EXECUTION COPY
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CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Seller and Servicer
and
CHASE MANHATTAN AUTO OWNER TRUST 2001-B
as Issuer
SALE AND SERVICING AGREEMENT
Dated as of November 1, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions..................................................... 1
SECTION 1.2 Usage of Terms.................................................. 20
SECTION 1.3 Simple Interest Method; Methods of Allocating Payments or
Receivables; Allocations................................... 21
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables....................................... 21
SECTION 2.2 Closing......................................................... 22
ARTICLE III
THE RECEIVABLES
SECTION 3.1 Representations and Warranties of Seller; Conditions Relating
to Receivables............................................. 22
SECTION 3.2 Repurchase Upon Breach or Failure of a Condition................ 26
SECTION 3.3 Custody of Receivable Files..................................... 26
SECTION 3.4 Duties of Servicer as Custodian................................. 27
SECTION 3.5 Instructions; Authority to Act.................................. 28
SECTION 3.6 Custodian's Indemnification..................................... 28
SECTION 3.7 Effective Period and Termination................................ 28
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1 Duties of Servicer.............................................. 29
SECTION 4.2 Collection of Receivable Payments; Refinancing.................. 29
SECTION 4.3 Realization Upon Receivables.................................... 30
SECTION 4.4 Maintenance of Security Interests in Financed Vehicles.......... 31
SECTION 4.5 Covenants of Servicer........................................... 31
SECTION 4.6 Purchase of Receivables Upon Breach............................. 31
SECTION 4.7 Servicing Fee................................................... 32
SECTION 4.8 Servicer's Certificate.......................................... 32
SECTION 4.9 Annual Statement as to Compliance............................... 33
SECTION 4.10 Annual Audit Report............................................ 33
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SECTION 4.11 Access by Holders to Certain Documentation and
Information Regarding Receivables......................... 34
SECTION 4.12 Reports to Holders and the Rating Agencies..................... 34
SECTION 4.13 Reports to the Securities and Exchange Commission.............. 35
ARTICLE V
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1 Establishment of Collection Account and Note
Distribution Account...................................... 35
SECTION 5.2 Collections.................................................... 36
SECTION 5.3 [Reserved]..................................................... 37
SECTION 5.4 Additional Deposits............................................ 37
SECTION 5.5 Distributions.................................................. 37
SECTION 5.6 Reserve Account................................................ 38
SECTION 5.7 Net Deposits................................................... 39
SECTION 5.8 Statements to Certificateholders and Noteholders............... 39
ARTICLE VI
THE SELLER
SECTION 6.1 Representations of Seller...................................... 40
SECTION 6.2 Liability of Seller; Indemnities............................... 42
SECTION 6.3 Merger or Consolidation of Seller.............................. 42
SECTION 6.4 Limitation on Liability of Seller and Others................... 42
SECTION 6.5 Seller May Own Notes and Certificates.......................... 43
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer.................................... 43
SECTION 7.2 Liability of Servicer; Indemnities............................. 44
SECTION 7.3 Merger or Consolidation of Servicer............................ 45
SECTION 7.4 Limitation on Liability of Servicer and Others................. 45
SECTION 7.5 Servicer Not To Resign......................................... 46
SECTION 7.6 Delegation of Duties........................................... 47
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1 Events of Servicing Termination................................ 47
SECTION 8.2 Indenture Trustee to Act; Appointment of Successor Servicer.... 49
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SECTION 8.3 Notification to Noteholders and Certificateholders............. 49
SECTION 8.4 Waiver of Past Defaults........................................ 49
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables; Trust Termination........ 50
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment...................................................... 51
SECTION 10.2 Protection of Title to Owner Trust Estate...................... 52
SECTION 10.3 GOVERNING LAW.................................................. 54
SECTION 10.4 Notices........................................................ 55
SECTION 10.5 Severability of Provisions..................................... 55
SECTION 10.6 Assignment..................................................... 55
SECTION 10.7 Certificates and Notes Nonassessable and Fully Paid............ 55
SECTION 10.8 Third-Party Beneficiaries...................................... 55
SECTION 10.9 Assignment to Indenture Trustee................................ 56
SECTION 10.10 Limitation of Liability of Owner Trustee and Indenture
Trustee................................................... 56
SECTION 10.11 No Petition................................................... 56
iii
SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Location of Receivable Files
EXHIBITS
Exhibit A - Form of Servicer's Certificate
Exhibit B - Form of Monthly Report
Exhibit C - Form of Collection Account Control Agreement
Exhibit D - Form of Reserve Account Control Agreement
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This SALE AND SERVICING AGREEMENT, dated as of November 1, 2001, (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement") is made between CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association having its principal executive
offices located at 000 Xxxxx Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 ("Chase
USA," the "Seller" or the "Servicer" in its respective capacities as such), and
CHASE MANHATTAN AUTO OWNER TRUST 2001-B, as issuer (the "Issuer").
W I T N E S S E T H :
- - - - - - - - - -
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Accrued Interest" on a Receivable, as of any date of determination, means
that amount of interest accrued on the Principal Balance at the related Contract
Rate but not paid by or on behalf of the Obligor.
"Administration Agreement" means the Administration Agreement, dated as of
November 1, 2001, among the Issuer, the Administrator and the Indenture Trustee,
as the same may be amended and supplemented from time to time.
"Administrator" means The Chase Manhattan Bank, a New York banking
corporation, as administrator, and its successors and assigns.
"Administration Fee" means $1,000, the fee payable to the Administrator on
each Payment Date pursuant to Section 5.5(c) for services rendered pursuant to
the Administration Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. A Person shall not be
deemed to be an Affiliate of any specified Person solely because such other
Person has the contractual right or obligation to manage such specified Person
unless such other Person controls such specified Person through equity ownership
or otherwise.
"Aggregate Net Losses" means, for any Payment Date, the amount equal to (i)
the aggregate Principal Balance of all Receivables that became Defaulted
Receivables during the
related Collection Period minus (ii) the Liquidation Proceeds allocable to
principal collected during such Collection Period with respect to any Defaulted
Receivables.
"Amount Financed" in respect of a Receivable means the amount advanced
under the Receivable toward the purchase price of the Financed Vehicle and
related costs.
"Assertion" has the meaning specified in Section 4.10.
"Authenticating Agent" has the meaning specified in Section 2.13 of the
Indenture and shall initially be the corporate trust office of Chase, and its
successors and assigns in such capacity.
"Authorized Officer" means any officer of the Owner Trustee, Indenture
Trustee or Servicer who is authorized to act on behalf of the Owner Trustee,
Indenture Trustee or Servicer, as applicable, and who is identified as such on
the list of authorized officers delivered by each such party on the Closing
Date.
"Available Interest" means, for any Payment Date, the sum of (i) that
portion of Collections on the Receivables received during the related Collection
Period allocated to interest and (ii) that portion of the Repurchase Amounts
received with respect to the Repurchased Receivables repurchased by the Seller
or purchased by the Servicer during the related Collection Period that would
have been treated as Available Interest if the Obligor thereof had prepaid such
Receivables in full on the date as of which such Receivables were repurchased or
purchased.
"Available Principal" means, for any Payment Date, the sum of (i) that
portion of Collections on the Receivables received during the related Collection
Period allocated to the principal balance of the Receivables and (ii) that
portion of the Repurchase Amounts received with respect to the Repurchased
Receivables repurchased by the Seller or purchased by the Servicer that would
have been treated as Available Principal if the Obligor thereof had prepaid such
Receivables in full on the date as of which such Receivables were repurchased or
purchased.
"Available Reserve Account Amount" shall mean, for each Payment Date, an
amount equal to the lesser of (i) the amount on deposit in the Reserve Account
and (ii) the Specified Reserve Account Balance with respect to such Payment
Date.
"Average Delinquency Percentage" means for any Payment Date, the average of
the Delinquency Percentages for such Payment Date and the preceding two (2)
Payment Dates.
"Average Net Loss Ratio" means for any Payment Date, the average of the Net
Loss Ratios for such Payment Date and the preceding two (2) Payment Dates.
"Basic Documents" means this Agreement, the Certificate of Trust, the
Indenture, the Depository Agreements, the Securities Control Agreements, the
Trust Agreement, the Administration Agreement and other documents and
certificates delivered in connection therewith.
"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, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
or Foreign Clearing Agency as described in Section 2.10 of the Indenture.
"Business Day" means a day, other than a Saturday or a Sunday, on which the
Indenture Trustee and banks located in New York, New York, Newark, Delaware and
Minneapolis, Minnesota are open for the purpose of conducting a commercial
banking business.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Codess. 3801 et seq., as amended from time to time.
"Capital Accounts" has the meaning specified in Section 5.7 of the Trust
Agreement.
"Certificate" means a certificate evidencing the beneficial interest of a
Certificateholder in the Owner Trust Estate, substantially in the form of
Exhibit A to the Trust Agreement.
"Certificate Balance" means an amount equal to $32,503,047.00 as of the
Closing Date and, thereafter, shall be an amount equal to such initial
Certificate Balance, reduced by all amounts allocable to principal previously
distributed to Certificateholders. The Certificate Balance shall also be reduced
on any Payment Date by the excess, if any, of (i) the sum of (A) the Certificate
Balance and (B) the outstanding principal amount of the Notes (in each case
after giving effect to amounts in respect of principal to be deposited in the
Certificate Distribution Account and the Note Distribution Account on such
Payment Date), over (ii) the Pool Balance as of the close of business on the
last day of the preceding Collection Period. Thereafter, the Certificate Balance
shall be increased on any Payment Date to the extent that any portion of the
Total Distribution Amount on such Payment Date is available to pay the existing
Certificateholders' Principal Carryover Shortfall, but not by more than the net
aggregate reductions in the Certificate Balance set forth in the preceding
sentence.
