AMENDED AND RESTATED SERVICING AGREEMENT
AMENDED AND RESTATED SERVICING AGREEMENT ("Agreement") dated
as of the 15th day of September, 1997, by and among THE CHASE MANHATTAN BANK, a
banking corporation organized under the laws of the State of New York and having
its principal place of business in New York, New York ("CMB"), CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, a banking association organized under the laws
of the United States and having its principal place of business in Wilmington,
Delaware ("CUSA"), CHASE FINANCIAL HOLDINGS, INC., an Ohio corporation with its
principal place of business in Cleveland, Ohio ("CFHI"), CHASE FINANCIAL
ACCEPTANCE CORPORATION, an Ohio corporation with its principal place of business
in Cleveland, Ohio ("CFAC," and collectively with CMB, CUSA and CFHI, "Chase"),
CHASE FINANCIAL MANAGEMENT CORPORATION, an Ohio corporation with its principal
place of business in Cleveland, Ohio (the "Chase Servicer"), and THE CIT
GROUP/SALES FINANCING, INC., a Delaware corporation ("CIT"), with offices at 650
CIT Drive, Livingston, New Jersey 07039, as servicer (the "Servicer").
RECITALS
WHEREAS, Chase, CIT and The CIT Group/Consumer Finance, Inc.
(NY) ("CITNY") entered into that certain Agreement dated as of May 9, 1997 (the
"Purchase Agreement") pursuant to which CIT and CITNY acquired from Chase
certain assets relating to its marine and recreational vehicle lending
businesses (the "Acquisition");
WHEREAS, in connection with the Acquisition, Chase, the Chase
Servicer and CIT entered into the Servicing Agreement, dated as of May 9, 1997,
as amended by Amendment No. 1 thereto, dated as of August 13, 1997 (the
"Original Servicing Agreement"), pursuant to which Chase and the Chase Servicer
retained the Servicer to service or subservice the Accounts and the Servicer
agreed to perform such services in accordance with the terms and conditions set
forth in the Original Servicing Agreement; and
WHEREAS, Chase, the Chase Servicer and CIT desire to amend and
restate the Original Servicing Agreement in its entirety as set forth in this
Agreement and the Exhibits referred to herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, it is agreed that the Original Servicing Agreement
is hereby amended and restated in its entirety as follows:
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ARTICLE I - DEFINITIONS
All capitalized terms not otherwise defined herein are used as
defined in the Purchase Agreement and the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1.1. Accounts - shall mean the collective reference to the
Chase Accounts, the New Securitization Accounts and the Old Securitization
Accounts;
1.2. Account Owner - shall mean, (i) with respect to a Chase
Account, CMB, CUSA, CFAC or CFHI, as the case may be, (ii) with respect to an
Old Securitization Account, the trustee, acting on behalf of the
certificateholders, identified in the related Pooling and Servicing Agreement
and (iii) with respect to a New Securitization Account, the trustee, acting on
behalf of the certificateholders, or trust identified in the related New
Securitization Servicing Agreement;
1.3. Aggregate Losses - shall mean, with respect to any
calendar year or partial calendar year, an amount equal to (x) the sum of the
Losses for such calendar year or partial calendar year, less (y) any recoveries
(including, but not limited to, sales proceeds and insurance credits) received
during such calendar year or partial calendar year in respect of Accounts in
default in, and included in the calculation of Aggregate Losses with respect to,
any prior calendar year or partial calendar year.
1.4. Agreement - shall mean this Agreement, as the same may
be amended from time to time, and any Exhibits hereto;
1.5. Business Day - shall be any day other than (i) a Saturday
or Sunday, or (ii) a day in which banking institutions in New York, New York,
Cleveland, Ohio or Oklahoma City, Oklahoma are authorized or obligated by law or
executive order to be closed;
1.6. Chase Accounts - shall mean the collective reference to
the Retained Accounts and the Repurchase Accounts;
1.7. Loss - shall mean with regard to any Account in default
the amount obtained by adding to the principal balance of such Account (i)
accrued interest, (ii) collection and insurance charges applicable to such
Account (including, but not limited to, any expenses for which the Servicer is
reimbursed pursuant to Section 8.3 hereof), (iii) repossession and liquidation
expenses incurred in connection with such Account (including, but not limited
to, any expenses for which the Servicer is reimbursed pursuant to Section 8.3
hereof) and (iv) forbearance expenses incurred in connection with such Account,
less any recovery on such Account including, but not limited to, sales proceeds
and insurance credits. Forbearance expenses shall be deemed to include any
losses incurred in connection with a bankruptcy court ordered modification of
the terms of the Account. Accrued interest is calculated at (a) the rate
disclosed in the Account or (b) in the case of precomputed Accounts in which no
rate is disclosed, at the interest rate which the Chase Servicer would be
obligated to use in computing the unpaid principal balance pursuant to the Rule
of 78's or actuarial
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method, as applicable, in the event of prepayment by the Obligor under any such
Account, from the last day paid to the Date of Repossession. Date of
Repossession shall be the date on which the Notice of Sale is sent to the
Obligor. Repossession inventory (meaning those Accounts for which the Chase
Servicer has mailed a Notice of Sale) prior to the Transfer Date will not be
taken into consideration when calculating Losses;
1.8. New Securitization Account - shall mean each Retained
Account that is included in a New Securitization;
1.9. New Securitization Servicing Agreement - shall have the
meaning referred to in Section 4.4 hereof;
1.10. Old Securitization Account - shall mean each conditional
sales contract, retail installment sales agreement or note relating to a marine
or recreational vehicle loan, and each security agreement or preferred ship
mortgage related thereto, included in an Old Securitization;
1.11. Repurchase Account - shall mean each conditional sales
contract, retail installment sales agreement or note relating to a marine or
recreational vehicle loan, and each security agreement or preferred ship
mortgage related thereto, that was transferred by Chase in connection with an
Old Securitization, or a New Securitization or transferred to CIT or CITNY
pursuant to the Purchase Agreement and subsequently repurchased by Chase as a
result of a breach of representation and warranty made by Chase in connection
with such Old Securitization, New Securitization or the Purchase Agreement, as
the case may be;
1.12. Retained Account - shall mean each conditional sales
contract, retail installment sales agreement or note relating to a marine or
recreational vehicle loan, and each security agreement or preferred ship
mortgage related thereto, retained by Chase on or after the Closing Date, other
than (i) any such conditional sales contract, retail installment sales agreement
or note relating to a marine or recreational vehicle loan, and each security
agreement or preferred ship mortgage related thereto, transferred to CIT or
CITNY pursuant to the Purchase Agreement on the Cut-Off Date Closing Date or
(ii) any New Securitization Account.
ARTICLE II - RETENTION OF SERVICER;
SERVICER'S GENERAL OBLIGATIONS
2.1. Chase and the Chase Servicer retain the Servicer as an
independent contractor to provide the services described in this Agreement
during the term of this Agreement, and the Servicer agrees to perform such
services in accordance with the terms and conditions contained in this
Agreement.
2.2. In the performance of its duties hereunder, the Servicer
shall be an independent contractor acting on its own behalf and for its own
account. It shall have no authority, express or implied, to act in any manner or
by any means for or on behalf of Chase or the Chase Servicer in any capacity
other than as an independent contractor. It is agreed
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that the Servicer and Chase, together with the Chase Servicer, are not partners
or joint venturers, or agents or assignees of each other.
2.3. In the performance of its duties hereunder, the Servicer
shall service all Accounts in compliance with the terms of this Agreement, and
the underlying Accounts, and will comply in all material respects with all
applicable state and federal laws and regulations governing financing,
licensing, loan servicing, debt collection, credit reporting, consumer
protection, foreclosure and other disposition of collateral, and the protection
of any security interest in collateral.
