of the rating then assigned to the Notes and
the Certificates by such Rating Agency;
(v) demand or time deposits of, or certificates
of deposit issued by, any bank, trust company, savings
bank or other savings institution and 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 (A)
the short term unsecured debt or deposits of which are
rated P-1 by Moody's and A-l+ by Standard & Poor's or
the long-term unsecured debt of which are rated Aaa by
Moody's and AAA by Standard & Poor's or (B) in the case
of either Rating Agency, are otherwise confirmed in
writing by such Rating Agency as investments as will
not result in the qualification, downgrading or
withdrawal of the rating then assigned to the Notes and
the Certificates by such Rating Agency;
(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 and Aaa by Moody's; and
18
(ix) such other investments where either (A) the
short-term unsecured debt or deposits of the obligor on
such investments are rated A-l+ by Standard & Poor's
and P-1 by Moody's or (B) such investments are
confirmed by a Rating Agency (in writing) or
investments as will not result in the qualification,
downgrading or withdrawal of the rating then assigned
to the Notes and the Certificates by such Rating
Agency.
Permitted Investments include money market mutual funds
(so long as such fund has the ratings specified in clause (viii)
hereof), including, without limitation, the VISTA U.S. Government
Money Market Fund or any other fund for which The Chase Manhattan
Bank, an affiliate of the Seller, [Trustee], [Owner Trustee] or
an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or
subcustodian, notwithstanding that (i) The Chase Manhattan Bank,
[Trustee], [Owner Trustee] or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered,
(ii) The Chase Manhattan Bank, [Trustee], [Owner Trustee] 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 Trust, the Owner Trustee and the
Trustee specifically authorize The Chase Manhattan Bank,
[Trustee], [Owner Trustee] 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 The Chase Manhattan Bank,
[Trustee] or [Owner Trustee], as applicable, may charge and
collect for services rendered pursuant to this Agreement and the
Basic Documents.
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, trust, unincorporated
organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Physical Property" has the meaning specified in the
definition of "Delivery" above.
"Pool Balance" as of any date of determination means
the aggregate Principal Balance of the Receivables, calculated as
of the close of business on such date.
"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
19
evidence the same debt as the mutilated, lost, destroyed or
stolen Note.
"Principal Balance" of a Receivable, as of any date of
determination, means the Amount Financed minus that portion of
all payments received on or prior to such date allocable to
principal. The Principal Balance of a Defaulted Receivable or a
Repurchased Receivable shall be deemed to be zero, in each case,
as of such date.
"Principal Distribution Amount" means, for any
Distribution Date, the sum of the following amounts with respect
to the preceding Collection Period: (a) that portion of all
Collections received during such Collection Period and allocable
to principal in accordance with Servicer's customary servicing
procedures; (b) to the extent attributable to principal, the
Purchase Amount received with respect to each Receivable
repurchased by Seller or purchased by Servicer under an
obligation which arose during the related Collection Period; and
(c) the Principal Balance of each Receivable that became a
Defaulted Receivable during such Collection Period.
"Proceeding" means any suit in equity, action or law or
other judicial or administrative proceeding.
"Proposed Merger" means, as of the Closing Date, the
proposed merger of Chase USA into Chase USA Delaware, a Delaware banking
corporation.
"Qualified Institution" means a depository institution
organized under the laws of the United States of America or any
one of the states thereof or incorporated under the laws of a
foreign jurisdiction with a branch or agency located in the
United States of America or one of the States 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
one of the states thereof or incorporated under the laws of a
foreign jurisdiction with a branch or agency located in the
United States of America or one of the States 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 and "Baa3" by Moody's.
"Rating Agency" means any of Standard & Poor's [and]
Moody's or [___________________].
20
"Rating Agency Condition" means, with respect to any
action, that each Rating Agency shall have notified the Seller,
the Servicer, the Trustee and the Owner Trustee in writing, that
such action will not result in reduction or withdrawal of 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 and security agreement executed
by an Obligor in respect of a Financed Vehicle, and all proceeds
thereof and payments thereunder (other than interest accrued and
unpaid as of the Cutoff Date), which Receivable shall be
identified on Schedule A to this Agreement.
"Receivable Files" means the documents specified in
Section 3.3.
"Receivables Pool" means the pool of Receivables
included in the Trust.
"Record Date" means, with respect to any Distribution
Date, the Business Day prior to such Distribution Date unless
Definitive Notes or Definitive Certificates are issued, in which
case Record Date shall mean the last day of the immediately
preceding calendar month.
"Redemption Date" means in the case of a redemption of
the Notes pursuant to Section 10.1(a) of the Indenture or a
payment to Noteholders pursuant to Section 10.1(b) of the
Indenture, the Distribution Date specified by the Servicer or the
Issuer pursuant to such Section 10.1(a) or (b), as applicable.
"Redemption Price" means (a) in the case of a
redemption of the Notes pursuant to Section 10.1(a) of the
Indenture, an amount equal to the Outstanding Amount of the Notes
plus accrued and unpaid interest thereon to but excluding the
Redemption Date, or (b) in the case of payment made to
Noteholders pursuant to Section 10.1(b) of the Indenture, the
amount on deposit in the Note Distribution Account, but not in
excess of the amount set forth in clause (a).
"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 Period on
which such Receivable becomes such, of the Principal Balance
thereof plus the Accrued Interest thereon; of a Defaulted
Receivable means the sum, as of the last day of the Collection
Period on which such Receivable is to be purchased, of the
principal balance thereof plus the Accrued Interest thereon (the
accrued interest for the Collection Period in which such
Receivable became a Defaulted Receivable to be calculated at a
21
rate equal to one-twelfth of the sum of the Certificate Rate and
the Servicing Fee Rate.
"Repurchased Receivable" means a Receivable repurchased
by the Seller pursuant to Section 3.2 or purchased by the
Servicer pursuant to Section 4.7.
"Required Deposit Rating" shall be a short-term
certificate of deposit rating from Moody's of P-1 and from S&P of
A-l+, and a long-term unsecured debt rating of not less than AA
by Standard & Poor's and Aa3 by Moody's.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.1.
"Reserve Account Deposit" means an amount equal to
$__________.
"Reserve Account Transfer Amount" means, for any
Distribution 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 Distribution Date (before giving
effect to any withdrawals therefrom relating to such Distribution
Date) or (b) the amount, if any, by which (i) the sum of the
amounts set forth in clauses (i) through (vi) of Section 5.5(c),
inclusive, exceeds (ii) the amount on deposit in the Collection
Account on such Distribution Date.
"Responsible Officer" means, with respect to the
Trustee, any officer within the Corporate Trust Office of the
Trustee, including any Vice President, Assistant Vice President,
Assistant Treasurer, Assistant Secretary, or any other officer of
the 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).
"Securities Act" means the Securities Act of 1933, as
amended.
"Seller" means Chase Manhattan Bank USA, N.A. in its
capacity as the seller of the Receivables under this Agreement,
and each successor to Chase Manhattan Bank USA, N.A. (in the same
capacity) pursuant to Section 6.3.
"Servicer" means Chase Manhattan Bank USA, N.A. in its
capacity as the servicer of the Receivables under this Agreement,
and each successor to Chase Manhattan Bank USA, N.A. (in the same
capacity) pursuant to Section 7.3.
"Servicer'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 4.9.
"Servicing Fee" with regard to a Collection Period
means the fee payable to the Servicer for services rendered
during such Collection Period, determined pursuant to Section
4.8.
22
"Servicing Fee Rate" means [ ]% per annum.