"Certificate Depository Agreement" means the agreement among the Issuer,
the Owner Trustee, Chase, as agent for the Depository Trust Company and The
Depository Trust Company, as the initial Clearing Agency, dated the Closing
Date, relating to the Certificates, substantially in the form attached as
Exhibit C to the Trust Agreement, as the same may be amended and supplemented
from time to time or any similar agreement with any successor Clearing Agency.
"Certificate Distribution Account" has the meaning specified in Section 5.1
of the Trust Agreement.
"Certificate Final Scheduled Payment Date" means the May 2008 Payment Date
on which the outstanding principal amount, if any, of the Certificates is
payable.
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit B to the Trust Agreement to be filed for the Issuer pursuant to Section
3810(a) of the Business Trust Statute.
"Certificate Owner" means, with respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency or Foreign Clearing Agency or on the books of a
direct or indirect Clearing Agency Participant.
"Certificate Pool Factor" as of the close of business on a Payment Date
means a eight-digit decimal figure equal to the Certificate Balance (after
giving effect to distributions made on such date) divided by the initial
Certificate Balance. The Certificate Pool Factor will be 1.00000000 as of the
Cutoff Date; thereafter, the Certificate Pool Factor will decline to reflect
reductions in the Certificate Balance.
"Certificate Rate" means 3.75% per annum.
"Certificate Register" and "Certificate Registrar" means the register
maintained and the registrar appointed pursuant to Section 3.4 of the Trust
Agreement.
"Certificateholder" means the Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent, request, waiver or demand pursuant to any of the Basic
Documents (other than pursuant to Section 4.3 of the Trust Agreement), the
interest evidenced by any Certificate registered in the name of the Seller, the
Servicer or any Person actually known by an Authorized Officer of the Owner
Trustee to be an Affiliate of the Seller or the Servicer shall not be taken into
account in determining whether the requisite percentage necessary to effect any
such consent, request or waiver shall have been obtained.
"Certificateholders' Distributable Amount" means for any Payment Date, the
sum of (x) the Certificateholders' Principal Distributable Amount and (y) the
Certificateholders' Interest Distributable Amount.
"Certificateholders' Interest Carryover Shortfall" means, (a) for the
initial Payment Date, zero, and (b) for any other Payment Date, the excess of
the Certificateholders' Interest Distributable Amount for the preceding Payment
Date over the amount in respect of the interest actually deposited in the
Certificate Distribution Account on such preceding Payment Date, plus interest
on such excess, to the extent permitted by law, at the Certificate Rate from and
including such preceding Payment Date to, but excluding, the current Payment
Date.
"Certificateholders' Interest Distributable Amount" means, for any Payment
Date, the sum of the Certificateholders' Monthly Interest Distributable Amount
for such Payment Date and the Certificateholders' Interest Carryover Shortfall
for such Payment Date.
"Certificateholders' Monthly Interest Distributable Amount" means, for any
Payment Date, one month's interest (or, in the case of the first Payment Date,
interest accrued from and including the Closing Date to, but excluding, such
Payment Date) at the Certificate Rate on the Certificate Balance on the
immediately preceding Payment Date, after giving effect to all payments of
principal to the Certificateholders on or prior to such Payment Date (or, in the
case of the first Payment Date, the Certificate Balance on the Closing Date).
Interest shall be computed on the basis of a 360 day-year of twelve 30-day
months for purposes of this definition.
"Certificateholders' Monthly Principal Distributable Amount" means, for any
Payment Date, the Certificateholders' Percentage of the Principal Distribution
Amount.
"Certificateholders' Percentage" means, for any Payment Date, 100% minus
the Noteholders' Percentage.
"Certificateholders' Principal Carryover Shortfall" means for any Payment
Date, the sum of (a) the excess of (i) the Certificateholders' Principal
Distributable Amount for the preceding Payment Date, over (ii) the amount in
respect of principal actually deposited in the Certificate Distribution Account
on such Payment Date and (b) without duplication of clause (a), the unreimbursed
portion of the amount by which the Certificate Balance has been reduced pursuant
to the second sentence of the definition thereof.
"Certificateholders' Principal Distributable Amount" means, for any Payment
Date, the sum of (i) the Certificateholders' Monthly Principal Distributable
Amount for such Payment Date and (ii) the Certificateholders' Principal
Carryover Shortfall for such Payment Date; provided that the Certificateholders'
Principal Distributable Amount shall not exceed the Certificate Balance. In
addition, on the Certificate Final Scheduled Payment Date, the principal
required to be distributed to the Certificateholders will include the lesser of
(a) any payments of principal due and remaining unpaid on each Receivable owned
by the Issuer as of the last day of the immediately preceding Collection Period
and (b) the amount that is necessary (after giving effect to the other amounts
to be deposited in the Certificate Distribution Account on such Payment Date and
allocable to principal) to reduce the Certificate Balance to zero, in either
case after giving effect to any required distribution of the Noteholders'
Principal Distributable Amount to the Note Distribution Account.
"Chase" means The Chase Manhattan Bank, a New York banking corporation, and
any successor thereto.
"Chase USA" means Chase Manhattan Bank USA, National Association.
"Class A-1 Interest Rate" means 2.18% per annum.
"Class A-1 Notes" means the Class A-1 2.18% Asset Backed Notes,
substantially in the form of Exhibit B to the Indenture.
"Class A-2 Interest Rate" means 2.44% per annum.
"Class A-2 Notes" means the Class A-2 2.44% Asset Backed Notes,
substantially in the form of Exhibit C to the Indenture.
"Class A-3 Interest Rate" means 3.09% per annum.
"Class A-3 Notes" means the Class A-3 3.09% Asset Backed Notes,
substantially in the form of Exhibit D to the Indenture.
"Class A-4 Interest Rate" means 3.80% per annum.
"Class A-4 Notes" means the Class A-4 3.80% Asset Backed Notes,
substantially in the form of Exhibit E to the Indenture.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall
be The Depository Trust Company.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other person for whom from time to time a Clearing Agency effects
book-entry transfers of securities deposited with the Clearing Agency (including
a Foreign Clearing Agency).
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means November 6, 2001.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means securities account no. 160973.1 entitled "Xxxxx
Fargo Bank Minnesota, National Association, as Indenture Trustee, Securities
Account of Chase Auto Owner Trust Series 2001-B" maintained by the Collection
Account Securities Intermediary pursuant to the Collection Account Control
Agreement or any successor securities account maintained pursuant to the
Collection Account Control Agreement.
"Collection Account Control Agreement" means the agreement among the
Issuer, Chase, as securities intermediary, and the Indenture Trustee, dated as
of November 1, 2001, relating to the Collection Account, substantially in the
form attached as Exhibit C, as the same may be amended and supplemented from
time to time.
"Collection Account Securities Intermediary" means Chase or any other
securities intermediary that maintains the Collection Account pursuant to the
Collection Account Control Agreement.
"Collection Period" means each calendar month beginning November 1, 2001
until Chase Manhattan Auto Owner Trust 2001-B shall terminate pursuant to
Article IX of the Trust Agreement.
"Collections" means all collections in respect of Receivables.
"Contract Rate" of a Receivable means the annual rate of interest stated in
such Receivable.
"Corporate Trust Office" means the the corporate trust office of the
Indenture Trustee in Minneapolis, Minnesota.
"Cutoff Date" means November 1, 2001.
"Dealer" means the dealer which sold a Financed Vehicle related to a Dealer
Receivable and which originated or assisted in the origination of such Dealer
Receivable under a Dealer Agreement.
"Dealer Agreement" means any agreement and, if applicable, assignment under
which Dealer Receivables were originated by or through a Dealer and sold to the
Seller or an affiliate of the Seller.
"Dealer Receivable" means each Receivable which was originated by the
Seller or an Affiliate of the Seller with the involvement of a Dealer.
"Debt Cancellation Policy" means a policy issued by Chase USA to the
obligor that forgives the Principal Balance of a Receivable in excess of
insurance proceeds realized upon the event of a total loss of the related
Financed Vehicle.
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Defaulted Receivable" means a Receivable (other than a Repurchased
Receivable) as to which the Servicer has determined based on its usual
collection practices and procedures, during any Collection Period, that eventual
payment in full of the Amount Financed (including accrued interest thereon) is
unlikely; provided that a Receivable shall become a Defaulted Receivable during
the calendar month in which more than 10% of any scheduled payment becomes 240
days delinquent, regardless of whether any such determination has been made.
"Definitive Notes" means Notes issued in certificated, fully registered
form as provided in Section 2.12 of the Indenture.
"Definitive Certificates" means Certificates issued in certificated, fully
registered form as provided in Section 3.12 of the Trust Agreement.
"Delaware Trustee" has the meaning specified in Section 10.1 of the Trust
Agreement.
"Delinquency Percentage" means, for any Payment Date, the sum of the
outstanding Principal Balances of all Receivables which were 60 days or more
delinquent (including Receivables, which are not Defaulted Receivables, relating
to Financed Vehicles that have been repossessed), as of the close of business on
the last day of the Collection Period immediately preceding such Payment Date,
determined in accordance with the Servicer's normal practices, such sum
expressed as a percentage of the Pool Balance as of the close of business on the
last day of such Collection Period.
"Deposit Date" means the Business Day immediately preceding each Payment
Date.