2.4. Promptly after the execution and delivery of this
Agreement, the Servicer shall deliver to the Chase Servicer a list of key
officers of the Servicer that will be involved in, or responsible for, the
servicing of the Accounts, and the Chase Servicer shall deliver to the Servicer
a list of key officers and employees of the Chase Servicer who have been
authorized by Chase Servicer to receive any reports hereunder from the Servicer.
Each party shall notify the other party promptly of any changes to such list.
ARTICLE III - SERVICING OF ACCOUNTS
3.1. The Servicer shall service the Accounts with due care in
accordance with the terms of this Agreement and shall have full power and
authority, acting alone and subject only to the provisions of this Agreement and
applicable law, to do any and all things in connection with the servicing of the
Accounts that it believes to be reasonable and necessary to carry out its
obligations under this Agreement. The Servicer agrees that it shall service the
Accounts using the same standard of care that it uses to service its own loans
or credit sales secured by Boats or Recreational Vehicles, except as otherwise
specifically provided in Exhibit 3.1 hereto. The Servicer shall not make any
change to its current servicing policies and procedures which would have a
material effect on the collectibility of the Accounts, including, but not
limited to, any change to the policies and procedures set forth in Exhibit 3.1
hereto, without the prior written consent of the Chase Servicer.
3.2. The Servicer shall provide servicing of the Accounts
which will include the following: collection of principal, finance and other
charges; payment processing; payment of any applicable taxes; filing and
processing of claims under insurance policies; filing claims in bankruptcy
proceedings; making reports as set forth in Exhibit 3.1 hereto and as otherwise
reasonably required; liquidation, repossession and foreclosure; and other
services with respect to the Accounts customarily provided by servicers
servicing these types of assets.
3.3. The Chase Servicer understands and agrees that the
Servicer shall have no monetary obligation to remit to the Chase Servicer any
sums due on a Account, unless a payment is received from the Obligor, an insurer
or any other party (such as proceeds on sale of collateral) on a Account.
3.4. The Servicer shall take all actions that are necessary or
desirable to maintain continuous perfection and priority of the rights, title
and interests of the Account
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Owners (or of the originators in the case of any New Securitization Accounts) in
the Boats and Recreational Vehicles securing the Accounts, including, but not
limited to, the notation on certificates of title and the recording, filing and
refiling of all financing statements, continuation statements, preferred ship
mortgages or other instruments. In addition, if the Servicer discovers any
deficiency in the priority or perfection of the security interest in a Boat or
Recreational Vehicle constituting security for any Account or any other defect
in the documents constituting a part of any Account, which deficiency or defect
can be corrected, the Servicer shall use its best efforts to correct such
deficiency or defect.
ARTICLE IV - SUBSERVICING OF OLD SECURITIZATION ACCOUNTS;
SERVICING OF NEW SECURITIZATION ACCOUNTS
4.1. CMB and the Chase Servicer, in their respective
capacities as "Servicers" under the Pooling and Servicing Agreements, hereby
designate and appoint the Servicer as a subservicer as of the Transfer Date
under the Pooling and Servicing Agreements with respect to the Old
Securitization Accounts. The Servicer hereby agrees to perform and comply with
each and every duty and obligation of CMB or the Chase Servicer, as the case may
be, as "Servicer" under the Pooling and Servicing Agreements with respect to the
Old Securitization Accounts, except such duties and obligations which are set
forth on Exhibit 4.1 hereof as the continuing responsibilities of CMB or the
Chase Servicer. The Servicer shall have full power and authority to perform all
duties, and to exercise all rights and remedies, of CMB or the Chase Servicer,
as the case may be, as Servicer under the Pooling and Servicing Agreements,
except for such duties, rights and remedies as are reserved for CMB or the Chase
Servicer as set forth on Exhibit 4.1 hereof.
4.2. CMB and the Chase Servicer, in their respective
capacities as "Servicers" under the Pooling and Servicing Agreements with
respect to the Old Securitization Accounts, hereby agree that neither shall
consent to any material change to the provisions of the Pooling and Servicing
Agreements to which it is a party relating to the servicing of the Old
Securitization Accounts without the prior written consent of the Servicer, which
such consent shall not be unreasonably withheld.
4.3. In the event that the Servicer shall fail to perform any
obligation or satisfy any liability undertaken or assumed by the Servicer
hereunder, CMB or the Chase Servicer, as the case may be, shall remain obligated
and be liable in accordance with the terms of the Pooling and Servicing
Agreements to which it is a party without diminution of any such obligation or
liability by virtue of the appointment of the Servicer hereunder; provided,
however, that CMB or the Chase Servicer, as the case may be, shall be entitled
to indemnification of any such obligation or liability to the extent set forth
in Section 10.1 hereof.
4.4. The Servicer has agreed under the Purchase Agreement to
use its best efforts to enter into one or more agreements (each a "New
Securitization Servicing Agreement") in connection with each New Securitization
pursuant to which it will agree to service the related New Securitization
Accounts on and after the closing date with respect to
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such New Securitization. If the Servicer enters into any New Securitization
Servicing Agreement, the Servicer hereby agrees to perform and comply with each
and every duty of the "Servicer" under such New Securitization Servicing
Agreement with respect to the New Securitization Accounts subject thereto.
ARTICLE V - CONVERSION OF ACCOUNT RECORDS
AND OTHER DOCUMENTS FROM THE CHASE SERVICER TO THE SERVICER
5.1. In order to enable the Servicer to fulfill its
obligations under this Agreement, the Chase Servicer shall timely and
effectively cooperate with and assist the Servicer in, and the Servicer shall
effect, a conversion of the Accounts to the Servicer's computer system on or
before October 1, 1997.
5.2. On or prior to the Transfer Date, Chase or the Chase
Servicer shall provide to the Servicer limited powers of attorney to endorse
checks for deposit only and other instruments of payment in the Account Owners'
names, to sign other documents necessary to the continued perfection of any
security interest, to release liens upon full payment or upon resale of
collateral after repossession, and to initiate suits in the Account Owner's name
on Accounts upon which there has been a default.
5.3. The Chase Servicer and the Servicer shall produce the
following notices in mutually acceptable forms:
(a) Notices to the Obligors of the transfer of the servicing of
the Accounts to the Servicer in accordance with applicable state and
federal laws and regulations; and
(b) Notices to all insurance companies, taxing authorities and
tax sources as appropriate of the transfer of the servicing of the
Accounts to the Servicer.
5.4. On and after the Transfer Date, the Chase Servicer will
(i) continue to cooperate with and provide documents to the Servicer as
reasonably necessary in order to facilitate the servicing of the Accounts and
(ii) promptly forward to the Servicer any correspondence and payments received
by the Chase Servicer which appropriately should have been sent to the Servicer.
ARTICLE VI -- THE SERVICER'S SERVICING OBLIGATIONS
6.1. During the term hereof, the Servicer shall retain
information on its computer system relating to the Accounts (the "Computer
Files") and shall provide the Chase Servicer with on-line computer terminal
access at the Chase Servicer's office to such Computer Files.
6.2. In the event Chase or the Chase Servicer desire some
special services not specified herein, the Servicer shall use its best efforts
to provide such services if the Servicer
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reasonably concludes that such services are reasonably attainable and
technically feasible. There will be no additional fee or charge for additional
services unless the Servicer notifies Chase or the Chase Servicer, as the case
may be, in advance of providing such services of the additional charge and Chase
or the Chase Servicer agree to the charge in writing.