"Specified Reserve Account Balance" means, with respect
to any Distribution Date, the greater of (a) ___% of the Pool
Balance as of the close of business on the last day of the
preceding Collection Period and (b) ____%; provided, however,
that the amount in clause (a) with respect to a Distribution Date
shall be equal to the amount calculated for such clause (a) for
the Distribution Date immediately preceding such Distribution
Date if any of the following events occur: (i) the Aggregate
Net Losses realized from the Cut-off Date through the end of the
Collection Period preceding such Distribution Date exceeds the
amount equal to ____% of the Initial Pool Balance; (ii) the sum
of (x) 12 times the Aggregate Net Losses realized during the
Collection Period immediately preceding such Distribution Date
plus (y) the aggregate Principal Balance as of the last day of
the Collection Period immediately preceding such Distribution
Date of all Receivables which have not yet been liquidated as to
which the Financed Vehicles securing such Receivables has been
repossessed exceeds the amount equal to ____% of the Pool Balance
at the beginning of such Collection Period; or (iii) the
aggregate amount of scheduled payments that are delinquent by
more than 60 days as of the end of the Collection Period
immediately preceding such Distribution Date exceeds an amount
equal to ____% of the Pool Balance as of the end of such
Collection Period; provided, further, that the Specified Reserve
Account Balance shall not exceed the sum of the outstanding
aggregate principal amount of the Notes and the Certificate
Balance, and that upon payment of all the interest and principal
due on the Notes and the Certificates, the Specified Reserve
Account Balance will be zero.
"Standard & Poor's" means Standard & Poor's Ratings
Services, and its successors and assigns.
"Total Distribution Amount" means, for any Distribution
Date, the sum of the aggregate collections (including any
Liquidation Proceeds, any Purchase Amounts paid by the Seller and
the Servicer and any amounts received from Dealers with respect
to Receivables) received in respect of the Receivables during the
related Collection Period and, under certain circumstances,
Investment Earnings on the Trust Accounts during such Collection
Period. The Total Distribution Amount on any Distribution Date
shall exclude all payments and proceeds (including any
Liquidation Proceeds and any amounts received from Dealers with
respect to Receivables) of (i) any Receivables the Purchase
Amount of which has been included in the Total Distribution
Amount in a prior Collection Period, (ii) any Defaulted
Receivable after and to the extent of the reassignment of such
Defaulted Receivable by the Trust to the Seller and (iii) any
Late Fees.
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"Trust Account Property" means the Trust Accounts and
all amounts and investments held from time to time in any Trust
Account (whether in the form of deposit accounts, Physical
Property, book-entry securities, uncertificated securities or
otherwise), including the Reserve Account Deposit and all
proceeds of the foregoing.
"Trust Accounts" has the meaning specified in
Section 5.1.
"Trust Agreement" means the Trust Agreement dated as of
______________, 199_, between Seller and 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
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.
"Trustee" means, initially, [__________], as Trustee
under the Indenture, or any successor Trustee under the
Indenture.
SECTION 1.2. Usage of Terms. With respect to all
terms in this Agreement, the singular includes the plural and the
plural the singular; words importing any gender include the other
gender; references to "writing" include printing, typing,
lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein
entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their
permitted successors and assigns; and the term "including" means
"including without limitation."
[SECTION 1.3. Simple Interest Method; Allocations.
All allocations of payments to principal and interest and
determinations of periodic charges and the like on the
Receivables shall be based on a year with the actual number of
days in such year and twelve months with the actual number of
days in each such month. Each payment on a Receivable shall be
applied first to the amount of interest accrued on such
Receivable to the date of receipt, then to reduce the scheduled
principal amount outstanding on the Receivable to the extent of
the remaining scheduled payment and then to any outstanding fees
and Late Fees under the terms of the Receivable. Amounts paid by
the Seller or the Servicer in respect of Repurchased Receivables
shall be allocated first to any Accrued Interest and then to the
Principal Balance of the related Receivable.]
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ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. Conveyance of Receivables. In
consideration of the Issuer's delivery to and upon the order of
the Seller of the Notes and the Certificates, 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 Schedule A
hereto, all proceeds thereof and all amounts and monies
due [or received] thereon on and after the Cutoff Date
(including proceeds of the repurchase of Receivables by
the Seller pursuant to Section 3.2 or the purchase of
Receivables by the Servicer pursuant to Section 4.7),
together with the interest of the Seller in the
security interests in the Financed Vehicles granted by
the Obligors pursuant to the Receivables and in any
repossessed Financed Vehicles;
(ii) all right, title and interest of the Seller
in any Liquidation Proceeds and in any proceeds of any
extended warranties, theft and physical damage, credit
life or credit disability policies relating to the
Financed Vehicles or the Obligors;
(iii) all right, title and interest of the Seller
in any proceeds from Dealer repurchase obligations
relating to the Receivables; 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 Trust.
It is the intention of the Seller and the Issuer that
the assignment and transfer herein contemplated constitute a sale
of the Receivables, conveying good title thereto free and clear
of any liens and encumbrances, from the Seller to the Trust and
the Receivables not be part of the Seller's estate in the event
of an insolvency. In the event that such conveyance is deemed to
be a pledge to secure a loan, the Seller hereby grants to the
Issuer a first priority perfected security interest in all of the
25
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 [_______________] 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 and the Certificates, the ownership of
each Receivable and the contents of the related Receivable File is
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
Trustee pursuant to the Indenture.
(i) Schedule of Receivables. The information
set forth in Schedule A hereto with respect to each
Receivable is true and correct in all material
respects, and no selection procedures materially
adverse to the 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
26
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 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.
(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 Trustee
pursuant to the Indenture.
(i) Acquisition. Each Receivable has been
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
conveyed hereby has a remaining maturity, as of the Cutoff
Date, of not less than __ months nor greater than __ months,
and (i) with respect to Receivables secured by new Financed
Vehicles, an original maturity of at least __ months and not
more than __ months and (ii) with respect to Receivables
secured by used Financed Vehicles, an original maturity of
at least __ months and not more than __ months;
(iv) Annual Percentage Rate. Each Receivable is
a fully-amortizing fixed rate simple interest [or actuarial
method] contract that provides for level scheduled monthly
payments over its remaining term, and has an Annual
Percentage Rate equal to or greater than __% and equal to or
less than __% and is not secured by any interest in real
estate;
(v) No Repossessions. Each Receivable is
secured by a Financed Vehicle that, as of the Cutoff Date, has 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 has not been identified on the computer files of
the Seller as in bankruptcy proceedings as of the Cutoff
Date;
(vii) No Overdue Payments. Each Receivable has no
payment that is more than 30 days past due as of the Cutoff
Date;
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(viii) Advance Payments. Each Receivable has not
been paid more than three months in advance as of the Cutoff
Date;
(ix) Remaining Principal Balance. Each
Receivable had a remaining principal balance, as of the Cutoff Date, of
at least $________ and not greater than $________;
(x) No Force Placed Insurance. As of the Cutoff
Date, each Receivable is secured by a Financed Vehicle that
was not insured by a force placed insurance policy or any
vendor's single interest and non-filing insurance policy.
(xi) Receivable Files. The Receivable Files
shall be kept at one or more of the locations specified in
Schedule B hereto.
(xii) Characteristics of Receivables. Each
Receivable (a) has been originated in the form of a credit
sales transaction by a Dealer or a purchase money loan
through a Dealer located in one of the States of the United
States (including the District of Columbia) for the retail
financing of a Financed Vehicle, has been fully and properly
executed by the parties thereto and, if a retail installment
sales contract, has been purchased by the Seller from such
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; (b) 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 (c)
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] [actuarial] method.
(xiii) Compliance with Laws. Each Receivable and
each sale of the related Financed Vehicle complied at the
time it was originated or made, and complies 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 Magnuson-Moss 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.
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(xiv) Binding Obligation. Each Receivable
constitutes the legal, valid, and binding payment obligation
in writing of the Obligor, enforceable by the holder thereof
in all material respects in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization, liquidation and other similar
laws and equitable principles relating to or affecting the
enforcement of creditors' rights.