"Depositor" means the Seller in its capacity as Depositor under the Trust
Agreement.
"Depository Agreements" means, collectively, the Certificate Depository
Agreement and the Note Depository Agreement.
"Determination Date" means the 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.
"Eligible Deposit Account" means (a) a segregated identifiable trust
account established in the trust department of a Qualified Trust Institution,
which shall, except in the case of the Reserve Account, initially be Chase, and
may be maintained with Chase so long as Chase is a Qualified Trust Institution;
or (b) a separately identifiable deposit account established in the deposit
taking department of a Qualified Institution, which may be Chase so long as
Chase 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 Xxxxxx 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.
"Event of Servicing Termination" means an event specified in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" has the meaning specified in Section 8.2 of the Trust Agreement.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation or any successor
thereto.
"Final Scheduled Maturity Date" means the last day of the Collection Period
immediately preceding the Certificate Final Scheduled Payment Date.
"Financed Vehicle" means, with respect to a Receivable, the new or used
automobile or light-duty truck, together with all accessions thereto, securing
an Obligor's indebtedness under such Receivable.
"Fitch" means Fitch, Inc. and its successors and assigns.
"Fixed Note Percentage" means the percentage equivalent of a fraction
(rounded to the nearest one-one hundred thousandth of 1%) numerator of which is
the Outstanding Amount of the Class A-3 Notes and the Class A-4 Notes on the
Payment Date on which the Class A-2 Notes have been paid in full and the
denominator of which is the sum of the Outstanding Amount of the Class A-3 Notes
and the Class A-4 Notes and the Certificate Balance on the Payment Date on which
the Class A-2 Notes have been paid in full.
"FNMA" means the Federal National Mortgage Association or any successor
thereto.
"Foreign Clearing Agency" means, collectively, Clearstream and the
Euroclear Operator.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx 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 November 1, 2001, between the
Issuer and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Indenture Trustee" means, initially, Xxxxx Fargo, as Indenture Trustee
under the Indenture, or any successor Indenture Trustee under the Indenture.
"Independent" means, when used with respect to any specified Person, that
the person (a) is in fact independent of the Issuer, any other obligor upon the
Notes, the Seller and any Affiliate of any of the foregoing persons, (b) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Issuer, any such
other
obligor, the Seller or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
made by an Independent engineer, appraiser or other expert appointed by the
Issuer and approved by the Indenture Trustee in the exercise of reasonable care,
and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Agreement and that the signer is Independent
within the meaning thereof.
"Insolvency Event" means, for a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises in
respect of such Person or any substantial part of its property in an involuntary
case under any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver (including any
receiver appointed under the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended), liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (b) the commencement by such Person of a
voluntary case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by such Person to
the entry of an order for relief in an involuntary case under any such law, or
the consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making of such Person of any general assignment for the benefit of creditors, or
the failure by such Person generally to pay its debts as such debts become due,
or the taking of action by such Person in furtherance of any of the foregoing.
"Interest Rate" means the rate of interest borne by the Notes of any class.
"Investment Earnings" means, with respect to any Payment Date, the
investment earnings (net of losses and investment expenses) on amounts on
deposit in the Collection Account.
"Issuer" means Chase Manhattan Auto Owner Trust 2001-B, a Delaware business
trust, until a successor replaces it and, thereafter, means such successor and,
for purposes of any provision contained in the Indenture and required by the
TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request signed
in the name of the Issuer by any of its authorized officers and delivered to the
Indenture Trustee.
"Late Fees" means any late charges, credit related extension fees,
non-credit related extension fees or other administrative fees or similar
charges allowed by applicable law with respect to the Receivables.
"Lien" means a security interest, lien, charge, pledge or encumbrance of
any kind other than tax liens, mechanics' liens or any other liens that attach
by operation of law.
"Liquidation Proceeds" means, with respect to any Receivable, (i) insurance
proceeds, (ii) the monies collected during a Collection Period from whatever
source on a Defaulted Receivable and (iii) proceeds of a Financed Vehicle sold
after repossession, in each case net of any liquidation expenses and payments
required by law to be remitted to the Obligor.
"Moody's" means Xxxxx'x Investors Service and its successors and assigns.
"Net Loss Ratio" means, for any Payment Date, the ratio, expressed as an
annualized percentage, of (i) the Aggregate Net Losses for such Payment Date to
(ii) the average of the Pool Balances on each of the related Settlement Date and
the last day of the related Collection Period.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or a
Class A-4 Note.
"Note Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee, Chase, as agent for The Depository Trust Company and The
Depository Trust Company, as the initial Clearing Agency, dated the Closing
Date, relating to the Notes, substantially in the form of Exhibit F to the
Indenture, as the same may be amended or supplemented from time to time or any
similar agreement with any successor Clearing Agency.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1(b).
"Note Final Scheduled Payment Date" means for (a) the Class A-1 Notes, the
November 2002 Payment Date, (b) the Class A-2 Notes, the June 2004 Payment Date,
(c) the Class A-3 Notes, the November 2005 Payment Date, and (d) the Class A-4
Notes, the May 2008 Payment Date.
"Note Owner" means, with respect to a Book-Entry Note, the person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency or Foreign Clearing Agency, or on the books of a direct or indirect
Clearing Agency Participant.
"Note Pool Factor" for each class of Notes as of the close of business on a
Payment Date means an eight-digit decimal figure equal to the Outstanding Amount
of such class of Notes divided by the Outstanding Amount as of the Closing Date
of such class of Notes. The Note Pool Factor for each class of Notes will be
1.00000000 as of the Cutoff Date; thereafter, the Note Pool Factor for each
class of Notes will decline to reflect reductions in the Outstanding Amount of
such class of Notes.
"Noteholder" means the Person in whose name a Note is registered on the
Note Register.
"Noteholders' Distributable Amount" means, for any Payment Date, the sum of
the Noteholders' Principal Distributable Amount and the Noteholders' Interest
Distributable Amount for all classes of Notes.
"Noteholders' Interest Carryover Shortfall" means, for any class of Notes,
(a) for the initial Payment Date, zero, and (b) for any other Payment Date, the
excess of (x) the Noteholders' Interest Distributable Amount for the preceding
Payment Date for such class of Notes, over (y) the amount in respect of interest
actually deposited in the Note Distribution Account on such preceding Payment
Date with respect to such class of Notes, plus interest on the amount of
interest due but not paid to the Noteholders of such class on the preceding
Payment Date, to the extent permitted by law, at the applicable Interest Rate
from such preceding Payment Date through the current Payment Date.
"Noteholders' Interest Distributable Amount" means, for any Payment Date
for any class of Notes, the sum of (x) the Noteholders' Monthly Interest
Distributable Amount for such class of Notes for such Payment Date and (y) the
Noteholders' Interest Carryover Shortfall for such class of Notes for such
Payment Date.
"Noteholders' Monthly Interest Distributable Amount" means, for any Payment
Date for each class of Notes, one month's interest (or, in the case of the first
Payment Date, interest accrued from and including the Closing Date to but
excluding such Payment Date) at the related Interest Rate on the Outstanding
Amount of the Notes of such class on such Payment Date (or, in the case of the
first Payment Date, on the Closing Date). Interest for purposes of this
definition (i) on the Class A-1 Notes shall be computed on the basis of a
360-day year for the actual number of days elapsed and (ii) on the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes shall be computed on the
basis of a 360-day year of twelve 30-day months.
"Noteholders' Monthly Principal Distributable Amount" means, for any
Payment Date, the Noteholders' Percentage of the Principal Distribution Amount.
"Noteholders' Percentage" means (i) 100% for each Payment Date occurring
before the Payment Date on which the Class A-2 Notes have been paid in full,
(ii) the Fixed Note Percentage (or such greater percentage as would be necessary
to pay the Class A-2 Notes in full) on such Payment Date, (iii) the Fixed Note
Percentage after such Payment Date until all of the Notes have been paid in full
and (iv) zero thereafter; provided, however, that (x) if the amount on deposit
in the Reserve Account on any Payment Date would be, after giving effect to
distributions on such Payment Date, less than 0.50% of the Original Pool
Balance, the Noteholders' Percentage will be 100% for such Payment Date and each
Payment Date thereafter until the Notes have been paid in full or the amount on
deposit in the Reserve Account equals or exceeds the Specified Reserve Account
Balance and (y) if the Notes have been accelerated after the occurrence of an
Event of Default, the Noteholders' Percentage will be 100% for each Payment Date
thereafter until the Notes have been paid in full.
"Noteholders' Principal Carryover Shortfall" means for any Payment Date,
the excess of (x) the Noteholders' Principal Distributable Amount for the
preceding Payment Date over (y) the amount in respect of principal actually
deposited in the Note Distribution Account on such Payment Date.
"Noteholders' Principal Distributable Amount" means, for any Payment Date,
the sum of (i) the Noteholders' Monthly Principal Distributable Amount for such
Payment Date and (ii) the Noteholders' Principal Carryover Shortfall for such
Payment Date; provided that the
Noteholders' Principal Distributable Amount shall not exceed the Outstanding
Amount of the Notes. In addition, on the Note Final Scheduled Payment Date of
each class of Notes, the principal required to be deposited in the Note
Distribution Account will include the amount necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Payment Date and allocable to principal) to reduce the Outstanding Amount of
such class of Notes to zero.
"Note Register" and "Note Registrar" means the register maintained and the
registrar appointed pursuant to Section 2.4 of the Indenture.