6.3. CMB, the Chase Servicer or the Account Owners, as set
forth in the Pooling and Servicing Agreements, may retain physical possession of
the Files. The Servicer shall maintain all documents it holds relating to the
Accounts in a safe, up-to-date manner. The Servicer may, at its sole expense,
use the services of a file storage and retention company reasonably acceptable
to the Chase Servicer. In the event the Servicer obtains any original documents
relating to the Accounts, the Servicer shall hold them in trust for the Account
Owners. Any original documents relating to the Accounts held by the Servicer
shall be maintained in fire-proof files, except those documents held by a file
storage and retention company reasonably acceptable to the Chase Servicer which
does not offer fire-proof storage. The Servicer shall exercise reasonable care
in handling and delivering the documents in its files relating to the Accounts.
Unless otherwise requested by the Chase Servicer or unless otherwise required by
governmental rule, the Servicer shall retain the documents in its files relating
to the Accounts during the time the Account Owners own the Accounts and for the
term of this Agreement. However, the Servicer shall, upon request of the Chase
Servicer, forward to the Chase Servicer the documents in its files relating to
an Account and the related repossession file after the sale of the repossessed
Boat or Recreational Vehicle. The Servicer shall maintain the privacy of the
Obligors in accordance with all applicable governmental rules. The Servicer
shall deliver any of the documents in its files relating to an Account to Chase
or the Chase Servicer upon request.
6.4. The Servicer does not warrant by its acceptance of any
original document relating to the Accounts or any copy of any such document,
forwarded to it by the Chase Servicer, or the related Account Owner, that such
document is legally valid or enforceable in any respect.
6.5. The Servicer shall retain the Computer Files and other
data and records (including, without limitation, computerized records) relating
directly to or maintained in connection with the servicing of the Accounts,
which Computer Files, data and records shall be clearly marked to reflect that
the Accounts are owned by the Account Owners, at the address of the Servicer, or
upon thirty (30) days' advance notice to the Chase Servicer at such other place
where the servicing offices of the Servicer are located and shall be readily
separable from the other files or property of the Servicer.
6.6. Upon the termination of this Agreement, the Servicer
shall, upon request of the Chase Servicer, deliver to the Chase Servicer, at the
Chase Servicer's expense (unless such termination is by the Chase Servicer for
"cause" pursuant to Section 12.3(a) hereof or is a result of a default by the
Servicer hereunder), all data and records (including, without limitation,
computerized records) created or used for the servicing of the Accounts and all
monies received by the Servicer. In addition to delivering such data, records
and monies, the Servicer shall, at the Chase Servicer's expense (unless such
termination is by the Chase Servicer for "cause" pursuant to Section 12.3(a)
hereof or is a result of a default by the
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Servicer hereunder), use reasonable efforts to effect the orderly and efficient
transfer of the servicing of the Accounts with respect to which such termination
shall have occurred to such party as may have been appointed by the Chase
Servicer to assume responsibility for such servicing, including, without
limitation, directing the Obligors to remit all payments in respect of the
Accounts to an account or address designated by the Chase Servicer.
6.7. In order to facilitate the servicing of the Accounts by
the Servicer, CMB and the Chase Servicer hereby appoint the Servicer, with
respect to any payments remitted on an Account by any Obligor or other person on
behalf of an Obligor directly to the Servicer, to retain possession of such
payment as custodian and bailee of CMB or the Chase Servicer, as the case may
be. The Servicer shall cause each of such payments to be processed and deposited
in the manner set forth in Article VII on the Business Day following receipt or
as otherwise directed by the Chase Servicer in writing.
6.8. The Servicer shall process normal payoffs of Accounts by
quoting amounts due, accepting payoff amounts, stamping the original contracts
relating to such Accounts "Paid" and returning them to Obligors, and releasing
liens as required.
6.9. If payment of any amount due with respect to an Account
is not received from a Obligor within eleven (11) days after the date such
payment is due under the Account, the Servicer shall, consistent with the
Servicer's collection policies and procedures specified in Exhibit 3.1, contact
such Obligor to effect collection and to discourage delinquencies in payments on
such Account, doing so by lawful means, including, but not limited to, the
following:
(a) Attempting to contact Obligors by telephone to encourage
payment;
(b) Mailing of past due notices as necessary;
(c) Preparing and mailing of collection letters;
(d) Mailing reminder notices to Obligors as deemed
necessary;
(e) Using skip tracing techniques to locate missing
Obligors;
(f) Using field calls directly on Obligors;
(g) Identifying and taking action on reasonable alternatives
to avoid or minimize losses; and
(h) Initiating all steps leading to termination or
foreclosure actions deemed necessary.
Upon receipt of proceeds with respect to any defaulted
Account, the Servicer shall deposit all the proceeds collected without deduction
for any fee or amount due the
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Servicer (except for retention of fees pursuant to Section 8.2 hereof), as
provided in Article VII and provide to the Chase Servicer an itemized
accounting.
6.10. Based on an Obligor's reasons for delinquency, the
Servicer may grant extensions (monthly payment deferrals) in accordance with the
criteria set forth on Exhibit 3.1 to those Obligors having temporary cash flow
problems. The Servicer shall exercise care in offering extensions so as not to
defer obvious losses. The Servicer shall provide to the Chase Servicer on the
15th day of each month a list of all extensions granted during the preceding
calendar month and the reasons for such extensions or modifications. The Chase
Servicer reserves the right to direct the Servicer with respect to loss
mitigation strategies, to require the Servicer to initiate repossession or to
direct the Servicer to refrain from repossession, based on reasonable criteria
communicated in writing from time to time.
6.11. The Servicer shall not waive or release any right to
collect any amount due under the Accounts; provided, however, that in connection
with the settlement of a defaulted Account, the Servicer may forgive a portion
of such Account if, in its discretion, it believes that the acceptance of the
settlement proceeds from the related Obligor would result in the receipt of an
amount of collections greater than the net proceeds that would result from
repossessing and liquidating the related Boat or Recreational Vehicle, taking
into account any payments that would be required by law to be remitted to the
Obligor and other expenses customarily deducted from sales proceeds in
connection with sales or other dispositions of Boats or Recreational Vehicles,
as the case may be.
6.12. In the event repossession or foreclosure proceedings are
instituted in respect of the Accounts, whether by the Servicer or otherwise,
then and until otherwise directed by the Chase Servicer, the Servicer, from the
date of the commencement thereof until the termination thereof and the
conveyance of title, or until other disposition of the Account Owner's interest
in the financed Boat or Recreational Vehicle, shall manage and protect the
financed Boat or Recreational Vehicle, including the maintenance of insurance
against loss and damage. If an insurer of any such Boat or Recreational Vehicle
shall from time to time direct the Servicer with respect to the manner or
procedure of the performance of any of the duties and services referred to in
this Agreement, the Servicer will perform such duties and services in accordance
with such direction, anything herein to the contrary notwithstanding. The
Servicer shall be paid additional reasonable compensation as agreed by the
parties and be reimbursed for its expenses if the Chase Servicer or any insurer
requests that it take actions beyond the scope of this Agreement.