(xv) No Government Obligor. Each Receivable is
not due from the United States of America or any state or
from any agency, department, instrumentality or political
subdivision of the United States of America or any state or
local municipality, and each Receivable is not due from a
business except to the extent that such Receivable has a
personal guaranty.
(xvi) Security Interest in Financed Vehicle.
Immediately prior to the sale and assignment thereof to the
Issuer as herein contemplated, each Receivable was secured
by a validly perfected first priority security interest in
the 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 to
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 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).
(xvii) Receivables in Force. No Receivable has
been satisfied, subordinated, or rescinded, nor has any Financed
Vehicle been released from the Lien granted by the related
Receivable, in whole or in part.
(xviii) No Waiver. No provision of a Receivable has
been waived in such a manner that such Receivable fails
either to meet all of the representations and warranties
made by the Seller herein with respect thereto or to meet
all of the conditions with respect thereto pursuant to this
Section 3.1(b).
(xix) No Amendments. No Receivable has been
amended except pursuant to either instruments included in
the Receivable Files or instruments to be included in the
Receivables Files pursuant to Section 4.2 (or otherwise
29
maintained by the Seller in the ordinary course of its
business), and no such amendment has caused such Receivable
either to fail to meet all of the representations and
warranties made by the Seller herein with respect thereto or
to fail to meet all of the conditions with respect thereto
pursuant to this Section 3.1(b).
(xx) No Defenses. As of the Cutoff Date, the
Seller has no knowledge either of any facts which would give
rise to any right of rescission, setoff, counterclaim, or
defense, or of the same being asserted or threatened, with
respect to any Receivable.
(xxi) No Liens. As of the Cutoff Date, the Seller
has 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.
(xxii) No Default. Except for payment defaults
continuing for a period of not more than 30 days as of the
Cutoff Date, the Seller has no knowledge that a default,
breach, violation, or event permitting acceleration under
the terms of any Receivable exists; the Seller has no
knowledge that a continuing condition that with notice or
lapse of time would constitute a default, breach, violation,
or event permitting acceleration under the terms of any
Receivable exists; and the Seller has not waived any of the
foregoing.
(xxiii) Insurance. Each Receivable requires that
the Obligor thereunder obtain theft and physical damage
insurance covering the Financed Vehicle.
(xxiv) Lawful Assignment. No Receivable has been
originated in, or is subject to the laws of, any
jurisdiction under which the sale, transfer, and assignment
of such Receivable under this Agreement or pursuant to
transfers of the Certificates or the Notes is unlawful, void
or voidable.
(xxv) All Filings Made. No filings (other than
filings under the Relevant UCC which have been made) or
other actions are necessary in any jurisdiction to give the
Issuer a first perfected security interest in the
Receivables.
(xxvi) One Original. There is no more than one
original executed copy of each Receivable which, immediately
prior to the delivery thereof to the Servicer, (as custodian
for the Issuer) was in the possession of the Seller.
30
(xxvii) Excluded Loans. Each Receivable is not a
Chase Connecticut Loan, Chase Florida Loan, Chase Lincoln
Loan, Chase Maryland Loan [or a Receivable originated by or
through a Dealer located in the State of [ ]], and
has not been the subject of a previous securitization.
(xxviii) Account Number. Each Receivable has
been assigned an account number that corresponds to the number
assigned to the Dealer from or through whom such Receivable
was acquired.
SECTION 3.2. Repurchase Upon Breach or Failure of a
Condition. The Seller, the Servicer, the 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 Trustee or the Owner Trustee of either
any breach of the Seller's representations and warranties set
forth in Section 3.1(a) or the failure of any Receivable to
satisfy any of the conditions set forth in Section 3.1(b) which
materially and adversely affects the 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. [Notwithstanding anything herein to the contrary, with
respect to the breach of a representation or warranty in
Section 3.1(b)(xxviii), the Seller shall repurchase such Receivable
regardless of its effect on the interest of the Holders or whether
notice thereof has been delivered by any of the parties thereto,
and repurchase of any such Receivable shall take place at any time
as is administratively convenient for the Seller and the Servicer.]
In consideration of the repurchase of a Receivable, the
Seller shall remit the Repurchase Amount of such Receivable
as of such last day (less any Liquidation Proceeds deposited, or
to be deposited, by the Servicer in the Collection Account with
respect to such Receivable pursuant to Section 4.3) in the manner
specified in Section 5.4. The sole remedy of the Issuer, the
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 solely
dependent upon the actual knowledge of the Seller of any breached
representation or warranty. 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 "Receivables
Files") which are hereby constructively delivered to the Issuer
with respect to each Receivable:
31
(i) The original executed Receivable;
(ii) The original credit application or, if no
such original exists, a copy thereof; and
(iii) Any and all other documents or records that
the Seller or Servicer, as the case may be, shall keep
on file, in accordance with its customary procedures,
relating to a Receivable, an Obligor, or a Financed
Vehicle.
The Servicer hereby agrees to act as custodian and as
agent for the 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 or others. The Servicer shall conduct, or
cause to be conducted, periodic audits of the files of all
receivables owned or serviced by the Servicer which shall include
the Receivable Files held by it under this Agreement and the
related accounts, records, and computer systems, in such a manner
as shall enable the Owner Trustee or the Trustee to identify all
Receivable Files and such related accounts, records and computer
systems and to verify, if the Owner Trustee or the Trustee so
elects, the accuracy of the Servicer's recordkeeping. The
Servicer shall promptly report to the Owner Trustee or the
Trustee any failure on its part to hold the Receivable Files and
maintain its accounts, records, and computer systems as herein
provided, and promptly take appropriate action to remedy any such
failure.
(b) Maintenance of and Access to Records. The
Servicer shall maintain each Receivable File at one of the
locations specified in Schedule B to this Agreement, or at such
other location as shall be specified to the Owner Trustee and the
Trustee by 30 days' prior written notice. The Servicer shall
make available to the Owner Trustee, the Trustee or their
respective duly authorized representatives, attorneys, or
32
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 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
Trustee (or, if the Notes have been paid in full, by the Owner
Trustee), the Servicer shall release any document in the
Receivable Files to the Trustee or Owner Trustee, its agent or
its 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 Trustee, its agent or its
designee to return any document or any delay in doing so.
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 Trustee (or,
if the Notes have been paid in full, 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 Trustee shall constitute
conclusive evidence of the authority of any such Authorized
Officer to act and shall be considered in full force and effect
until receipt by the Servicer of written notice to the contrary
given by the Owner Trustee or Trustee.
SECTION 3.6. Custodian's Indemnification. The
Servicer, as custodian, shall indemnify the Issuer, the Owner
Trustee and 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 and the Trustee as the result of
any act or omission in any way relating to the maintenance and
custody by the Servicer, as custodian, of the Receivable Files;
provided, however, that the Servicer shall not be liable for any
portion of any such amount resulting from the wilful misfeasance,
bad faith, or negligence of the Issuer, the Owner Trustee or
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
Trustee or by the Holders of Notes evidencing not less than 50%
of the aggregate Outstanding Amount of the Notes (or, if there
33
are no Notes outstanding, the Holders of Certificates
representing not less than 50% of the Certificate Balance), in
the same manner as the 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 Receivables 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
automobile receivables that it services for itself or others.
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, accounting
for collections, furnishing monthly and annual statements to the
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 adversely affect
the interests of Holders. 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 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
34
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.
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 or others 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 date
one month prior to the Certificate Final Scheduled Maturity Date,
it shall promptly repurchase such Receivable pursuant to
Section 4.7. The Servicer is authorized in its discretion to
waive any Late Fees that may be due in the ordinary course of
collecting a Receivable; however, the Servicer shall not agree to
any reduction of the underlying APR on any Receivable, to any
reduction of the Principal Balance thereof, or 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.