"Obligor" on a Receivable means the purchaser or the co-purchasers of the
Financed Vehicle purchased in part or in whole by the execution and delivery of
such Receivable or any other Person who owes or may be liable for payments under
such Receivable.
"Officer's Certificate" means a certificate signed by the chairman of the
board, the president, the treasurer, the controller, any executive or senior
vice president or any vice president of the Seller or Servicer, as appropriate,
meeting the requirements of Section 11.1 of the Indenture.
"Opinion of Counsel" means a written opinion of counsel (who may be counsel
to the Seller or the Servicer) reasonably acceptable in form and substance to
the Indenture Trustee, meeting the requirements of Section 11.1 of the Indenture
(or in the case of an Opinion of Counsel delivered to the Owner Trustee,
reasonably acceptable in form and substance to the Owner Trustee).
"Optional Purchase Percentage" shall be 10%.
"Original Pool Balance" shall be $1,299,883,052.87.
"Outstanding" means, when used with respect to Notes, as of any date of
determination, all Notes theretofore authenticated and delivered under the
Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to the
Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the necessary
amount has been theretofore deposited with the Indenture Trustee or any Paying
Agent in trust for the Holders of such Notes (provided that if such Notes are to
be prepaid, notice of such prepayment has been duly given pursuant to the
Indenture or provision therefor, satisfactory to the Indenture Trustee, has been
made); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to the Indenture unless proof satisfactory
to the Indenture Trustee is presented that any such Notes are held by a bona
fide purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Notes owned
by the Issuer, any other obligor upon the
Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that an Authorized Officer of the Indenture Trustee either actually knows to be
so owned or has received written notice that such Note is so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means, when used with respect to Notes, as of any date
of determination, the aggregate principal amount of all Notes, or a class of
Notes, as applicable, Outstanding as of such date.
"Owner Trust Estate" means all right, title and interest of the Issuer in
and to the property and rights assigned to the Issuer pursuant to Article II of
this Agreement, all funds on deposit from time to time in the Trust Accounts
(other than the Note Distribution Account) and the Certificate Distribution
Account and all other property of Issuer from time to time, including any rights
of the Owner Trustee and the Issuer pursuant to this Agreement.
"Owner Trustee" means Wilmington Trust Company, 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 Indenture Trustee or any other Person that meets the
eligibility standards for the Indenture Trustee specified in Section 6.11 of the
Indenture and is authorized by the Indenture Trustee to make the payments to and
distributions from the Collection Account and the Note Distribution Account,
including payment of principal of or interest on the Notes on behalf of the
Issuer; and (b) when used in the Trust Agreement or otherwise with respect to
the Certificates, the Owner Trustee or any other paying agent or co-paying agent
appointed pursuant to Section 3.9 of the Trust Agreement, and in the case of the
Indenture with respect to the Notes, and the Trust Agreement with respect to the
Certificates, such Paying Agent shall initially be the corporate trust office of
Chase.
"Payment Date" means, in the case of the first Collection Period, December
17, 2001, 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.
"Permitted Investments" means, at any time, any one or more of the
following obligations, securities (certificated or uncertificated) or
instruments (excluding any security with the "r" symbol attached to its rating):
(i) obligations of the United States of America or any agency thereof;
provided such obligations are backed by the full faith and credit of the United
States of America;
(ii) general obligations of or obligations guaranteed as to the timely
payment of interest and principal by any state of the United States of America
or the District of Columbia then rated "A-1+" or "AAA" by Standard & Poor's,
"F1+" or "AAA" by Fitch (if rated by Fitch) and "P-1" or Aaa by Moody's;
(iii) commercial paper, other than commercial paper issued by Chase or any
of its Affiliates, which is then rated P-1 by Moody's, "F1+" by Fitch (if rated
by Fitch) and "A-1+" by Standard & Poor's;
(iv) certificates of deposit, demand or time deposits, federal funds or
banker's acceptances, other than banker's acceptances issued by Chase or any of
its Affiliates, issued by any depository institution or trust company (including
the Indenture Trustee acting in its commercial banking capacity) incorporated
under the laws of the United States or of any state thereof or incorporated
under the laws of a foreign jurisdiction with a branch or agency located in the
United States of America and subject to supervision and examination by federal
or state banking authorities which short term unsecured deposit obligations of
such depository institution or trust company are then rated P-1 by Moody's,
"F1+" by Fitch (if rated by Fitch) and "A-1+" by Standard & Poor's;
(v) demand or time deposits of, or certificates of deposit issued by, any
bank, trust company, savings bank or other savings institution; provided such
deposits or certificates of deposit are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company or other corporation the short term unsecured debt or deposits of which
are rated P-1 by Moody's, "F1+" by Fitch (if rated by Fitch) and "A-1+" by
Standard & Poor's or the long-term unsecured debt of which are rated Aaa by
Moody's, "AAA" by Fitch (if rated by Fitch) and "AAA" by Standard & Poor's;
(vii) repurchase obligations with respect to any security described in
clauses (i) or (ii) herein or any other security issued or guaranteed by the
FHLMC, FNMA or any other agency or instrumentality of the United States of
America which is backed by the full faith and credit of the United States of
America, in either case entered into with a federal agency or a depository
institution or trust company (acting as principal) described in (iv) above;
(viii) investments in money market funds, which funds (A) are not subject
to any sales, load or other similar charge; and (B) are rated at least "AAAM" or
"AAAM-G" by Standard & Poor's, "AAAV-1+" by Fitch (if rated by Fitch) and Aaa by
Moody's; and
(ix) such other investments, other than investments in Chase or any of its
affiliates, where either (A) the short-term unsecured debt or deposits of the
obligor on such investments are rated "A-1+" by Standard & Poor's, "F1+" by
Fitch (if rated by Fitch) and P-1 by Moody's.
Permitted Investments may include money market mutual funds (so long as such
fund has the ratings specified in clause (viii) hereof), including, without
limitation, the VISTA U.S.
Government Money Market Fund or any other fund for which Chase, the Indenture
Trustee or an Affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (i) Chase, Xxxxx Fargo or an Affiliate thereof charges and collects fees
and expenses from such funds for services rendered, (ii) Chase, Xxxxx Fargo or
an Affiliate thereof charges and collects fees and expenses for services
rendered pursuant to this Agreement, and (iii) services performed for such funds
and pursuant to this Agreement may converge at any time. The Indenture Trustee
specifically authorizes Chase, Xxxxx Fargo or an Affiliate thereof to charge and
collect all fees and expenses from such funds for services rendered to such
funds (but not to exceed investment earnings), in addition to any fees and
expenses Chase or Xxxxx Fargo, as applicable, may charge and collect for
services rendered pursuant to this Agreement.
"Person" means a legal person, including any individual, corporation,
limited liability company, estate, partnership, joint venture, association,
joint stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Pool Balance" as of any date of determination means, the aggregate
Principal Balance of the Receivables as of the close of business on the last day
of the preceding Collection Period, after giving effect to all payments received
from Obligors and Repurchase Amounts to be remitted by the Servicer or the
Seller, as the case may be, for such Collection Period and all losses realized
on Receivables liquidated during such Collection Period.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" means in the case of a prepayment of the Notes pursuant
to Section 10.1 of the Indenture, the Payment Date specified by the Servicer
pursuant to such Section 10.1.
"Principal Balance" of a Receivable, as of the close of business on the
last day of any Collection Period, means the Amount Financed minus that portion
of all payments received on or prior to such date allocable to principal. The
Principal Balance of a Defaulted Receivable or a Repurchased Receivable shall be
deemed to be zero, in each case, as of such date.
"Principal Distribution Amount" means, for any Payment Date, the sum of the
following amounts, without duplication: (i) Available Principal and (ii)
Aggregate Net Losses.
"Principal Prepayment" means a payment or other recovery of principal on a
Receivable (including insurance proceeds and Liquidation Proceeds applied to
principal on a Receivable) which is received in advance of its due date.
"Proceeding" means any suit in equity, action or law or other judicial or
administrative proceeding.
"Qualified Institution" means a depository institution organized under the
laws of the United States of America or any State thereof or incorporated under
the laws of a foreign jurisdiction with a branch or agency located in the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities which at all times has the
Required Deposit Rating and, in the case of any such institution organized under
the laws of the United States of America, whose deposits are insured by the
FDIC.
"Qualified Trust Institution" means an institution organized under the laws
of the United States of America or any State thereof or incorporated under the
laws of a foreign jurisdiction with a branch or agency located in the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities which at all times (i) is
authorized under such laws to act as a trustee or in any other fiduciary
capacity, (ii) has not less than one billion dollars in assets under fiduciary
management, and (iii) has a long term deposits rating of not less than "BBB-" by
Standard & Poor's, Baa3 by Moody's and "BBB-" by Fitch (if rated by Fitch).
"Rating Agency" means any of Standard & Poor's, Moody's or Xxxxx.
"Rating Agency Condition" means, with respect to any action or event, that
each Rating Agency shall have notified the Seller, the Servicer, the Indenture
Trustee and the Owner Trustee, in writing, that such action or event will not
result in reduction or withdrawal of any then outstanding rating of any
outstanding Note or Certificate with respect to which it is the Rating Agency.
"Receivable" means a retail installment sale contract or purchase money
promissory note or other promissory note and security agreement executed by an
Obligor in respect of a Financed Vehicle, and all proceeds thereof and payments
thereunder (other than interest accrued and unpaid as of the opening of business
on the Cutoff Date), which Receivable shall be identified in the Schedule of
Receivables.
"Receivable Files" means the documents specified in Section 3.3.