6.13. Unless repossessed or liquidated in accordance herewith,
the Servicer shall commence foreclosure proceedings against, or otherwise
comparably convert the ownership of any collateral securing a defaulted Account
as to which no satisfactory arrangements can be made for collection of
delinquent payments. In connection with such foreclosure proceedings or other
conversion, the Servicer shall follow the same practices and procedures as it
does with its own loans or credit sales, except as otherwise specifically
provided in Exhibit 3.1 hereto, and shall be in compliance with all applicable
federal, state and local laws and governmental rules. The Servicer shall also
arrange the foreclosure sale of repossessed Boats and Recreational Vehicles and
Boats and Recreational Vehicles taken by
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the Servicer in full satisfaction of any debt in accordance with the criteria
set forth herein or on Exhibit 3.1. The Servicer shall utilize its best efforts
to sell repossessed collateral in such a manner as to minimize losses. The
Servicer warrants that its servicing will not prejudice the rights of the
Account Owners with respect to the Accounts, including the right to collect
deficiency amounts due under the Accounts after repossession or foreclosure.
6.14. The Servicer shall not initiate any litigation in the
name of Chase or the Chase Servicer or pursue any deficiency balance without
Chase's or the Chase Servicer's advance written consent; provided, however, that
(i) the Servicer may initiate litigation to recover possession of or to
foreclose upon collateral securing the Accounts and (ii) the Servicer may
initiate collection suits or actions to recover deficiencies, provided that any
legal counsel retained by the Servicer in connection therewith shall be
compensated on a contingency basis and the total amount of "out-of-pocket"
expenses of such counsel to be reimbursed shall not exceed the amount set forth
in Section 8.3(b) hereof. The Servicer hereby agrees that prior to the
initiation of any litigation to collect amounts owing with respect to an
Account, the Servicer shall review the files, including but not limited to the
Computer Files, relating to such Account to determine if such files indicate
that there exist facts which might constitute a defense or counterclaim in any
such litigation. If such review of the files indicates the existence of facts
which might constitute a defense or counterclaim, the Servicer shall not
initiate any litigation with respect to such Account without the prior written
consent of the Chase Servicer. The Servicer shall give the Chase Servicer prompt
written notice of all litigation including any claims or counterclaims asserted
by the Obligor or any other party.
6.15. The Servicer shall apply payments received on the
Accounts in accordance with the priorities as set forth on Exhibit 6.15 hereto,
except as otherwise provided in any New Securitization Servicing Agreement,
including the procedures for handling insurance proceeds under insurance
policies relating to the Accounts.
6.16. The Servicer agrees at its own cost and expense to
maintain adequate fidelity bond coverage of the officers and employees of the
Servicer who handle or may have occasion to handle or control any funds
collected by the Servicer or documents and papers relating to the Accounts under
this Agreement. Such fidelity bond shall protect against losses, including
forgery, theft, embezzlement and fraud and the coverage under the fidelity bond
shall be at least $5,000,000. On or prior to the Transfer Date, the Servicer
shall furnish to the Chase Servicer certification by the carrier of such
fidelity coverage attesting to the form or type of bond evidencing such
coverage, together with the amount, term, date of commencement, anniversary or
renewal date and name of insured and affirmatively assuring the Chase Servicer
that such coverage cannot be changed, other than by an increase in amount, or
cancelled without prior written notice to the Chase Servicer. Regardless of any
provisions contained in this Agreement which require the Servicer to maintain
fidelity bond coverage, the Servicer shall not be relieved of and from its
accountability and responsibility to Chase and the Chase Servicer for the proper
performance under this Agreement of the duties and obligations to be performed
hereunder by the Servicer.
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ARTICLE VII - DEPOSIT OF COLLECTIONS
7.1. Except as otherwise specified in any Pooling and
Servicing Agreement with respect to any Old Securitization Account or in any New
Securitization Servicing Agreement with respect to any New Securitization
Account, upon the Servicer's receipt of any payment on the Accounts, including
principal, interest, insurance proceeds, liquidation proceeds or any other
proceeds on any Account, however or from whomever made, the Servicer shall
within two (2) Business Days deposit such payment by wire transfer of
immediately available funds to account number 322-006716 (ABA Routing Number
021000021) at The Chase Manhattan Bank in the Chase Servicer's name. The
Servicer shall have no rights to such payments. The Servicer shall insure that
deposits into such account with respect to the Accounts will be accomplished and
recorded in such manner as to permit auditing of such transactions in accordance
with the terms hereof.
ARTICLE VIII - COMPENSATION TO THE SERVICER; ADDITIONAL
COMPENSATION TO THE SERVICER; OUT-OF-POCKET EXPENSES
8.1. In consideration of its services provided hereunder with
respect to the Old Securitization Accounts, the Chase Servicer shall pay to the
Servicer a servicing fee for each calendar month equal to one-twelfth of the
product of 0.50% and the aggregate outstanding principal balance (excluding any
separate notes or amounts due from any Obligor for taxes, insurance or other
advances) of all Old Securitization Accounts at the close of business on the
last day of the preceding calendar month. The Chase Servicer shall, upon receipt
of a bill for such service fees and/or out-of-pocket costs described in Section
8.3 hereof, remit payment to the Servicer of such amounts within 30 days of
receipt.
8.2. The Servicer shall be entitled to retain the following
fees payable in respect of the Accounts as additional compensation: late payment
fees, extension fees and transfer of equity and assumption fees accruing and
collected by the Servicer after the Transfer Date. The Servicer shall be
responsible for paying all amounts due dealers in respect of dealer
participations on the Accounts accruing on and after the Transfer Date, which
such payments shall be based upon the information recorded on the conversion
tape provided to the Servicer by the Chase Servicer as of the Transfer Date. The
Servicer shall not be responsible for paying any other amounts due dealers in
respect of dealer participations. The Servicer shall have no liability for
defenses, counterclaims, off-sets or recoupments arising under or in connection
with events which occur prior to the Transfer Date.
8.3. The Servicer shall be responsible for all of its own
expenses and costs in carrying out its obligations under this Agreement, except
that the Chase Servicer shall reimburse the Servicer for the following
"out-of-pocket" expenses:
(a) Customary or necessary repossession expenses reasonably
incurred in connection with the transporting, repair, care, custody,
control and resale of repossessed Boats or Recreational Vehicles;
provided, however, that the Servicer shall
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not incur, and the Chase Servicer shall not be obligated to reimburse
the Servicer for, expenses in excess of the dollar amounts set forth
on Exhibit 3.1, unless the express written consent of the Chase
Servicer is obtained in advance of the time such expenses are
incurred;
(b) Expenses of legal counsel retained to enforce Accounts
after default and the related court costs; provided, however, that the
Servicer shall not incur, and the Chase Servicer shall not be
obligated to reimburse the Servicer for, more than $1,000 for legal
fees on any Account, unless the express written consent of the Chase
Servicer is obtained in advance of the time such fees are incurred;
and
(c) Any amounts paid or advanced by the Servicer to pay taxes
or to satisfy any tax lien on any Boat or Recreational Vehicle.
8.4. In consideration of its services provided hereunder with
respect to the Chase Accounts and the New Securitization Accounts, the Chase
Servicer shall pay to the Servicer the fee as agreed to and specified in that
certain Fee Letter, as amended, dated as of May 9, 1997, among Chase, the Chase
Servicer and the Servicer (the "Fee Letter").