(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 which
the Servicer shall have determined to be a Defaulted Receivable
or otherwise. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable
in its servicing of new or used automobile receivables, which may
include reasonable efforts to realize upon any recourse to
Dealers, consigning the Financed Vehicle to a Dealer for resale
and selling the Financed Vehicle at public or private sale. The
Servicer shall be entitled to recover from proceeds all
reasonable expenses incurred by it in the course of converting
the Financed Vehicle into cash proceeds. The Liquidation
Proceeds realized in connection with any such action with respect
to a Receivable shall be deposited by the Servicer in the
Collection Account in the manner specified in Section 5.2 and
shall be applied to reduce (or to satisfy, as the case may be)
the Repurchase Amount of the Receivable, if such Receivable is to
be repurchased by the Seller pursuant to Section 3.2, or is to be
35
purchased by the Servicer pursuant to Section 4.7. The foregoing
shall be subject to the provision that, in any case in which the
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. [Reserved]
SECTION 4.5. Maintenance of Security Interests in
Financed Vehicles. The Servicer, in accordance with its
customary servicing procedures, shall take such steps as are
necessary to maintain perfection of the first priority security
interest created in any Financed Vehicle which secures a
Receivable. The Owner Trustee, on behalf of the Issuer, and the
Trustee hereby authorizes the Servicer, and the Servicer hereby
agrees, to take such steps as are necessary to reperfect 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 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 Trustee a
perfected security interest in the related Financed Vehicle, the
Servicer hereby agrees that the Seller's listing as the secured
party on the certificate of title is deemed in its capacity as
agent of the Trustee and further agrees to hold such certificate
of title as the Trustee's agent and custodian; provided, however,
that the Servicer shall not, nor shall the Owner Trustee, the
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 4.6. 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;
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(ii) No Impairment. The Servicer shall not
impair the rights of the Issuer, the 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, except as provided in Section 4.2. In the
event that at the end of the scheduled term of any
Receivable, the outstanding principal amount thereof is
such that the final payment to be made by the related
Obligor is larger than the regularly scheduled payment
of principal and interest made by such Obligor, the
Servicer may permit such Obligor to pay such remaining
principal amount in more than one payment of principal
and interest; provided, however, that the last such
payment shall be due on or prior to the Collection
Period immediately preceding the Certificate Final
Distribution Date.
SECTION 4.7. Purchase of Receivables Upon Breach.
The Seller, the Servicer, the 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 Trustee or the Owner
Trustee, as the case may be, of any breach by the Servicer of its
covenants under Section 4.6 which materially and adversely
affects the interest of the Holders in any Receivable (for this
purpose, any breach of the covenant set forth in Section 4.6(iii)
shall be deemed to materially and adversely affect the interest
of the 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 Trustee or the Holders against the
Servicer with respect to a breach pursuant to Section 4.2 or 4.6
shall be to require the Servicer to purchase Receivables pursuant
to this Section 4.7. The 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 4.7 or the eligibility of any Receivable for
purposes of this Agreement.
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SECTION 4.8. Servicing Fee. The Servicing
Fee for a Collection Period shall equal the sum of (i) the product of one-
twelfth of the Servicing Fee Rate and the Pool Balance as of the
close of business on the last day of the immediately preceding
Collection Period and (ii) Late Fees received from Obligors
during such Collection Period and in addition, as part of the
Servicing Fee, the Servicer shall be entitled to receive
investment earnings when and as paid on amounts on deposit in the
Trust Accounts or earned on collections pending deposit in the
Trust Accounts. 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 the
Issuer, the Owner Trustee, the Trustee, the Owner Trustee's and
the Trustee's counsel, the Paying Agent, the Authenticating
Agent, the Note Registrar and the Certificate Registrar and
independent accountants and auditors, taxes imposed on the
Servicer, and other costs incurred in connection with
administering and servicing the Receivables) except federal,
state and local income and franchise taxes, if any, of the Issuer
or any Holder or any expenses in connection with realizing upon
Receivables under Section 4.3.
SECTION 4.9. Servicer's Certificate. On or before
each Determination Date, the Servicer shall deliver to the
Trustee, the Owner Trustee, the Paying Agent and the Rating
Agencies a Servicer's Certificate substantially in the form of
Exhibit A hereto, for the Collection Period preceding such
Determination Date, containing all information necessary to make
the distributions pursuant to Section 5.5, and all information
necessary for the Paying Agent to send statements to Holders
pursuant to Section 5.7. 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 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 with 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 Trustee and each Rating Agency.
SECTION 4.10. Annual Statement as to Compliance.
(a) The Servicer shall deliver to a firm of independent certified
public accountants, on or before March 31 of each year commencing
March 31, 199_, 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
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Servicer, stating that (a) a review of the activities of the
Servicer during the year ended the preceding December 31 (or
shorter period 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 shorter period in the case of the first
such report), or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to
such officer and the nature and status thereof.
(b) The Servicer shall deliver to the Trustee, 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 Events of Servicing Termination under Section 8.1.
The Seller shall deliver to the 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 Events of Servicing
Termination under Section 8.1.
SECTION 4.11. Annual Audit Report. The Servicer shall
cause a firm of independent public accountants (which may provide
other services to the Servicer or the Seller) to prepare a report
(with a copy of the certificate described in Section 4.10(a)
attached) addressed to the Board of Directors of the Servicer,
for the information and use of the Trustee, the Owner Trustee and
the Rating Agencies on or before March 31 of each year, beginning
March 31, 199_, to the effect that, with respect to the twelve
months (or shorter period in the case of the first such report)
ended the preceding December 31, such firm has either (A)
examined a written assertion by the Servicer about the
effectiveness of the Servicer's internal control structure over
the processing and reporting of transactions relating to
securitized automobile loans with respect to the criteria set
forth by the Servicer (the "Assertion") and that, on the basis of
such examination, such firm is of the opinion that the Servicer's
Assertion is fairly stated in all material respects except for
(i) such exceptions as such firm believes to be immaterial and
(ii) such other exceptions as shall be set forth in such firm's
report, or (B) such firm has performed the following Procedures:
1. For a sample of daily cash receipts during the preceding
calendar year, perform the following:
a. Trace total cash receipts to deposits on bank
statements.
b. Agree cash receipts for securitized loans to computer
reports.
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c. Trace cash receipts for securitized loans to
disbursements to the Owner Trustee and the Trustee.
2. For a sample of monthly cash receipt reports, perform the
following:
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, selected
from the loan delinquency report at a point in time, trace
loan number to inclusion in the loan collection system.
The determination of which of the two alternative reports to be
prepared and delivered, and the size of each sample to be tested,
shall be decided in the sole discretion of the Servicer. The
report of the independent certified public accountants shall also
indicate that such accounting firm is independent of the Servicer
within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 4.12. Access by 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 Holder 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 4.12 shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the
Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section 4.12.
SECTION 4.13. Reports to Holders and the Rating
Agencies. (a) The 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 4.9, of the annual
statement described in Section 4.10, or the annual report
described in Section 4.11. The Trustee or the Owner Trustee, as
applicable, may require the Holder to pay a reasonable sum to
cover the cost of the Trustee's or the Owner Trustee's, as
applicable, complying with such request.
(b) The Trustee or the Owner Trustee, as applicable,
shall forward to the Rating Agencies the statement to Holders
described in Section 5.7 and any other reports it may receive
40
pursuant to this Agreement to (i) Standard & Poor's Ratings
Services, Asset-Backed Surveillance Group, 25 Broadway, New York,
New York 10004 and (ii) Moody's Investors Service, Inc., ABS
Monitoring Dept., 99 Church Street, 4th Floor, New York, New York
10007.