"Receivables Pool" means the pool of Receivables included in the Trust
Estate and all monies received thereunder on or after the Cutoff Date.
"Record Date" means, with respect to any Payment Date, the Business Day
prior to such Payment Date unless Definitive Notes or Definitive Certificates
are issued, in which case, Record Date, with respect to such Definitive Notes or
Definitive Certificates, as applicable, shall mean the last day of the
immediately preceding calendar month.
"Relevant UCC" means the Uniform Commercial Code as in effect in the
applicable jurisdiction.
"Repurchase Amount" of a Repurchased Receivable or any Receivable purchased
by the Servicer pursuant to Section 9.1, means the sum, as of the last day of
the Collection Period on which such Receivable becomes such, of the Principal
Balance thereof plus the Accrued Interest thereon.
"Repurchased Receivable" means a Receivable repurchased by the Seller
pursuant to Section 3.2 or purchased by the Servicer pursuant to Section 4.6.
"Required Deposit Rating" shall be a short-term certificate of deposit
rating from Moody's of P-1, from Fitch of "F1+" (if rated by Fitch) and from
Standard & Poor's of "A-1+," and a long-term unsecured debt rating of not less
than Aa3 by Moody's, "AA" by Fitch (if rated by Fitch) and "AA-" by Standard &
Poor's.
"Reserve Account" means securities account no. 00000000 entitled "Xxxxx
Fargo Bank Minnesota, National Association, as Indenture Trustee, Securities
Account of Chase Auto Owner Trust Series 2001-B" maintained by the Reserve
Account Securities Intermediary pursuant to the Reserve Account Control
Agreement or any successor securities account maintained pursuant to the Reserve
Account Control Agreement.
"Reserve Account Control Agreement" means the agreement among the Issuer,
Xxxxx Fargo, as securities intermediary, and the Indenture Trustee, dated as of
November 1, 2001, relating to the Reserve Account, substantially in the form
attached as Exhibit D, as the same may be amended and supplemented from time to
time.
"Reserve Account Initial Deposit" means an amount equal to $9,749,122.90.
"Reserve Account Securities Intermediary" means Xxxxx Fargo or any other
securities intermediary that maintains the Reserve Account pursuant to the
Reserve Account Control Agreement.
"Reserve Account Transfer Amount" means, for any Payment Date, an amount
equal to the lesser of (a) the amount of cash or other immediately available
funds on deposit in the Reserve Account on such Payment Date (excluding amounts
to be paid to the Seller pursuant to clause (i) of Section 5.6(d), but before
giving effect to any other withdrawals therefrom relating to such Payment Date)
and (b) the amount, if any, by which the sum of the amounts set forth in clauses
(i) through (vi) of Section 5.5(c), inclusive, exceeds the Total Distribution
Amount for such Payment Date.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary, or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale Proceeds" has the meaning specified in Section 9.1(b).
"Schedule of Receivables" means the list of Receivables attached hereto as
Schedule A.
"SFAS 140" means the Statement of Financial Accounting Standard No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Control Agreements" means, collectively, the Collection Account
Control Agreement and the Reserve Account Control Agreement.
"Securities Intermediaries" means, collectively, Chase, acting as
securities intermediary under the Collection Account Control Agreement or any
successor thereto thereunder and Xxxxx Fargo, acting as securities intermediary
under the Reserve Account Control Agreement or any successor thereto thereunder.
"Seller" means Chase Manhattan Bank USA, National Association, a national
banking association with its principal executive offices in Newark, Delaware, in
its capacity as the seller of the Receivables under this Agreement, and each
successor to Chase Manhattan Bank USA, National Association (in the same
capacity) pursuant to Section 6.3.
"Servicer" means Chase Manhattan Bank USA, National Association, a national
banking association with its principal offices in Newark, Delaware, in its
capacity as the servicer of the Receivables under this Agreement, and each
successor to Chase Manhattan Bank USA, National Association (in the same
capacity) pursuant to Section 7.3, and each successor servicer pursuant to
Section 8.2.
"Servicer's Certificate" means a certificate, substantially in the form of
Exhibit A attached hereto, completed and executed by the Servicer by its
chairman of the board, the president, treasurer, controller or any executive,
senior vice president or vice president pursuant to Section 4.8.
"Servicing Fee" with regard to a Collection Period means the fee payable to
the Servicer for services rendered during such Collection Period, determined
pursuant to Section 4.7.
"Servicing Fee Rate" means 1.00% per annum.
"Settlement Date" means, with respect to any Collection Period, the last
day of the Collection Period immediately preceding such Collection Period, and
with respect to any Payment Date, the last day of the second Collection Period
preceding the Collection Period in which such Payment Date occurs.
"Simple Interest Method" means the method of allocating a fixed level
payment to principal and interest, pursuant to which the portion of such payment
that is allocated to interest is equal to the product of the fixed rate of
interest multiplied by the unpaid Principal Balance multiplied by the period of
time elapsed since the preceding payment of interest was made, and the remainder
of such payment is allocable to principal.
"Simple Interest Receivable" means any Receivable providing for the
allocation of payments made thereunder to principal and interest in accordance
with the Simple Interest Method.
"Specified Reserve Account Balance" with respect to any Payment Date, means
1.75% of the Pool Balance as of the related Settlement Date, but in any event
will not be less than the lesser of (i) $ 9,749,122.90 and (ii) such Pool
Balance; provided that the Specified Reserve Account Balance will be calculated
using a percentage of 3.50% for any Payment Date (beginning with the February
2002 Payment Date) for which the Average Net Loss Ratio exceeds 1.75% or the
Average Delinquency Percentage exceeds 1.75%. Upon written notification to the
Indenture Trustee by the Seller, the Specified Reserve Account Balance may be
reduced to a lesser amount as determined by the Seller so long as such reduction
satisfies the Rating Agency Condition.
"Standard & Poor's" means Standard & Poor's Ratings Services and its
successors and assigns.
"Total Distribution Amount" means, for any Payment Date, the sum of
Available Interest and Available Principal for such Payment Date. The Total
Distribution Amount on any Payment Date shall exclude all payments and proceeds
(including any Liquidation Proceeds and any amounts received from Dealers with
respect to Receivables) of any Receivables the Repurchase Amount of which has
been included in the Total Distribution Amount for a prior Payment Date.
"Treasury Regulations" means, the treasury regulations promulgated under
Code.
"Trust Accounts" means, collectively, the Collection Account, the Note
Distribution Account and the Reserve Account.
"Trust Agreement" means the Amended and Restated Trust Agreement dated as
of November 1, 2001, between the Seller and the Owner Trustee, as the same may
be amended and supplemented from time to time.
"Trust Estate" means all money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including all property and
interests Granted to the Indenture Trustee), including all proceeds thereof and
the Reserve Account.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
"Xxxxx Fargo" means Xxxxx Fargo Bank Minnesota, National Association.
SECTION 1.2 Usage of Terms. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other gender; references to "writing" include printing,
typing, lithography, and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation." All references herein to Articles,
Sections, Subsections and Exhibits are references to Articles,
Sections, Subsections and Exhibits contained in or attached to this Agreement
unless otherwise specified, and each such Exhibit is part of the terms of this
Agreement.
SECTION 1.3 Simple Interest Method; Methods of Allocating Payments or
Receivables; Allocations. All allocations of payments to principal and interest
and determinations of periodic charges and the like on the Receivables shall be
based on a year with the actual number of days in such year and twelve months
with the actual number of days in each such month. Each payment on a Receivable
shall be applied first, to the payment of accrued and unpaid interest on such
Receivable, second, to reduce the scheduled principal amount outstanding on the
Receivable to the extent of the remaining scheduled payment, third, to any
outstanding fees and Late Fees under the terms of the Receivable and fourth, to
reduce the principal amount outstanding on the Receivable. Amounts paid by the
Seller or the Servicer in respect of Repurchased Receivables shall be allocated
as if the Obligor thereof had prepaid such Receivable in full on the date as of
which such Receivable was repurchased by the Seller pursuant to Section 3.2 or
purchased by the Servicer pursuant to Section 4.6 or 9.1.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables. In consideration of the Issuer's
delivery of the Notes and the Certificates to and upon the order of the Seller,
the Seller does hereby sell, transfer, assign, and otherwise convey to the
Issuer, without recourse (subject to the Seller's obligations herein):
(i) all right, title, and interest of the Seller in, to and under the
Receivables listed in the Schedule of Receivables, which is incorporated by
reference herein, all proceeds thereof and all amounts and monies received
thereon on or after the Cutoff Date (including proceeds of the repurchase of
Receivables by the Seller pursuant to Section 3.2 or the purchase of Receivables
by the Servicer pursuant to Section 4.6 or 9.1), together with the interest of
the Seller in the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Receivables and in any repossessed Financed Vehicles;
(ii) all right, title and interest of the Seller in any Liquidation
Proceeds and in any proceeds of any extended warranties, theft and physical
damage, guaranteed auto protection, credit life or credit disability policies
relating to the Financed Vehicles or the Obligors;
(iii) all right, title and interest of the Seller in any proceeds from
Dealer repurchase obligations relating to the Receivables; and
(iv) all proceeds (as defined in the Relevant UCC) of the foregoing.
In connection with such sale, the Seller agrees to record and file, at its
own expense, financing statements (and continuation statements with respect to
such financing statements when applicable) with respect to the Receivables for
the sale of accounts and chattel paper meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to perfect
the sale and assignment of the Receivables to the Issuer.