ARTICLE IX - REPRESENTATIONS AND WARRANTIES
9.1. The Servicer represents and warrants to Chase and the
Chase Servicer that as of the Closing Date and as of the Transfer Date:
(a) The Servicer (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
(ii) is qualified to transact business in each jurisdiction in which
failure to so qualify would render any Account unenforceable in such
jurisdiction and (iii) has the corporate power to own its property, to
conduct its business and to service the Accounts hereunder;
(b) The Servicer has the corporate power and authority to
enter into and perform its obligations under this Agreement and this
Agreement has been duly authorized, executed and delivered by the
Servicer and constitutes a valid and legally binding obligation of the
Servicer, enforceable in accordance with its terms;
(c) The execution, delivery and performance of this Agreement
by the Servicer will not violate any provision of any existing law or
regulation or any order or decree of any court or the charter or the
by-laws of the Servicer or any mortgage, indenture, contract or other
agreement to which the Servicer is a party or by which the Servicer and
any of its property or assets may be bound;
(d) The Servicer is not required to obtain any consent,
license, approval or authorization, or registration or declaration
with, any governmental authority, bureau or agency in connection with
the execution, delivery and performance of this Agreement;
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(e) The Servicer has, or will have prior to the Transfer Date,
sufficient personnel and equipment, including but not limited to
computer, bookkeeping and record keeping capabilities, to perform its
obligations under this Agreement; and
(f) There is no litigation or administrative proceeding of or
before any court, tribunal or governmental body pending or, to the best
of the Servicer's knowledge, threatened, which could reasonably be
expected to affect adversely the validity or enforceability of this
Agreement or the ability of Servicer to service the Accounts hereunder
in accordance with the terms hereof or which could reasonably be
expected to have a material adverse effect on the financial condition
of the Servicer.
9.2. Each of CMB, CUSA, CFHI, CFAC and the Chase Servicer
represents and warrants to the Servicer that as of the Closing Date and as of
the Transfer Date:
(a) It (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and
(ii) has the corporate power to own its property and to conduct its
business;
(b) It has the corporate power and authority to enter into and
perform its obligations under this Agreement and this Agreement has
been duly authorized, executed and delivered by it and constitutes a
valid and legally binding obligation of it, enforceable in accordance
with its terms;
(c) The execution, delivery and performance of this Agreement
by it will not violate any provision of any existing law or regulation
or any order or decree of any court or its charter or the by-laws or
any mortgage, indenture, contract or other agreement to which it is a
party or by which it and any of its property or assets may be bound;
(d) It is not required to obtain any consent, license,
approval or authorization, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery and performance of this Agreement;
(e) There is no litigation or administrative proceeding of or
before any court, tribunal or governmental body pending or, to the best
of its knowledge, threatened, which could reasonably be expected to
have a material adverse effect on the validity or enforceability of
this Agreement; and
(f) All data provided to the Servicer as to the balances of
the Accounts is correct in all material respects.
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ARTICLE X - MUTUAL INDEMNITY
10.1. The Servicer agrees to indemnify Chase and the Chase
Servicer and hold Chase and the Chase Servicer harmless from and against any and
all losses, liabilities, claims, damages and actions, including reasonable
attorneys' fees, reasonable accountants' fees and court costs, arising out of
(i) the Servicer's failure to comply with its obligations, warranties,
representations and covenants contained in this Agreement, (ii) the negligent
action taken or negligent omission of the Servicer in performing its duties
hereunder or (iii) the Servicer's erroneous calculation of the participation due
any dealer on the Accounts, provided that Chase or the Chase Servicer notifies
the Servicer immediately by telephone and thereafter in writing upon receipt of
notice of any such claim made by a dealer; provided, however, that the Servicer
shall not be liable for any losses, liabilities, claims, damages or actions
arising out of any breach by Chase or the Chase Servicer of any of their
obligations, warranties or representations in this Agreement.
10.2. Chase and the Chase Servicer agree to indemnify the
Servicer and hold the Servicer harmless from and against any and all losses,
liabilities, claims, damages and actions, including reasonable attorneys' fees,
reasonable accountants' fees, and court costs, arising out of (i) Chase or the
Chase Servicer's breach of any of their obligations, warranties, representations
and covenants contained in this Agreement, (ii) any events which occurred prior
to the Transfer Date, (iii) Chase or the Chase Servicer's assignment to the
Servicer of Authorizations for Automatic Payment relating to Automated Clearing
House electronic fund transfers from the Accounts of Obligors or (iv) any claim
by a dealer for an amount in respect of dealer participations greater than the
amount that would be payable to such dealer based upon the information recorded
on the conversion tape provided to the Servicer by the Chase Servicer, provided
that the Servicer notifies Chase and the Chase Servicer immediately by telephone
and thereafter in writing upon receipt of notice of any such claim made by a
dealer; provided, however, that neither Chase nor the Chase Servicer shall be
liable for any losses, liabilities, claims, damages or actions arising out of
any breach by the Servicer of any of its obligations, warranties or
representations in this Agreement.
ARTICLE XI - AUDIT RIGHTS: FINANCIAL STATEMENTS
11.1. At all times during the term of this Agreement, the
Servicer shall afford the Chase Servicer and the Account Owners and their
authorized agents, subject to appropriate notice, reasonable access during
normal business hours to audit the Servicer's books, records, data, premises and
operations relating to the Accounts and will cause its personnel to assist in
any examination of such records. The examination referred to in this Section
will be conducted in a timely manner which does not interfere unreasonably with
the Servicer's normal operations or customer or employee relations and shall be
at the Chase Servicer's or the Account Owner's sole expense.
11.2. The Servicer shall deliver to the Chase Servicer on or
before March 31 of each year, commencing March 31, 1998, an Officers'
Certificate stating, that (i) a review of the activities of the Servicer during
the preceding calendar year (or since execution of this
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Agreement in the case of the first such Officers' Certificate required to be
delivered) and of performance under this Agreement has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge, based
on such review, the Servicer has fulfilled all its obligations under this
Agreement throughout the period covered by such review, or, if there has been a
default in the fulfillment of any such obligations, specifying each such default
known to such officer and the nature and status thereof.
11.3. Annually on or before each March 31st, commencing March
31, 1998, so long as the Servicer shall be servicing Accounts, the Servicer
shall, at its option, either (a) provide the Chase Servicer's auditors with
adequate information and access to financial data, Account data, systems,
procedures, testing and support to enable the Chase Servicer's auditors to
provide the following described report or (b) furnish to the Chase Servicer a
statement for the most recently ended calendar year certified by a firm of
independent public accountants with respect to the Servicer to the effect that
such firm has examined certain documents and records relating to the servicing
of the Accounts and that, on the basis of an examination conducted substantially
in compliance with a recognized program for auditing the servicing of loans
similar to the Accounts, that such firm is of the opinion that such servicing
has been conducted in compliance with this Agreement except for (i) such
exceptions as such firm shall believe to be immaterial and (ii) such other
exceptions as shall be set forth in such statement.
ARTICLE XII - TERM AND TERMINATIONS
12.1. Unless sooner terminated as herein provided or by mutual
agreement, this Agreement shall continue from the date hereof during the term of
the Accounts and until all of the principal, finance charges and other charges
of all of the Accounts are paid in full, or until proceedings to foreclose are
terminated finally and title to all collateral which are the subject of such
proceeds is liquidated and received by the Chase Servicer or the Account Owner.
12.2. Notwithstanding any provision of this Agreement to the
contrary, this Agreement shall become and be terminated immediately with respect
to all Accounts other than the New Securitization Accounts upon the mailing of
written notice of termination by the party described below upon the occurrence
of any one or more of the following events:
(a) By the Chase Servicer in the event that, subject to
Section 15.7 hereof, due to a delay attributable to the Servicer, the
Transfer Date shall not have occurred on or before October 1, 1997. In
such circumstance, the Servicer will pay the Chase Servicer, promptly
after the end of each calendar year over the life of the Accounts, the
difference, if any, between (x) the fees to be paid to any third-party
substitute servicer under a servicing agreement negotiated in good
faith by Chase and such third-party substitute servicer and (y) the
product of (i) 0.50% and (ii) the quotient obtained by dividing (A) the
sum of the aggregate principal balances of all Accounts as of the close
of business on the last Business Day of each month of such calendar
year by (B) twelve (12).