ARTICLE V
TRUST ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1. Establishment of Trust Accounts.
(a) The Servicer shall establish and maintain:
(i) For the benefit of the Noteholders and the
Certificateholders, in the name of the Trustee, an
Eligible Deposit Account for the deposit of Collections
(the "Collection Account"), bearing a designation
clearly indicating that the funds deposited therein are
held for the benefit of the Noteholders and the
Certificateholders.
(ii) For the benefit of the Noteholders, in the
name of the 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.
(iii) For the benefit of the Noteholders and the
Certificateholders, in the name of the Trustee, an
Eligible Deposit Account for the deposit of funds
pursuant to Sections 5.1(d) and 5.5(c) (the "Reserve
Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the
benefit of the Noteholders and the Certificateholders.
Should any depositary of the Collection Account, the
Note Distribution Account or the Reserve Account (collectively,
the "Trust Accounts") or of the Certificate Distribution Account
(including the Seller) cease to be either a Qualified Institution
or a Qualified Trust Institution, 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 Servicer provides the Trustee with a
letter from the Rating Agencies to the effect that the current
ratings assigned to the Certificates and the Notes, by the Rating
Agencies will not be adversely affected by such depositary's
ceasing to be a Qualified Institution or a Qualified Trust
Institution, as the case may be.
(b) All amounts held in the Trust Accounts and the
Certificate Distribution Account shall be invested by the bank or
41
trust company then maintaining the account (at the written
direction of the Servicer (or, if investment earnings on amounts
on deposit in the Certificate Distribution Account are not being
paid to the Servicer, the Seller) in Permitted Investments that
mature not later than the Deposit Date next succeeding the date
of investment except, if the Trust Accounts are maintained with
the Trustee or the Certificate Distribution Account is maintained
with the Owner Trustee, as applicable, for investment on which
the Trustee or the Owner Trustee, as applicable, is the obligor
(including repurchase agreements on which the Trustee or the
Owner Trustee, as applicable, in its commercial capacity is
liable as principal), which investments may mature on such
Distribution Date; provided, however, that once such amounts have
been invested by such bank or trust company, as applicable, in
Permitted Investments, such Permitted Investments must be held or
maintained until they mature on or before the dates described
above.
(c) The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Trust
Accounts and in all proceeds thereof (excluding investment income
thereon) and all such funds, investments, proceeds and income
shall be part of the Owner Trust Estate. Except as otherwise
provided herein, the Trust Accounts shall be under the sole
dominion and control of Trustee for the benefit of the
Noteholders and the Certificateholders, or the Noteholders, as
the case may be.
(d) On the Closing Date, the Seller shall deposit the
Reserve Account Deposit into the Reserve Account. Amounts on
deposit in the Reserve Account will be released and distributed
to the Seller and the General Partner on each Distribution Date
to the extent that the amount on deposit in the Reserve Account
(after giving effect to all deposits therein or withdrawals
therefrom on such Distribution Date) exceeds the Specified Reserve
Account Balance. Upon any distribution to the Seller or the General
Partner of amounts from the Reserve Account, Holders will not have
any rights in, or claims to, such amounts. Amounts properly
distributed to the Seller or the General Partner from the
Reserve Account or otherwise shall not be available under any
circumstances to the Issuer, the Trustee, the Owner Trustee or
the Holders and the Seller or the General Partner shall in no
event thereafter be required to refund any such distributed amounts.
(e) With respect to the Trust Account Property, the
Trustee agrees, by its respective acceptance hereof, that:
(i) any Trust Account Property or any property in
a Trust Account that is held in deposit accounts shall
be held solely in the Eligible Deposit Accounts subject
to the last paragraph of Section 5.1(a); and, except as
otherwise provided herein, each such Eligible Deposit
Account shall be subject to the exclusive custody and
control of the Trustee and the Trustee shall have sole
signature authority with respect thereto;
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(ii) any Trust Account Property that constitutes
Physical Property shall be delivered to the Trustee in
accordance with paragraph (a) of the definition of
"Delivery" and shall be held, pending maturity or
disposition, solely by the Trustee or a financial
intermediary (as such term is defined in Section 8-
313(4) of the UCC) acting solely for the Trustee;
(iii) any Trust Account Property that is a book-
entry security held through the Federal Reserve System
pursuant to Federal book-entry regulations shall be
delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the
Trustee, pending maturity or disposition, through
continued book-entry registration of such Trust Account
Property as described in such paragraph; and
(iv) any Trust Account Property that is an
"uncertificated security" under Article 8 of the UCC
and that is not governed by clause (iii) above shall be
delivered to the Trustee in accordance with paragraph
(c) of the definition of "Delivery" and shall be
maintained by the Trustee, pending maturity or
disposition, through continued registration of the
Trustee's (or its nominee's) ownership of such
security.
Effective upon Delivery of any Trust Account Property, the
Trustee shall be deemed to have represented that it has purchased
such Trust Account Property for value, in good faith and without
notice of any adverse claim thereto.
(f) The Servicer shall have the power, revocable by
the Trustee or by the Owner Trustee with the consent of the
Trustee, to instruct the Trustee to make withdrawals and payments
from the Trust Accounts for the purpose of permitting the
Servicer or the Owner Trustee to carry out its respective duties
hereunder or permitting Trustee to carry out its duties under the
Indenture. The Servicer will not direct the Trustee to make any
investment of any funds or to sell any investment held in any of
the Trust Accounts unless the security interest Granted and
perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without
any further action by any Person, and, in connection with any
direction to the Trustee to make any such investment or sale, if
requested by the Trustee, the Servicer shall deliver to the
Trustee an Opinion of Counsel, acceptable to the Trustee, to such
effect.
SECTION 5.2. Collections. The Servicer shall remit
daily within forty-eight hours of receipt to the Collection
Account all payments by or on behalf of the Obligors on the
Receivables and all Liquidation Proceeds, both as collected
during the Collection Period. Chase USA has requested that, so
43
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) either (a) the short-term certificate
of deposit ratings of the Servicer are at least "P-1" by Moody's
and "A-l" by Standard & Poor's or (b) the Servicer provides the
Trustee with a letter from the Rating Agencies to the effect that
the current ratings assigned to the Notes by the Rating Agencies
will not be adversely affected by the remittance of Collections
on a monthly, rather than a daily, basis and (ii) the Servicer
shall be Chase USA. [Upon remittance by the Servicer of
Collections to the Collection Account pursuant to the preceding
sentence, the Paying Agent shall provide written notice to the
Trustee 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 Trustee and the Owner Trustee, with such
written notice by 12 noon, New York City time, on such Deposit
Date, then the 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.
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 Purchase or Repurchase Amount pursuant to
Sections 3.2 and 4.7, 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 deposited from the Reserve Account into the
Collection Account and from the Collection Account into the Note
Distribution Account and the Certificate Distribution Account
with respect to the next succeeding Distribution Date.
(b) On the Business Day prior to each Distribution
Date, the Servicer shall instruct the Trustee in writing (based
on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section
44
4.9) to withdraw from the Reserve Account and deposit in the
Collection Account and the Trustee shall so withdraw and deposit
the Reserve Account Transfer Amount for such Distribution Date.