It is the intention of the Seller and the Issuer that (a) the assignment
and transfer herein contemplated constitute a sale of the Receivables, conveying
good title thereto free and clear of any liens and encumbrances, from the Seller
to the Issuer and (b) the Receivables not be part of the Seller's estate in the
event of an insolvency. In the event that such conveyance is deemed to be a
pledge to secure a loan, the Seller hereby grants to the Issuer a first priority
perfected security interest in all of the Seller's right, title and interest in,
to and under the items of property listed in clauses (i) through (iii) above,
and in all proceeds (as defined in the Relevant UCC) of the foregoing, to secure
the loan deemed to be made in connection with such pledge and, in such event,
this Agreement shall constitute a security agreement under applicable law.
SECTION 2.2 Closing. The conveyance of the Receivables shall take place at
the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, New York, New York on the Closing
Date, simultaneously with the closing of the transactions contemplated by the
underwriting agreements related to the Notes and the Certificates and the other
Basic Documents. Upon the acceptance by the Seller of the Notes and the
Certificates, the ownership of each Receivable and the contents of the related
Receivable File will be vested in the Issuer, subject only to the lien of the
Indenture.
ARTICLE III
THE RECEIVABLES
SECTION 3.1 Representations and Warranties of Seller; Conditions Relating
to Receivables.
(a) The Seller makes the following representations and warranties as to the
Receivables on which the Issuer shall rely in acquiring the Receivables. Such
representations and warranties shall speak as of the Cutoff Date unless
otherwise specified, but shall survive the sale, transfer, and assignment of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(i) Schedule of Receivables. The Schedule of Receivables identifies the
Receivables by account number, name of Obligor and remaining principal balance
of the Receivables as of the Cutoff Date and the information set forth in the
Schedule of Receivables with respect to each Receivable is true and correct in
all material respects, and no selection procedures materially adverse to the
Holders has been utilized in selecting the Receivables from all receivables
owned by the Seller which meet the selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Issuer.
(iii) Good Title. Immediately prior to the transfer and assignment of the
Receivables to the Issuer herein contemplated, the Seller has good and
marketable title to each Receivable free and clear of all Liens and rights of
others; and, immediately upon the transfer thereof, the Issuer has either (i)
good and marketable title to each Receivable, free and clear of all Liens and
rights of others, other than the Lien of the Indenture Trustee under the
Indenture, and the transfer has been perfected under applicable law or (ii) a
first priority perfected security interest in each Receivable and the proceeds
thereof.
(b) Each Receivable satisfies the following conditions as of the Cutoff
Date unless otherwise specified and such conditions shall survive the sale,
transfer and assignment of the Receivables to the Issuer and the pledge thereof
to the Indenture Trustee pursuant to the Indenture.
(i) Acquisition. Each Receivable is a Dealer Receivable acquired directly
or indirectly from or made through a Dealer located in the United States
(including the District of Columbia);
(ii) Security. Each Receivable is secured by a new or used automobile or
light-duty truck;
(iii) Maturity of Receivables. Each Receivable had a remaining maturity of
not less than ten months and not greater than seventy-two months, and (A) in the
case of each Receivable secured by new Financed Vehicles, had an original
maturity of at least twelve months and not more than seventy-three months, or
(B) in the case of each Receivable secured by used Financed Vehicles, had an
original maturity of at least twelve months and not more than sixty-six months.
(iv) Contract Rate. Each Receivable is a fully-amortizing fixed rate simple
interest contract or note that provides for level scheduled monthly payments
over its remaining term and has a Contract Rate of not more than 18.00% per
annum;
(v) No Repossessions. Each Receivable is secured by a Financed Vehicle that
had not been repossessed without reinstatement of such Receivable;
(vi) Obligor Not Subject to Bankruptcy Proceedings. Each Receivable has
been entered into by an Obligor who had not been identified on the computer
files of the Seller as in bankruptcy proceedings;
(vii) No Overdue Payments. Each Receivable had no payment that was more
than 30 days past due;
(viii) Remaining Principal Balance. Each Receivable had a remaining
Principal Balance of at least $2,000 and not greater than $100,000;
(ix) No Force Placed Insurance. Each Receivable was secured by a Financed
Vehicle that was not insured by a force placed insurance policy or any vendor's
single interest and non-filing insurance policy;
(x) Receivable Files. The Receivable Files was kept at one or more of the
locations specified in Schedule B hereto;
(xi) Characteristics of Receivables. Each Receivable (a) has been
originated in the form of a credit sales transaction by a Dealer or a purchase
money loan or other note through a Dealer located in one of the States of the
United States (including the District of Columbia) for the retail financing of a
Financed Vehicle and has been fully and properly executed by the parties
thereto, (b) if a retail installment sales contract, has been purchased by the
Seller from the originating Dealer or an Affiliate of the Seller and has been
validly assigned by such Dealer or an Affiliate of the Seller to the Seller in
accordance with its terms; (c) contains customary and enforceable provisions
such that the rights and remedies of the holder thereof are adequate for
realization against the collateral of the benefits of the security; and (d)
provides for fully amortizing level scheduled monthly payments (provided that
the payment in the last month in the life of the Receivable may be different
from the level scheduled payment) and for accrual of interest at a fixed rate
according to the Simple Interest Method;
(xii) Compliance with Laws. Each Receivable and each sale of the related
Financed Vehicle complied at the time it was originated or made, and complied on
and after the Cutoff Date, in all material respects with all requirements of
applicable federal, state, and local laws, and regulations thereunder, including
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act,
the Fair Credit Reporting Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, Federal Reserve Board Regulations B and Z, state
adaptations of the National Consumer Act and of the Uniform Consumer Credit
Code, and any other consumer credit, equal opportunity, and disclosure laws
applicable to such Receivable and sale thereof;
(xiii) Binding Obligation. Each Receivable constitutes the legal, valid,
and binding payment obligation in writing of the Obligor, enforceable by the
holder thereof in all material respects in accordance with its terms, subject,
as to enforcement, to applicable bankruptcy, insolvency, reorganization,
liquidation and other similar laws and equitable principles relating to or
affecting the enforcement of creditors' rights;
(xiv) No Government Obligor. Each Receivable is not due from the United
States of America or any State or from any agency, department, instrumentality
or political subdivision of the United States of America or any State or local
municipality, and each Receivable is not due from a business except to the
extent that such Receivable has a personal guaranty;
(xv) Security Interest in Financed Vehicle. Immediately prior to the sale
and assignment thereof to the Issuer as herein contemplated, each Receivable was
secured by a validly perfected first priority security interest in the related
Financed Vehicle in favor of or for the benefit of the Seller as secured party
(subject to administrative delays and clerical errors on the part of the
applicable governmental agency and to any statutory or other lien arising by
operation of law after the Closing Date which is prior to such security
interest), the Seller's security interest (or beneficial interest therein) is
assignable, and has been so assigned by the Seller to the Issuer, and at such
time as
enforcement of such security interest is sought, each Receivable shall be
secured by a validly perfected first priority security interest in the related
Financed Vehicle for the benefit of the Issuer (subject to administrative delays
and clerical errors on the part of the applicable governmental agency and to any
statutory or other lien arising by operation of law after the Closing Date which
is prior to such security interest);
(xvi) Receivables in Force. No Receivable has been satisfied, subordinated,
or rescinded, nor has any Financed Vehicle been released from the Lien granted
by the related Receivable, in whole or in part;
(xvii) No Waiver. No provision of a Receivable has been waived in such a
manner that such Receivable fails either to meet all of the representations and
warranties made by the Seller herein with respect thereto or to meet all of the
conditions with respect thereto pursuant to this Section 3.1(b);
(xviii) No Amendments. No Receivable has been amended except pursuant to
either instruments included in the Receivable Files or instruments to be
included in the Receivable Files pursuant to Section 4.2 (or otherwise
maintained by the Seller in the ordinary course of its business), and no such
amendment has caused such Receivable either to fail to meet all of the
representations and warranties made by the Seller herein with respect thereto or
to fail to meet all of the conditions with respect thereto pursuant to this
Section 3.1(b);
(xix) No Defenses. The Seller had no knowledge either of any facts which
would give rise to any right of rescission, setoff, counterclaim, or defense, or
of the same being asserted or threatened, with respect to any Receivable;
(xx) No Liens. The Seller had no knowledge of any Liens or claims that have
been filed, including liens for work, labor, materials or unpaid taxes relating
to a Financed Vehicle, that would be liens prior to, or equal or coordinate
with, the lien granted by the Receivable;
(xxi) No Default. Except for payment defaults continuing for a period of
not more than 30 days as of the close of business on the Cutoff Date, the Seller
has no knowledge that a default, breach, violation, or event permitting
acceleration under the terms of any Receivable exists; the Seller has no
knowledge that a continuing condition that with notice or lapse of time would
constitute a default, breach, violation, or event permitting acceleration under
the terms of any Receivable exists; and the Seller has not waived any of the
foregoing;
(xxii) Insurance. Each Receivable requires that the Obligor thereunder
maintain comprehensive, liability, theft and physical damage insurance covering
the related Financed Vehicle;
(xxiii) Lawful Assignment. No Receivable has been originated in, or is
subject to the laws of, any jurisdiction under which the sale, transfer, and
assignment of such Receivable under this Agreement or pursuant to transfers of
the Certificates or the Notes is unlawful, void or voidable;
(xxiv) All Filings Made. No filings (other than filings under the Relevant
UCC which have been made) or other actions are necessary in any jurisdiction to
give the Issuer a first perfected security interest in the Receivables;
(xxv) One Original. There is no more than one original executed copy of
each Receivable which, immediately prior to the delivery thereof to the Servicer
(as custodian for the Issuer), was in the possession of the Seller;
(xxvi) Excluded Loans. Each Receivable is not a Receivable originated by or
through a Dealer located in the State of Alabama or Maryland; and
(xxvii) No Debt Cancellation Policy. No Receivable is subject to a Debt
Cancellation Policy.