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(b) By the Chase Servicer in the event of any failure by the
Servicer to make any deposit or payment, or to remit to the Chase
Servicer any payment, required to be made under the terms of this
Agreement, any Pooling and Servicing Agreement or any New
Securitization Servicing Agreement which continues unremedied for a
period of two Business Days after notice of such failure, but in any
event not more than five Business Days after receipt of written notice
of such failure; or
(c) By the Chase Servicer in the event of a failure on the
part of the Servicer to deliver reports to the Chase Servicer or the
Account Owners which failure continues unremedied for a period of five
(5) Business Days after receipt of written notice of such failure, or
(d) By the non-defaulting party, other than as a result of
voluntary proceedings (covered by (e) below), if the other party shall
be adjudged bankrupt or insolvent by a court of competent jurisdiction,
or an order shall be made by a court of competent jurisdiction for the
appointment of a receiver, liquidator or trustee of such party or of
all or substantially all of its property or approving any petition
filed against such party for its reorganization, and such adjudication
or order shall remain in force or unstayed for a period of thirty (30)
days; or
(e) By either party if the other party shall institute
proceedings for voluntary bankruptcy, or shall file a petition seeking
reorganization under the federal bankruptcy laws or for relief under
any law for the relief to debtors, or shall consent to the appointment
of a receiver of such party or of all or substantially all of its
property, or shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its debts
generally as they become due; or
(f) By the Chase Servicer if the Servicer shall assign or
delegate its rights or its duties hereunder to any Person other than an
Affiliate without the prior written consent of the Chase Servicer; or
(g) By the Chase Servicer if the Servicer shall merge with or
consolidate into any other corporation, other than a merger by the
Servicer into another wholly-owned subsidiary of The CIT Group Holdings
Inc., without the prior written consent of the Chase Servicer, which
such consent shall not be unreasonably withheld; or
(h) By the Chase Servicer if the Servicer shall sell or
otherwise dispose of all or substantially all of its property or
assets, except to another wholly owned subsidiary of The CIT Group
Holdings, Inc., without the prior written consent of the Chase
Servicer.
The Servicer agrees that if any of the events specified in subparagraphs (b)
through (h) of this Section 12.2 shall happen, it will give written notice
thereof to the Chase Servicer within five (5) days after the occurrence of such
event.
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12.3. Notwithstanding any provision of this Agreement to the
contrary, this Agreement may also become and be terminated with respect to all
Accounts other than the New Securitization Accounts upon the occurrence of any
one or more of the following events:
(a) The Chase Servicer may terminate this Agreement for
"cause" without payment of any additional compensation to the Servicer.
If the Chase Servicer terminates this Agreement for "cause" and, as a
result of such termination, a servicing systems conversion is required,
the Servicer shall pay the expenses of such conversion, including, but
not limited to, the expenses of formatting all information into a
format acceptable to the successor Servicer. "Cause" shall exist if,
during any calendar year or partial calendar year, (i) Aggregate Losses
with respect to Accounts secured by Recreational Vehicles exceed 0.80%
of the Average Annual Balance (as such term is defined in the Fee
Letter) for such calendar year or partial calendar year or (ii)
Aggregate Losses with respect to Accounts secured by Boats exceed 1.20%
of the Average Annual Balance (as such term is defined in the Fee
Letter) for such calendar year or partial calendar year. If during any
calendar year or partial calendar year (i) Aggregate Losses with
respect to Accounts secured by Recreational Vehicles exceed 0.80% of
the Average Annual Balance (as such term is defined in the Fee Letter)
or (ii) Aggregate Losses with respect to Accounts secured by Boats
exceed 1.20% of the Average Annual Balance (as such term is defined in
the Fee Letter) for such calendar year or partial calendar year, the
Chase Servicer shall, in addition to its right to terminate the
Agreement, have the right to (i) conduct a full audit of the operations
and procedures of the Servicer with respect to the Accounts and (ii)
require that the Servicer produce a detailed plan acceptable to the
Chase Servicer for reducing Losses; or
(b) Either party may terminate this Agreement with respect to
all Accounts other than the New Securitization Accounts in the event
that the other party materially defaults in the performance of any of
its respective covenants, agreements, representations, warranties,
duties or obligations hereunder, which default shall not be
substantially cured within forty-five (45) days after written notice is
received by the other party specifying the default, or, with respect to
any default which cannot be reasonably cured within forty-five (45)
days, if the defaulting party fails to diligently proceed within
forty-five (45) days to commence curing said default and thereafter to
proceed with all due diligence to substantially cure the same, then the
non-defaulting party may, by giving written notice thereof to the other
party, terminate this Agreement as of a date specified in such notice
of termination; provided, however, that in the event a breach of
warranty cannot be reasonably cured, the non-defaulting party may not
terminate this Agreement if the defaulting party indemnifies the
non-defaulting party pursuant to Article X; or
(c) Either party may terminate this Agreement with respect to
all Accounts other than the New Securitization Accounts immediately
upon notice if the other party fails to make any other payment due
under this Agreement within five (5) Business Days after receipt of
notice thereof from the party entitled to payment.
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12.4. Notwithstanding any provision of this Agreement to the
contrary, this Agreement shall become and be terminated with respect to any New
Securitization Account immediately upon the termination of the Servicer as
"Servicer" under the related New Securitization Servicing Agreement.
12.5. From and after the effective date of termination of this
Agreement pursuant to Section 12.1, 12.2 or 12.3, the Servicer shall not be
entitled to compensation for servicing the Accounts (other than the New
Securitization Accounts) after such effective date and shall be relieved of
further responsibility in connection therewith. In any such event the rights,
duties, powers and authority of the Servicer hereunder with respect to all
Accounts other than the New Securitization Accounts shall immediately terminate,
and, without limitation, the Chase Servicer is hereby authorized and empowered
to execute and deliver, on behalf of the 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
termination, whether to complete the transfer and endorsement or assignment of
the Accounts and related documents, or otherwise. The Servicer shall forthwith
upon such termination pay over to the Chase Servicer all monies collected and
held by it with respect to all Accounts other than the New Securitization
Accounts pursuant to this Agreement, and shall deliver to the Chase Servicer (a)
all documents relating to all Accounts being serviced hereunder other than the
New Securitization Accounts, a payment history on each such Account, ledger
cards, tax bills, accrual records and insurance policies and (b) a full
accounting, including a statement showing the monthly payments or other payments
collected by it and a statement of monies held by it with respect to the
Accounts other than the New Securitization Accounts. The Servicer shall
cooperate with the Chase Servicer in effecting any such termination and any
successor servicer's administration of the Accounts.
12.6. From and after the effective date of termination of this
Agreement with respect to any New Securitization Accounts pursuant to Section
12.4 hereof, the Servicer shall not be entitled to compensation for servicing
such New Securitization Accounts after such effective date and shall be relieved
of further responsibility in connection therewith. In any such event the rights,
duties, powers and authority of the Servicer hereunder with respect to such New
Securitization Accounts shall immediately terminate. The servicing of such New
Securitization Accounts shall be transferred to a successor servicer in
accordance with the related New Securitization Servicing Agreement.
ARTICLE XIII - CONFIDENTIALITY
13.1. The Servicer shall keep confidential and shall not make
available to any Person not employed by the Servicer or any Affiliate, or its
counsel, accountants or other experts, any information relating to the Accounts
or reports without the specific authorization of the Chase Servicer unless such
disclosure is necessary to comply with law or with the requirements of this
Agreement; provided, however, that the Servicer may disclose such information as
is necessary for the Servicer to perform and comply with each and every duty of
the Servicer under any New Securitization Servicing Agreement or in connection
with any New Securitization.