(c) Not later than 12:00 noon, New York City time, on
each Distribution Date, at the Servicer's direction, the Trustee,
or the Paying Agent on behalf of the Trustee, shall cause to be
made the following distributions, by wire transfer of immediately
available funds, in the following order of priority and in the
amounts set forth in the Servicer's Certificate for such
Distribution Date:
[(i) to the Servicer, to the extent of the Total
Distribution Amount, 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 5.6;
(ii) to the Administrator, to the extent of the
Total Distribution Amount (as such amount has been
reduced by the distribution described in clause (c)(i)
above), an amount equal to sum of (x) $____ on account
of its monthly fee, plus (y) the amount of any
Administration Fee due to the Administrator 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 5.6;]
(iii) to the Note Distribution Account, to the
extent of the sum of the Total Distribution Amount
remaining after the distributions described in clauses
(c)(i) and (ii) above and the Reserve Account Transfer
Amount, if any, for such Distribution Date, the
Noteholders' Interest Distributable Amount;
(iv) to the Owner Trustee for deposit in the
Certificate Distribution Account, to the extent of the
sum of the Total Distribution Amount and the Reserve
Account Transfer Amount, if any, for such Distribution Date,
remaining after the distributions described in clauses
(c)(i) through (iii) above, the Certificateholders' Interest
Distributable Amount;
(v) to the Note Distribution Account, to the
extent of the sum of the Total Distribution Amount and
the Reserve Account Transfer Amount, if any, for such
Distribution Date, remaining after the distributions
described in clauses (c)(i) through (iv) above, the
Noteholders' Principal Distributable Amount;
45
(vi) to the Owner Trustee for deposit in the
Certificate Distribution Account, to the extent of the
sum of the Total Distribution Amount and the Reserve
Account Transfer Amount, if any, for such Distribution Date
remaining after the distributions described in clauses
(c)(i) through (v) above, the Certificateholders'
Principal Distributable Amount; and
(vii) to the Reserve Account, any amounts
remaining.
In the event that the Collection Account is maintained
with an institution other than the 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.
SECTION 5.6. Net Deposits. Chase USA (in whatever
capacity) 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 whatever capacity) pursuant to Section 4.8 (if
applicable) and Section 5.5, if (a) it shall be the Servicer and
(b) it is entitled, pursuant to Section 5.2, to make deposits on
a monthly basis, rather than a daily basis. Nonetheless, the
Servicer shall account for all of the above described amounts as
if such amounts were deposited and distributed separately.
SECTION 5.7. Statements to Certificateholders and
Noteholders. (a) On each Distribution Date, the Servicer shall
provide to the Trustee (with a copy of the Rating Agencies) 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 A to Schedule E]
(or such other form that is acceptable to the Trustee, the Owner
Trustee and the Servicer) setting forth at least the following
information as to the Notes (separately stating such information
as to the Class A-1 Notes and the Class A-2 Notes) and the
Certificates, to the extent applicable:
(i) the amount of such distribution allocable to
principal;
(ii) the amount of such distribution allocable to
interest;
(iii) the Pool Balance as of the close of business
on the last day of the preceding Collection Period;
(iv) the Outstanding Amount of each class of the
Notes, the Class A-1 Note Pool Factor, the Class A-2
Note Pool Factor, the Certificate Balance and the
Certificate Pool Factor, in each case after giving
46
effect to payments allocated to principal reported
under (i) above;
(v) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period;
(vi) the amount of the Administration Fee paid to
the Administrator with respect to such Collection
Period;
(vii) the aggregate amount of the Purchase Amounts
for Purchased Receivables with respect to the related
Collection Period paid by each of the Seller and the
Servicer (accounted for separately);
(viii) the amount of Aggregate Net Losses and
Aggregate Principal Balance of Defaulted Receivables,
if any, for such Collection Period;
(ix) the balance of the Reserve Account on such
Distribution Date, after giving effect to deposits and
withdrawals made with respect to such Distribution
Date;
(x) the Specified Reserve Account Balance for
such Distribution Date;
(xi) the Total Distribution Amount for such
Collection Period;
(xii) the Noteholders' Distributable Amount, the
components thereof, and the amount, if any, to be
withdrawn from the Reserve Account and deposited into
the Note Distribution Account pursuant to Section
5.5(c); and
(xiii) the Certificateholder's Distributable Amount,
the components thereof, and the amount, if any, to be
withdrawn from the Reserve Account and deposited into
the Certificate Distribution Account pursuant to
Section 5.5(d).
(xiv) the aggregate amount of the Purchase
Amounts for Purchased Receivables with respect to such
Collection Period;
(xv) the amount of Aggregate Net Losses, if any,
for such Collection Period; and
47
(xvi) the balance of the Reserve Account on such
Distribution Date, after giving effect to deposits and
withdrawals made with respect to such Distribution
Date;
(xvii) the Specified Reserve Account Balance for
such Distribution Date;
(xviii) the Noteholders' Distributable Amount, the
components thereof, and the amount, if any, to be
withdrawn from the Reserve Account and deposited into
the Note Distribution Account pursuant to Section
5.05(c); and
(xix) the Certificateholder's Distribution Amount,
the components thereof, and the amount, if any, to be
withdrawn from the Reserve Account and deposited into
the Certificate Distribution Account pursuant to
Section 5.05(d).
Each amount set forth pursuant to subclause (i), (ii),
(v), (vi), (xi) or (xii) above shall be expressed as a dollar
amount per $1,000 of original principal balance of a Note.
Within the prescribed period of time for tax reporting
purposes after the end of each calendar year during the term of
the Indenture, the Trustee shall mail to each Person who at any
time during such calendar year shall have been a Noteholder and
received any payment thereon, a statement containing the amounts
described in (i) and (ii) above and any other information
required by applicable tax laws, for the purposes of such
Noteholder's preparation of Federal income tax returns.
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 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
48
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 corporate
action.
(iii) Valid Sale; Binding Obligations. This
Agreement effects a valid sale, transfer, and
assignment of the Receivables, enforceable against
creditors of and purchasers from the Seller; this
Agreement and each of the other Basic Documents to
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.
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(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, 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 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.
The Seller shall indemnify, defend, and hold harmless
the Issuer, the Owner Trustee and the Trustee from and against
any loss, liability or expense incurred by reason of (i) the
Seller's wilful misfeasance, bad faith, or negligence in the
performance of its duties hereunder, or by reason of reckless
disregard of the obligations and duties hereunder and (ii) the
Seller's violation of federal or state securities laws in
connection with the registration of the sale of the 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 Trustee, respectively,
pursuant to this Section 6.2 and the Issuer, the Owner Trustee or
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the Trustee, respectively, thereafter shall collect any of such
amounts from others, the Issuer, the Owner Trustee or the
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 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 and any Person controlling, controlled by, or under
common control with the Seller 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 "Noteholder" or "Certificateholder" specified in
Section 1.1. Notes or Certificates so owned by or pledged to the
Seller or such controlling or commonly controlled Person 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 than the Trustee) becomes
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Servicer pursuant to Section 7.3 and Section 8.2 in a case of a
successor to the Servicer), and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the 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 corporate 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
52
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 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
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
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
53
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
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 Trustee
or the Holders through the wilful misfeasance, gross
negligence, or bad faith of the Servicer in the
performance of its duties under this Agreement or by
reason of reckless disregard of its obligations and
duties under this Agreement.
Indemnification under this Section 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.
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 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 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
54
provision shall not protect the Servicer or any such person
against any liability that would otherwise be imposed by reason
of wilful misfeasance, gross negligence, or bad faith in the
performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement, except that
employees of either the Servicer or its affiliates will be
protected against any liability that would otherwise be imposed
by reason of negligence. 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 wilful
misfeasance, negligence, or bad faith in the performance of its
duties hereunder or by reason of reckless disregard of its
obligations and duties under this Agreement or the 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 shall be payable on a Distribution Date
from the Collection Account only after all payments required to
be made on such date to the Holders and the Servicer have been
made.
(c) Except as provided in this Agreement, the Servicer
shall not be under any obligation to appear in, prosecute, or
defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may
involve it in any expense or liability; provided, however, that
the Servicer may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement and the
rights and duties of the parties to this Agreement and the
interests of the 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
shall be payable on a Distribution Date from the Collection
Account only after all payments required to be made on such date
to the Holders and the Servicer shall have been made.