SECTION 3.2 Repurchase Upon Breach or Failure of a Condition. The Seller,
the Servicer, the Indenture Trustee or the Owner Trustee, as the case may be,
shall inform the other parties in writing, upon the discovery by the Seller, the
Servicer or an Authorized Officer of the Indenture Trustee or the Owner Trustee,
as the case may be, of either any breach of the Seller's representations and
warranties set forth in Section 3.1(a) or the failure of any Receivable to
satisfy any of the conditions set forth in Section 3.1(b) which materially and
adversely affects the Holders' interest in any Receivable. Unless the breach or
failed condition shall have been cured by the last day of the Collection Period
following the Collection Period in which such discovery occurred (or, at the
Seller's option, the last day of the Collection Period in which such discovery
occurred), the Seller shall repurchase any Receivable the Holders' interest in
which was materially and adversely affected by the breach or failed condition,
as of such last day. In consideration of the repurchase of a Receivable, the
Seller shall remit the Repurchase Amount of such Receivable as of such last day
(less any Liquidation Proceeds deposited, or to be deposited, by the Servicer in
the Collection Account with respect to such Receivable pursuant to Section 4.3)
in the manner specified in Section 5.4. The sole remedy of the Issuer, the
Indenture Trustee or the Holders with respect either to a breach of the Seller's
representations and warranties set forth in Section 3.1(a) or to a failure of
any of the conditions set forth in Section 3.1(b) shall be to require the Seller
to repurchase Receivables pursuant to this Section 3.2. The obligation of the
Seller to repurchase under this Section 3.2 shall not be dependent upon the
actual knowledge of the Seller of any breached representation or warranty and
shall exist without regard to any limitation set forth in any representation or
warranty concerning the knowledge of the Seller as to the facts stated therein.
The Owner Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Receivable
pursuant to this Section 3.2 or the eligibility of any Receivable for purposes
of this Agreement.
SECTION 3.3 Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer, upon
the execution and delivery of this Agreement, agrees to have the Servicer act as
custodian of the following
documents or instruments (the "Receivable Files") which are hereby
constructively delivered to the Issuer with respect to each Receivable:
(i) The original executed Receivable; and
(ii) Any and all other documents or records that the Seller or the
Servicer, as the case may be, shall keep on file, in accordance with its
customary procedures, relating to a Receivable, an Obligor or a Financed
Vehicle.
The Servicer hereby agrees to act as custodian and as agent for the Issuer
hereunder. The Servicer acknowledges that it holds the documents and instruments
relating to the Receivables for the benefit of the Issuer. The Issuer shall have
no responsibility to monitor the Servicer's performance as custodian and shall
have no liability in connection with the Servicer's performance of such duties
hereunder.
SECTION 3.4 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian, shall hold the
Receivable Files on behalf of the Issuer, and maintain such accurate and
complete accounts, records (either original execution documents or copies of
such originally executed documents shall be sufficient) and computer systems
pertaining to the Receivables as shall enable the Issuer to comply with its
obligations pursuant to this Agreement. In performing its duties as custodian,
the Servicer shall act with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to the receivable files of
comparable new or used automobile receivables that the Servicer services for
itself. The Servicer shall conduct, or cause to be conducted, periodic audits of
the files of all receivables owned or serviced by the Servicer which shall
include the Receivable Files held by it under this Agreement and the related
accounts, records and computer systems, in such a manner as shall enable the
Owner Trustee or the Indenture Trustee to identify all Receivable Files and such
related accounts, records and computer systems and to verify, if the Owner
Trustee or the Indenture Trustee so elects, the accuracy of the Servicer's
recordkeeping. The Servicer shall promptly report to the Owner Trustee or the
Indenture Trustee any failure on its part to hold the Receivable Files and
maintain its accounts, records, and computer systems as herein provided, and
promptly take appropriate action to remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer shall maintain each
Receivable File at one of the locations specified in Schedule B to this
Agreement, or at such other location as shall be specified to the Owner Trustee
and the Indenture Trustee by 30 days' prior written notice. The Servicer shall
make available to the Owner Trustee, the Indenture Trustee or their respective
duly authorized representatives, attorneys or auditors, the Receivable Files and
the related accounts, records and computer systems maintained by the Servicer at
such times during normal operating hours as the Owner Trustee or Indenture
Trustee shall reasonably instruct which does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations.
(c) Release of Documents. Upon instruction from the Indenture Trustee (or,
if the Notes have been paid in full, from the Owner Trustee), the Servicer shall
release any document
in the Receivable Files to the Indenture Trustee or Owner Trustee, or their
respective agents or designee, as the case may be, at such place or places as
such Person may reasonably designate as soon as reasonably practicable to the
extent it does not unreasonably interfere with the Servicer's normal operations
or customer or employee relations. The Servicer shall not be responsible for any
loss occasioned by the failure of the Owner Trustee or Indenture Trustee, or
their respective agents or designees, to return any document or any delay in
doing so.
(d) Title to Receivables. The Servicer agrees that, in respect of any
Receivable held by it as custodian hereunder, (i) the Servicer will not at any
time have or in any way attempt to assert any interest in such Receivable or the
related Receivable File, other than solely for the purpose of collecting or
enforcing the Receivable for the benefit of the Issuer and (ii) the related
Receivable File shall at all times be property of the Issuer.
SECTION 3.5 Instructions; Authority to Act. The Servicer shall be deemed to
have received proper instructions with respect to the Receivable Files upon its
receipt of written instructions signed by an Authorized Officer of the Indenture
Trustee (or, if the Notes have been paid in full, of the Owner Trustee). A
certified copy of a by-law or of a resolution of the Board of Directors of the
Owner Trustee or the Indenture Trustee, as the case may be, shall constitute
conclusive evidence of the authority of any such Authorized Officer to act and
shall be considered in full force and effect until receipt by the Servicer of
written notice to the contrary given by the Owner Trustee or the Indenture
Trustee, as the case may be.
SECTION 3.6 Custodian's Indemnification. The Servicer, as custodian, shall
indemnify the Issuer, the Owner Trustee and the Indenture Trustee for any and
all liabilities, obligations, losses, damages, payments, costs, or expenses of
any kind whatsoever that may be imposed on, incurred or asserted against the
Issuer, the Owner Trustee or the Indenture Trustee as the result of any act or
omission in any way relating to the maintenance and custody by the Servicer, as
custodian, of the Receivable Files; provided, however, that the Servicer shall
not be liable for any portion of any such amount resulting from the willful
misfeasance, bad faith, or negligence of the Issuer, the Owner Trustee or the
Indenture Trustee.
SECTION 3.7 Effective Period and Termination. The Servicer's appointment as
custodian shall become effective as of the Cutoff Date and shall continue in
full force and effect until terminated pursuant to this Section 3.7 or until
this Agreement shall be terminated. If the Servicer shall resign as Servicer
under Section 7.5 or if all of the rights and obligations of the Servicer shall
have been terminated under Section 8.1, the appointment of the Servicer as
custodian may be terminated by the Indenture Trustee or by the Holders of Notes
evidencing not less than a majority of the aggregate Outstanding Amount of the
Notes (or, if there are no Notes outstanding, the Holders of Certificates
representing not less than a majority of the Certificate Balance), in the same
manner as the Indenture Trustee or such Holders may terminate the rights and
obligations of the Servicer under Section 8.1. As soon as practicable after any
termination of such appointment, the Servicer shall, at its expense, deliver the
Receivable Files to the Issuer or the Issuer's agent at such place or places as
the Issuer may reasonably designate. Notwithstanding the termination of the
Servicer as custodian, the Owner Trustee agrees that upon any such termination,
the Issuer shall provide, or cause its agent to provide, access to the
Receivable Files to the Servicer for the purpose of carrying out its duties and
responsibilities with respect to the servicing of the Receivables hereunder.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1 Duties of Servicer. The Servicer is hereby authorized to act as
agent for the Issuer and in such capacity shall manage, service, administer and
make collections on the Receivables (other than Repurchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to comparable new or used automobile receivables that it
services for itself. The Servicer's duties shall include collection and posting
of all payments, responding to inquiries by Obligors or by federal, state, or
local governmental authorities with respect to the Receivables, investigating
delinquencies, reporting tax information to Obligors in accordance with its
customary practices, advancing costs of disposition of defaults, monitoring
Receivables in cases of Obligor defaults, accounting for collections, furnishing
monthly and annual statements to the Indenture Trustee with respect to
distributions. The Servicer shall follow its customary standards, policies, and
procedures in performing its duties as Servicer hereunder; provided that the
Servicer shall be permitted to take or to refrain from taking any action not
specified in this Agreement with respect to servicing the Receivables if such
action or inaction would not contravene any material term of this Agreement or
materially and adversely affect the interests of Holders and is not outside
customary or normal servicing procedures. Without limiting the generality of the
foregoing, the Servicer shall be authorized and empowered by the Issuer to
execute and deliver, on behalf of itself, the Owner Trustee, the Indenture
Trustee and the Holders, or any of them, any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge, and all other
comparable instruments, without recourse to the Issuer, with respect to the
Receivables or with respect to the Financed Vehicles. If the Servicer shall
commence a legal proceeding to enforce a Receivable or a Defaulted Receivable,
the Issuer shall thereupon be deemed to have automatically assigned such
Receivable and the related property conveyed to the Issuer with respect to such
Receivable to the Servicer, solely for the purpose of collection. The Owner
Trustee shall furnish the Servicer with such documents as have been prepared by
the Servicer for execution by the Owner Trustee and as are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
SECTION 4.2 Collection of Receivable Payments; Refinancing. (a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Receivables and of this Agreement as and when
the same shall become due, and shall follow such collection procedures as it
follows with respect to comparable new or used automobile receivables that it
services for itself and that are consistent with prudent industry standards. In
connection therewith, the Servicer may grant extensions, rebates or adjustments
on a Receivable without the consent of the Issuer; provided, however, that if
the Servicer extends the date for final payment by the Obligor of any Receivable
beyond the Final Scheduled Maturity Date, it shall promptly repurchase such
Receivable pursuant to Section 4.6. The Servicer is authorized in its discretion
to waive any Late Fees that may be due in the ordinary course of collecting a
Receivable; provided, further, that the Servicer shall not agree to any change
in the underlying Contract Rate on any Receivable, to any change in the
Principal Balance thereof (except with respect to a prepayment of a scheduled
payment that does not result in a deferral of any other scheduled payment), to
any reduction of the total number of payments due thereunder or, subject to the
foregoing, to any reduction of the amount of any scheduled
payment on a Receivable. In the event that at the end of the scheduled term of
any Receivable, the outstanding principal amount thereof is such that the final
payment to be made by the related Obligor is larger than the regularly scheduled
payment of principal and interest made by such Obligor, the Servicer may permit
such Obligor to pay such remaining principal amount in more than one payment of
principal and interest; provided, however, that the last such payment shall be
due on or prior to the Final Scheduled Maturity Date.