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13.2. In order to permit the Servicer to perform its
obligations hereunder, and to permit the Chase Servicer to assist the Servicer
in doing so, the Chase Servicer and the Servicer may from time to time have
access to each other's computer systems and certain of the data stored therein.
The Chase Servicer and the Servicer will each use its best efforts not to access
any information from the other except information reasonably needed to fulfill
the terms of this Agreement. The Servicer and the Chase Servicer each agree that
they shall treat as confidential, consistent with their duties and obligations
hereunder, any information received from the other whether obtained through the
other's computer system or otherwise and will only permit those employees
engaged in the rendering of the services hereunder, or assisting the other in
rendering services hereunder, to have access to the other party's computer
system and the information with respect to the Accounts received from the other.
ARTICLE XIV - SURVIVAL OF AGREEMENTS, WARRANTIES
COVENANTS AND REPRESENTATIONS
14.1. The covenants and indemnities of Chase, the Chase
Servicer and the Servicer that are contained in this Agreement shall survive its
termination for (i) a period of two (2) years with respect to (x) any claim
asserted by Chase or the Chase Servicer against the Servicer or (y) any claim
asserted by the Servicer against Chase or the Chase Servicer or (ii) a period of
four (4) years with respect to any claim arising as a result of a claim asserted
by a Person other than Chase, the Chase Servicer or the Servicer.
ARTICLE XV - MISCELLANEOUS
15.1. This Agreement and the Exhibits hereto set forth the
entire agreement and understanding between Chase, the Chase Servicer and the
Servicer and supersede any and all representations, promises, and statements,
oral or written, made in connection with the subject matter of this Agreement
and the negotiation hereof. No such representation, promise or statement not
written in this Agreement and the Exhibits hereto shall be binding on the
parties. Notwithstanding the foregoing, if any provision of this Agreement or
the Exhibits hereto is found to be inconsistent with any provision of the
Pooling and Servicing Agreements with respect to the Old Securitizations or the
New Securitization Servicing Agreements with respect to the New Securitization
Accounts, the provisions of such Pooling and Servicing Agreements or New
Securitization Servicing Agreements, as the case may be, shall govern. This
Agreement may not be varied or altered nor its provisions waived except by an
agreement in writing executed by duly authorized officers of Chase, the Chase
Servicer and the Servicer.
15.2. Any corporation or other entity (i) into which any party
hereto may be merged or consolidated, (ii) which may result from any merger,
conversion or consolidation to which any party hereto shall be a party or (iii)
which may succeed to all or substantially all of the business of any party
hereto, shall be bound to perform every obligation of such party under this
Agreement and shall be successor to such party hereunder without execution or
filing of any document or any further act by any of the parties hereto;
provided, however,
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that, in accordance with Section 12.2 hereof, the Servicer shall not (i) merge
with or consolidate into any other corporation, other than a merger by the
Servicer into another wholly-owned subsidiary of The CIT Group Holdings Inc.,
without the prior written consent of the Chase Servicer, which such consent
shall not be unreasonably withheld, or (ii) sell or otherwise dispose of all or
substantially all of its property or assets, except to another wholly owned
subsidiary of The CIT Group Holdings, Inc., without the prior written consent of
the Chase Servicer.
15.3. This Agreement shall be binding upon and inure to the
benefit of Chase, the Chase Servicer and the Servicer and each of their
respective successors and assigns, provided, however, no party may assign or
transfer this Agreement without the prior written consent of the others, which
such consent shall not be unreasonably withheld, except that the Servicer may
assign or transfer this Agreement to any of its Affiliates. In the event that
any such assignee or transferee shall fail to perform any obligation or satisfy
any liability undertaken or assumed by the Servicer hereunder, the Servicer
shall remain obligated and be liable in accordance with the terms of this
Agreement without diminution of any such obligation or liability by virtue of
such assignment or transfer. Any assignment or transfer in violation of this
paragraph shall constitute a material breach of this Agreement.
15.4. Captions in this Agreement are for convenience of
reference only and are not to be considered as defining or limiting in any way
the scope or intent of the provisions of this Agreement.
15.5. The waiver of any breach, term, provision, or condition
of this Agreement shall not be construed to be a waiver of any other or
subsequent breach, term, provision, or condition. All remedies afforded by this
Agreement for a breach hereof shall be cumulative.
15.6. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality and the
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
15.7. Wherever under this Agreement one party is required or
permitted to give written notice to the others, such notice shall be deemed
given upon receipt after its mailing by the party providing notice by certified
mail or registered mail (postage prepaid) or by overnight delivery service
addressed as follows:
In the case of the CMB, CUSA, CFAC, CFHI and the Chase Servicer:
c/o Chase Financial Corporation
250 W. Huron
Cleveland, Ohio 44113
Attn: Chief Financial Officer
With a copy to:
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Chase Financial Corporation
250 W. Huron
Cleveland, Ohio 44113
Attn: General Counsel
In the case of the Servicer:
The CIT Group/Sales Financing, Inc.
650 CIT Drive
Livingston, New Jersey 07039
Attn: President
With a copy to:
The CIT Group/Sales Financing, Inc.
715 South Metropolitan Avenue, Suite 150
Oklahoma City, Oklahoma 73108-2090
Attn: John Alkire, Senior Vice President
Any writing which may be mailed pursuant to the foregoing may also be delivered
by hand.
15.8. Anything in this Agreement to the contrary
notwithstanding, Chase, the Chase Servicer and the Servicer shall be excused
from performing any of their respective obligations under this Agreement, which
are prevented or delayed by any occurrence not within their respective control
including but not limited to strikes or other labor matters, destruction of or
damage to any building, natural disasters, accidents, riots, or any regulation,
rule, law, ordinance or order of any federal state or local government
authority.
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15.9. This Agreement may be executed in several counterparts,
all of which taken together shall constitute one single Agreement among the
parties hereto.
THE CHASE MANHATTAN BANK
By: /s/ William Hoefling
--------------------------------
Title: Executive Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
By: /s/ William Hoefling
--------------------------------
Title: Director
CHASE FINANCIAL ACCEPTANCE
CORPORATION
By: /s/ Thomas M. Boylan
--------------------------------
Title: Senior Vice President
CHASE FINANCIAL HOLDINGS, INC
By: /s/ Thomas M. Boylan
--------------------------------
Title: Senior Vice President
CHASE FINANCIAL MANAGEMENT
CORPORATION
By: /s/ Thomas M. Boylan
--------------------------------
Title: Senior Vice President
THE CIT GROUP/SALES FINANCING, INC.
By: /s/ Frank Garcia
--------------------------------
Title: Vice President
EXHIBIT 3.1
SERVICING STANDARDS
A. STANDARDS
1. Delinquent Accounts will be collected with the same
care and diligence as those originated and owned by
CIT. CIT staffing and expertise of staff will be
consistent with those servicing its own portfolio.
2. Accounts will be downloaded to the autodialer at 11
days delinquent. Daily passes will be made between
the hours of 7 a.m. and 11 p.m. Central Time on the
accounts to contact the customers to collect the
arrearage. After the Account has been on the
autodialer more than 10 days without contact, a
manual review will be made on the Account to
determine the appropriate course of action. Accounts
will be referred to manual collections when
potentially 60 days delinquent and will remain
assigned to a specific collector until cured. CIT
will use the same prudent judgment to cure
delinquents that it does with its own portfolio,
utilizing, including, but not limited to, deferments,
reschedules, settlements, etc.