The Person to be indemnified shall provide the Issuer,
the Owner Trustee and the Trustee with a certificate and
accompanying Opinion of Counsel requesting indemnification and
setting forth the basis for such request.
55
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 receipt by the Issuer
of notice from each of Standard & Poor's and Moody's to the
effect that the rating then assigned to the Certificates or the
Notes by each respective rating agency will not be withdrawn or
reduced as a result of such resignation and such appointment.
Notice of any such determination permitting the resignation of
Chase USA shall be communicated to the Issuer, the 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 Trustee and the Owner Trustee
concurrently with such notice. No such resignation shall become
effective until the Trustee (which shall not be obligated to act
as successor Servicer if the Servicer has resigned for a reason
other than that the performance of its duties are no longer
permissible under applicable law) or a successor Servicer shall
have assumed the responsibilities and obligations of the Servicer
hereunder in accordance with Section 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. Any compensation payable to
such Person shall be paid by the Servicer from its own funds and
none of the Issuer, the Owner Trustee, the 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 shall be deemed to be between the
Servicer and such Person alone, and the Issuer, the Owner
Trustee, the 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 default hereunder (each, a "Events
of Servicing Termination"):
56
(i) Any failure by the Servicer to deliver to the
Trustee the Servicer's Certificate for the related
Collection Period, or any failure by the Servicer to
deliver to the Trustee, for 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 payment or deposit on such Deposit Date),
which failure continues unremedied for a period of five
Business Days after (A) discovery by an officer of the
Servicer or (B) written notice (1) to the Servicer by
the Trustee or the Owner Trustee or (2) to the Trustee
or 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) continues unremedied for
a period of 60 days after the date on which written
notice of such failure, requiring the same to be
remedied, shall have been given (1) to the Servicer by
the Trustee or the Owner Trustee, or (2) to the 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
57
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 Events of Servicing Termination
described above, and in each and every case and for so long as
such Events of Servicing Termination shall not have been
remedied, either the Trustee or the Holders of Notes evidencing
not less than 50% 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 50% of the
Certificate Balance), by notice given in writing to the Servicer
(and to the 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 Trustee pursuant to this Section
8.1; and, without limitation, the Trustee shall be hereby
authorized and empowered to execute and deliver, on behalf of the
predecessor Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the
transfer and endorsement of the Receivable Files, or otherwise.
The predecessor Servicer shall cooperate with the successor
Servicer and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the successor Servicer
for administration by it of all cash amounts that shall at the
time be held by the predecessor Servicer for deposit, shall have
been deposited by the Servicer in the Collection Account, or
shall thereafter be received with respect to a Receivable. All
reasonable costs and expenses (including attorneys' fees and
disbursements) incurred in connection with transferring the
Receivable Files to the successor Servicer and amending this
Agreement to reflect such succession as Servicer pursuant to this
Section 8.1 shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs and
expenses. The Trustee and the Owner Trustee shall give written
notice of any termination of the Servicer to their related
Holders, and the Trustee shall give such notice to the Rating
Agencies.
SECTION 8.2. Trustee to Act; Appointment of
Successor. Upon the Servicer's receipt of notice of termination
pursuant to Section 8.1 or resignation pursuant to Section 7.5,
the Trustee shall be the successor in all respects to the
Servicer in its capacity as Servicer under this Agreement, and
58
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 Trustee shall be entitled to such
compensation (whether payable out of the Collection Account or
otherwise) as the Servicer would have been entitled to under this
Agreement if no such notice of termination or resignation had
been given. Notwithstanding the above, the Trustee may, if it
shall be unwilling so to act, or shall, if it shall be legally
unable so to act, appoint, or petition a court of competent
jurisdiction to appoint, any established financial institution
(x) having a net worth of not less than $100,000,000 as of the
last day of the most recent fiscal quarter for such institution
and (y) whose regular business shall include the servicing of
automobile receivables, as successor Servicer under this
Agreement; provided, that the appointment of any such successor
Servicer will not result in the withdrawal or reduction of the
outstanding rating assigned to the Certificates or the Notes by
Rating Agency. In connection with such appointment, the Trustee
may make such arrangements for the compensation of such successor
Servicer out of payments on Receivables as it and such successor
Servicer shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Servicer
under this Agreement. The Trustee and such successor Servicer
shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Unless the
Trustee shall be prohibited by law from so acting, the Trustee
shall not be relieved of its duties as successor Servicer under
this Section 8.2 until the newly appointed successor Servicer
shall have assumed the responsibilities and obligations of the
Servicer under this Agreement.
SECTION 8.3. Notification to Noteholders and
Certificateholders. Upon any Servicer 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 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
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 in accordance with this Agreement. Upon
any such waiver of a past default, such default shall cease to
exist, and any Events 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
59
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.
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 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 Trustee shall not
permit the purchase of the Owner Trust Estate pursuant to this
Section unless either (i) the Servicer's long-term unsecured debt
is rated at the time of such purchase at least BBB- and Baa3 by
the Rating Agencies, or (ii) the Servicer provides to the Trustee
an Opinion of Counsel in form reasonably satisfactory to the
Trustee and in form and substance satisfactory to the Rating
Agencies to the effect that such purchase will not constitute a
fraudulent transfer under applicable state and federal law.
(b) Upon any sale of the assets of the Issuer pursuant
to Section 9.2 of the Trust Agreement or Article V of the
Indenture, the Servicer shall instruct the Trustee or the Owner
Trustee, as applicable, 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 Distribution Date on which the
Sale Proceeds are deposited in the Collection Account (or, if
such proceeds are not so deposited on a Distribution Date, on the
Distribution Date immediately following such deposit), the
Servicer shall instruct the Trustee or the Owner Trustee, as
applicable, in writing to make, and the Trustee or the Owner
Trustee, as applicable, shall make the following deposits and
distributions (after the application on such Distribution 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 on investments
therein):
(i) to the Note Distribution Account, any portion
of the Noteholders' Interest Distributable Amount not
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otherwise deposited into the Note Distribution Account
on such Distribution 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 to
result from the deposits made in the Note Distribution
Account on such Distribution Date);
(iii) to the Certificate Distribution Account, any
portion of the Certificateholders' Interest
Distributable Account not otherwise deposited into the
Certificate Distribution Account on such Distribution
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 to result from
the deposits made in the Certificate Distribution
Account on such Distribution Date).
Any Sale Proceeds remaining after the deposits described above
shall be paid to the Seller.
(c) Notice of any termination of the Issuer shall be
given by the Servicer to the Owner Trustee, the Trustee and the
Rating Agencies as soon as practicable after the Servicer has
received notice thereof.
(d) Following the satisfaction and discharge of the
Indenture and the payment in full of the principal of and
interest on the Notes, the Certificateholders will succeed to the
rights of the Noteholders hereunder (other than rights to receive
payments under Section 5.5(b)) and the Owner Trustee will succeed
to the rights of, and assume the obligations of, the Trustee
pursuant to this Agreement.
(e) After the payment to the 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 Seller] and any other
asset remaining in the Owner Trust Estate shall be distributed to
[the Seller].
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Amendment. This Agreement may be
amended by the Seller, the Servicer and the Owner Trustee, with
the prior consent of the Trustee and prior notice to the Rating
Agencies but without prior notice to or the consent of any of the
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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 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 delivered to the Owner Trustee and the Trustee, adversely
and materially affect the interests of the Issuer or any of the
Holders and provided, further, that the Servicer shall deliver
written notice of such changes to each Rating Agency prior to the
execution of any such amendment, or (ii) to effect a transfer or
assignment in compliance with Section 10.7(i) of this Agreement.