3. Repossession will be initiated when it is evident the
customer can no longer pay or the collateral is at
risk.
4. If CIT utilizes consignment dealers to remarket
collateral, total units at one dealership cannot
exceed ten (10). All consignment dealers utilized
must have a UCC-1 agreement and a consignment
agreement satisfactory to Chase.
5. Total collection Accounts per employee cannot exceed
eight hundred (800). Collection Accounts per employee
defined as total Accounts entering collections in a
month divided by total number of collectors assigned.
B. SERVICE POWERS
1. CIT requires Chase's approval for each repossession
sale or short sale/settlement in which the present
loss to balance exceeds 60% and the loan balance
exceeds $30,000.
2. CIT requires Chase's approval for each
non-repossession sale charge off in which the charge
off exceeds $50,000.
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C. REPORTING
1. CIT must provide Chase a month-end report of all
Accounts carried 30 days or more past due that have
balances greater than $150,000. The report must
include:
(a) Account Number
(b) Customer Name
(c) Days Past Due
(d) Balance
(e) Brief Status
2. CIT must provide Chase a month-end report by product
identifying total on-hand repossession inventory
(number of units and dollar value), total
repossession sales for the month, total percent loss
to balance for month and year-to-date.
3. CIT must provide Chase a month-end report identifying
all repossessions on-hand more than 90 days.
4. CIT must provide Chase a month-end report by product
identifying total bankruptcy inventory (number of
claims and dollar value) for the month and total
litigation inventory (number of claims and dollar
value) for the month.
5. CIT must provide Chase a terminal to access
collection activity on Accounts real-time.
D. USE OF SUBCONTRACTORS/SUBSERVICERS
1. No use of subcontractors or subservicers is permitted
with the exception of the hiring of vendors to
perform an assigned function on an individual
Account, (i.e. a company to perform a repossession/an
attorney to handle a bankruptcy/litigation) or the
use of third party collection agencies to collect
post-charged off Accounts. Agency fees for primary
placement should not exceed 25%. Fee schedule for
repossessions pursuant to Section 8.3 of the
Servicing Agreement will be a standard flat rate of
$1000.00 (exclusive of sales commissions to dealers).
E. MISDIRECTED COLLECTIONS AND CORRESPONDENCE
1. All correspondence will be mailed overnight to CIT.
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F. SYSTEM CONVERSION PLAN
1. Chase is reviewing plan to provide
(a) A file from TCS with collection comments of
active accounts
(b) A file from BART with all repossession
inventory information of transfer date.
G. TRANSFER PLAN FOR COLLECTIONS/REPOSSESSION
1. CIT will have appropriate
collection/repossession/customer service personnel 1
to 3 weeks before transfer to work with counterparts
to ensure a smooth hand-off.
H. STANDARDS
1. Current account will be serviced with the same care
and diligence as those originated and owned by CITSF.
CITSF staffing and expertise will be consistent with
those servicing its own portfolio.
2. Performance measurements for the portfolio are as
follows
Call Center: Monthly Abandon Rate Less than 8%
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Average Speed of Answer Less than 45 seconds
Hours of Operation Call Center: 8:00 AM - 7:00 PM, M-F
Back Office: Resolution Rate Complete inquiries within 7-10 days
Escalated Complaints Completed in 3-5 days
Lien Releases Within normal processing (not to
exceed 45 days) or as dictated by state
parameter
Overages Due to
Customer Within normal processing (not to
exceed 60 days) or as dictated by state
parameter
I. SERVICE POWERS
1. CIT requires Chase approval for any loan balance
write off in excess of $5,000.00 due to errors and
omissions.
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J. REPORTING
1. CIT must provide Chase a month-end report of the
outstanding loan balances for the approximately 200
loans with previously placed credit/life insurance
for as long as such loans shall be in existence.
Chase agrees that such loans will be identified on
the master loan file to facilitate this reporting
requirement.
2. CIT must provide Chase a month-end report detailing:
(a) Call Volume
(b) Abandon Rate
(c) Number of Escalated Complaints
3. CIT must provide Chase a month-end report by product
detailing any significant issue that impacted the
agreed upon service quality and target resolution and
timeframe.
4. CIT must provide Chase a month-end report for each
calendar month until and including March 1998 of all
loans which were (i) originated after February 1,
1997 and (ii) paid off in full as of the previous
month. Such report shall include: customer name,
account number, dealer name, dealer number, contract
date and effective date of payoff. In connection with
such report, CIT shall also provide Chase conversion
tables for account numbers and dealer numbers.
K. NOTIFICATION
1. CIT must provide Chase (names to be provided) notice
immediately, or no later than 24 hours after the
occurrence, of:
(a) An unplanned shut down
(b) A disaster recovery situation and re-up plan
2. CIT must provide Chase (names to be provided) at
least 48 hours advance notice of:
(a) A planned shut down (meetings, etc.)
(b) A system shut down that would impact
servicing.
L. MISDIRECTED CORRESPONDENCE
1. All correspondence will be mailed to CIT, or to Chase
if received by CIT in error, overnight.
M. TRANSFER PLAN FOR SERVICING
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1. CIT will have appropriate staffing personnel hired
and trained 3 weeks prior to the transfer of
servicing.
N. TRAINING/MONITORING
1. All CIT servicing reps, including phone center and
back office will receive at least 1 week of product
and systems training.
2. Service quality evaluations will be done on all reps
at least once a month with retraining sessions
scheduled as needed based on performance monitoring.
EXHIBIT 4.1
CONTINUING RESPONSIBILITIES OF CMB AND THE CHASE SERVICER UNDER
THE OLD SECURITIZATIONS
1. CFAC Grantor Trust 1991-A. The Chase Servicer shall remain responsible
for the duties and obligations of the Servicer with respect to Sections
5.09(a), 5.09(b), 5.09(d), 5.11(a), 5.11(c), 5.11(d), 5.11(e), 5.12,
10.02 and 11.06(c) of the Pooling and Servicing Agreement, dated as of
December 1, 1991, among CFAC, as Seller, CFMC, as Servicer, and
Sumitomo Bank of New York Trust Company, a New York trust company, as
Trustee of the CFAC Grantor Trust 1991-A.
2. CBNJ Boat Loan Trust 1994-1. CMB shall remain responsible for the
duties and obligations of the Servicer with respect to Sections
5.09(a), 5.09(b), 5.09(d), 5.11(a), 5.11(c), 5.11(d), 5.11(e), 5.12,
10.02 and 11.06(c) of the Pooling and Servicing Agreement, dated as of
June 9, 1994, among CMB, as Seller and Servicer, CFMC, as Subservicer,
and Bankers Trust Company, a New York banking corporation, as Trustee
of CBNJ Boat Loan Trust 1994-1.
EXHIBIT 6.15
PAYMENT PROCESSING SEQUENCE
ALS - Precompute and Simple Interest Accounts
Primary Sequence -- INTEREST*, DEALER RESERVE INTEREST*, FORCE PLACED
INSURANCE, PRINCIPAL
Overage Sequence -- LATE CHARGES, INTEREST, FORCE PLACED INSURANCE,
PRINCIPAL
ACLS - Precompute, Simple Interest & Fixed Amortizations
Primary Sequence -- EXTENSION FEES, INTEREST, INSURANCES, PRINCIPAL, LATE
CHARGES, FORCE PLACED INSURANCE, EXPENSES
Overage Sequence -- INTEREST, LATE CHARGES, INSURANCE, FORCE PLACED
INSURANCE, EXPENSES, EXTENSIONS, PRINCIPAL
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* The sum of (i) interest and (ii) dealer reserve interest equals the total
customer finance charge.