Notwithstanding the foregoing, no amendment modifying the
provisions of Section 5.5 shall become effective without the
prior written confirmation of each of the Rating Agencies that
such amendment will not result in a downgrade or withdrawal of
any of the then current ratings assigned by them to the
Certificates and the Notes.
This Agreement may also be amended from time to time by
the Seller, the Servicer and the Owner Trustee, with the consent
of the 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 10.7(a)(ii) 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 the Trustee and
each Noteholder and Certificateholder and to the Rating Agencies.
It shall not be necessary for the consent of the
Trustee, the Certificateholders or the Noteholders pursuant to
this Section10.1 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
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subject to such reasonable requirements as the Trustee or the
Owner Trustee may prescribe.
Prior to the execution of any amendment to this
Agreement, the 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 Trustee and the Owner Trustee shall not be
obligated to enter into any such amendment which affects the
Trustee's and the Owner Trustee's own rights, duties or
immunities under this Agreement.
Prior to the execution of any amendment to this
Agreement, other than an amendment permitted pursuant to clause
(i) of the first paragraph of this Section 10.1, the Servicer
shall have received prior written confirmation from each of the
Rating Agencies that the rating of the Certificates and the Notes
then assigned by them will not be reduced or withdrawn as a
result of such amendment.
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 Trustee in the Receivables and in
the proceeds thereof. The Servicer shall deliver (or cause to be
delivered) to the Owner Trustee and the Trustee file-stamped
copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change
its name, identity, or corporate structure in any manner that
would, could, or might make any financing statement or
continuation statement filed by the Seller in accordance with
paragraph (a) above seriously misleading within the meaning of
9-402(7) (or any comparable section) of the Relevant UCC, unless
it shall have given the Owner Trustee and the Trustee at least 30
days prior written notice thereof.
(c) The Seller and the Servicer shall give the Owner
Trustee and the Trustee at least 60 days prior written notice of
any relocation of its principal executive office if, as a result
of such relocation, the applicable provisions of the 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, and its principal
executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records
as to each Receivable accurately and in sufficient detail to
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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
Trustee. Indication of the Issuer's and 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 receivables to
any prospective purchaser, creditor, or other transferee, the
Seller or the Servicer, as the case may be, shall give to such
prospective purchaser, creditor, or other transferee computer
tapes, records, or print-outs (including any restored from
archives) that, if they shall refer in any manner whatsoever to
any Receivable, shall indicate clearly that such Receivable has
been sold and is owned by the Issuer and has been pledged to the
Trustee.
(g) The Servicer shall permit the 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 Trustee, within five Business Days, a list
of all Receivables by contract number and name of Obligor then
held by the Issuer, together with a reconciliation of such list
to the Schedule of Receivables attached as Schedule A to this
Agreement and to each of the Servicer Certificates indicating
removal of Receivables from the Owner Trust Estate.
(i) The Servicer shall deliver to the Owner Trustee
and the 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
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and protect the interest of the Issuer and the Trustee
in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in
which such details are given, or (b) stating that, in
the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest; and
(ii) on or before March 31 of each year,
commencing with [March 31], 199__, 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 Owner Trustee and the
Trustee in the Receivables, and reciting the details of
such filings or referring to prior opinions of Counsel
in which such details are given, or (b) stating that,
in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest.
Notwithstanding the provisions of Section 10.5, such
Opinion of Counsel may be sent by regular non-certified
mail, and such mailed opinion shall be deemed delivered
when so mailed.
(j) The 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.
SECTION 10.3. [Reserved].
SECTION 10.4. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York without reference to its conflict of law
provision, and the obligations, rights, remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 10.5. Notices. All demands, notices, and
communications under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller, c/o Chase Automotive
Finance, 900 Stewart Avenue, Garden City, New York 11530
Attention: Financial Controller, or at such other address as
shall be designated by the Seller in a written notice to the
Trustee, (b) in the case of the Servicer, c/o Chase Automotive
65
Finance, 900 Stewart, Garden City, New York 11530, Attention:
Financial Controller, or at such other address as shall be
designated by the Servicer in a written notice to the Trustee,
(c) in the case of the Trustee, at ____________________________,
___________, _________ __________ Attention: __________________,
and, (d) in the case of the Issuer and the Owner Trustee, at
______________________, ___________, _________ _____, 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 10.6. Severability of Provisions. If any one
or more of the covenants, agreements, provisions, or terms of
this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions, or terms shall be
deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this
Agreement or of the Certificates or of the Notes or the rights of
the Holders thereof.
SECTION 10.7. Assignment[; References to Chase USA].
(a) Notwithstanding anything to the contrary contained herein,
except as provided in Sections 8.3 and 9.3, neither the Seller
nor the Servicer may assign all, or a portion of, its rights,
obligations and duties under this Agreement unless (i) (A) such
transfer or assignment will not result in a reduction or
withdrawal by Standard & Poor's or Moody's of the rating then
assigned to the Notes or the Certificates and (B) the Trustee and
the Owner Trustee have consented to such transfer or assignment,
which consents shall not be unreasonably withheld or (ii) the
Trustee, the Owner Trustee and Holders of Certificates evidencing
not less than 51% of the Certificate Balance and the consent of
the Holders of Notes evidencing not less than 51% of the
Outstanding Amount of the Notes, consent thereto. Any transfer
or assignment with respect to the Servicer of all of its rights,
obligations and duties will not become effective until a
successor Servicer has assumed the Servicer's rights, duties and
obligations under this Agreement. In the event of a transfer or
assignment pursuant to clause (ii) above, the Rating Agencies
shall be provided with notice of such transfer or assignment.
[(b) References in this Agreement to Chase USA as
Seller and/or Servicer hereunder shall refer to a national
banking association having its principal executive offices
located at 200 Jericho Quadrangle, Jericho, New York 11759 and
shall be deemed to include any successor or assign Chase USA (New
York) in connection with the Proposed Merger.]
SECTION 10.8. Certificates and Notes Nonassessable and
Fully Paid. The interests represented by the Certificates and
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Notes shall be nonassessable for any losses or expenses of the
Issuer or for any reason whatsoever, and, upon authentication
thereof by the Trustee and the Owner Trustee pursuant to the
Trust Agreement and the Indenture, respectively, each Certificate
and Note shall be deemed fully paid.
SECTION 10.9. Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding upon the
parties hereto, the Certificateholders and Noteholders and their
respective successors and permitted assigns. Except as otherwise
provided in this Agreement, no other person will have any right
or obligation hereunder.
SECTION 10.10. Assignment to Trustee. The Seller
hereby acknowledges and consents to any mortgage, pledge,
assignment and grant of a security interest by the Issuer to the
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 Trustee.
SECTION 10.11. Limitation of Liability of Owner Trustee
and 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 beneficial owner
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 acknowledge and accepted by
________________________ not in its individual capacity but
solely as 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.
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IN WITNESS WHEREOF, the parties have caused this
Pooling and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
CHASE MANHATTAN BANK USA, N.A.,
as Seller and Servicer
By ______________________________
Name:
Title:
CHASE MANHATTAN AUTO OWNER TRUST,
SERIES 199__-__
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 Trustee
By:_________________________
Name:
Title:
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SCHEDULE A
[LIST OF RECEIVABLES]
Delivered to the Owner Trustee and the Trustee
on the Closing Date.
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SCHEDULE B
Location of Receivable Files
[The Chase Manhattan Bank]
20 Clinton Avenue South
5th Floor
SENECA Building
Rochester, New York 14604
Iron Mountain
Route 9-W South
P.O. Box 477
Pt. Ewen, NY 12466
[The Chase Manhattan Bank]
900 Stewart Avenue
Garden City, NY 11530
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EXHIBIT A
[FORM OF SERVICER'S CERTIFICATE]
A-1
EXHIBIT B
[FORM OF CERTIFICATEHOLDER AND NOTEHOLDER REPORT]
E-1