(b) Notwithstanding anything in this Agreement to the contrary, the
Servicer may refinance any Receivable by accepting a new promissory note from
the related Obligor and applying the proceeds of such refinancing to pay all
obligations in full of such Obligor under such Receivable. The receivable
created by the refinancing shall not be property of the Issuer.
SECTION 4.3 Realization Upon Receivables. The Servicer shall use reasonable
efforts, consistent with its customary servicing procedures, to repossess or
otherwise take possession of the Financed Vehicle securing any Receivable during
the calendar month in which more than 10% of any scheduled payment thereunder
becomes 90 days delinquent; provided, however that the Servicer may repossess or
otherwise take possession of the Financed Vehicle securing a Receivable (i)
earlier if (A) such Receivable becomes a Defaulted Receivable, (B) the Servicer
determines that such Financed Vehicle is in danger of being damaged, destroyed
or otherwise made unavailable for repossession or (C) the related Obligor
voluntarily surrenders such Financed Vehicle or (ii) later if (A) the Servicer
is unable to locate such Financed Vehicle, (B) the related Obligor is the
subject of a bankruptcy proceeding or (C) the Servicer otherwise defers
repossession of such Financed Vehicle in accordance with its normal and
customary servicing practices and procedures. After repossession of a Financed
Vehicle, the Servicer shall in accordance with its customary and usual practices
and procedures sell such Financed Vehicle in an auction or consign such Financed
Vehicle to a Dealer for resale as soon as is practicable after repossession,
subject to any applicable laws. The Servicer shall follow such customary and
usual practices and procedures as it shall deem necessary or advisable in
determining when and if to exercise reasonable efforts to realize upon any
recourse to Dealers. The Servicer shall be entitled to recover from proceeds all
reasonable expenses incurred by it in the course of converting the Financed
Vehicle into cash proceeds. The Liquidation Proceeds with respect to a
Receivable shall be deposited by the Servicer in the Collection Account in the
manner specified in Section 5.2 and shall be applied to reduce (or to satisfy,
as the case may be) the Repurchase Amount of the Receivable, if such Receivable
is to be repurchased by the Seller pursuant to Section 3.2, or is to be
purchased by the Servicer pursuant to Section 4.6. The foregoing shall be
subject to the provision that, in any case in which a Financed Vehicle shall
have suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Vehicle unless it shall determine in
its sole discretion that such repair and/or repossession will increase the
Liquidation Proceeds of the related Receivable by an amount equal to or greater
than the amount of such expenses.
SECTION 4.4 Maintenance of Security Interests in Financed Vehicles. The
Servicer, in accordance with its customary servicing procedures, shall take such
steps as are necessary to maintain perfection of the first priority security
interest of the Seller created in any Financed Vehicle which secures a
Receivable. The Owner Trustee, on behalf of the Issuer, and the Indenture
Trustee hereby authorize the Servicer, and the Servicer hereby agrees, to take
such steps as are necessary to re-perfect such security interest in the event of
the relocation of a
Financed Vehicle or for any other reason, in either case, when the Servicer has
knowledge of the need for such re-perfection. In the event that the assignment
of a Receivable to the Issuer and by the Issuer to the Indenture Trustee
pursuant to the Indenture is insufficient without a notation on the related
Financed Vehicle's certificate of title, or without fulfilling any additional
administrative requirements under the laws of the State in which the Financed
Vehicle is located, to grant to the Indenture Trustee a perfected security
interest in the related Financed Vehicle, the Seller and Servicer hereby agree
that the Seller's listing as the secured party on the certificate of title is
deemed to be in its capacity as agent of the Indenture Trustee and the Servicer
further agrees to hold such certificate of title as the Indenture Trustee's
agent and custodian; provided, however, that the Servicer shall not, nor shall
the Owner Trustee, the Indenture Trustee or Holders have the right to require
that the Servicer, make any such notation on the related Financed Vehicles'
certificate of title or fulfill any such additional administrative requirement
of the laws of the State in which a Financed Vehicle is located.
SECTION 4.5 Covenants of Servicer. The Servicer hereby makes the following
covenants on which the Issuer will rely in accepting the Receivables:
(i) Security Interest to Remain in Force. The Financed Vehicle securing
each Receivable shall not be released from the security interest granted by the
Receivable in whole or in part except if such Financed Vehicle is substituted in
whole by the manufacturer, dealer or seller as a result of mechanical defects or
a total loss of the Financed Vehicle because of accident or theft or as
otherwise contemplated herein;
(ii) No Impairment. The Servicer shall not impair the rights of the Issuer,
the Indenture Trustee or any Holder in the Receivables; and
(iii) Extensions; Defaulted Receivables. The Servicer shall not increase
the number of payments under a Receivable, nor increase the Amount Financed
under a Receivable, nor extend or forgive payments on a Receivable or otherwise
amend the terms of any Receivable, except as provided in Section 4.2.
SECTION 4.6 Purchase of Receivables Upon Breach. The Seller, the Servicer,
the Indenture Trustee or the Owner Trustee, as the case may be, shall inform the
other parties promptly, in writing, upon the discovery by the Seller, the
Servicer or an Authorized Officer of the Indenture Trustee or the Owner Trustee,
as the case may be, of any breach by the Servicer of its covenants under Section
4.5 which materially and adversely affects the interest of the Holders in any
Receivable (for this purpose, any breach of the covenant set forth in Section
4.5(iii) shall be deemed to materially and adversely affect the interest of the
Holders in a Receivable). Except as otherwise specified in Section 4.2, unless
the breach shall have been cured by the last day of the Collection Period
following the Collection Period in which such discovery occurred (or, at the
Servicer's election, the last day of the Collection Period in which such
discovery occurred), the Servicer shall purchase any Receivable materially and
adversely affected by such breach as of such last day. In consideration of the
purchase of such Receivable, the Servicer shall remit the Repurchase Amount
(less any Liquidation Proceeds deposited, or to be deposited, by the Servicer in
the Collection Account with respect to such Receivable pursuant to Section 4.3)
in the manner specified in Section 5.4. The sole remedy of the Issuer, the Owner
Trustee, the Indenture Trustee or the Holders against the Servicer with respect
to a breach pursuant to
Section 4.2 or 4.5 shall be to require the Servicer to purchase Receivables
pursuant to this Section 4.6. The Owner Trustee shall have no duty to conduct
any affirmative investigation as to the occurrence of any condition requiring
the repurchase of any Receivable pursuant to this Section 4.6 or the eligibility
of any Receivable for purposes of this Agreement.
SECTION 4.7 Servicing Fee. The Servicing Fee for a Collection Period shall
be payable on the related Payment Date pursuant to Section 5.5 and shall equal
the sum of (i) the product of one-twelfth of the Servicing Fee Rate and the Pool
Balance as of the related Settlement Date and (ii) Late Fees received from
Obligors during such Collection Period. In addition, as part of the Servicing
Fee, the Servicer shall be entitled to receive on each Payment Date Investment
Earnings when and as paid on amounts on deposit in the Collection Account or
earned on collections pending deposit in the Collection Account. The Servicer
shall be required to pay from its own account all expenses incurred by it in
connection with its activities hereunder (including fees and disbursements of
independent accountants and auditors, taxes imposed on the Servicer, and other
costs incurred in connection with administering and servicing the Receivables)
and the fees and disbursements of the Issuer, the Administrator, the Owner
Trustee, the Indenture Trustee, the Owner Trustee's and the Indenture Trustee's
respective counsel, the Securities Intermediaries, the Paying Agent, the
Authenticating Agent, the Note Registrar and the Certificate Registrar except
for United States federal, state and local income and franchise taxes, if any,
imposed on the Issuer or any Holder or any expenses in connection with realizing
upon Receivables under Section 4.3.
SECTION 4.8 Servicer's Certificate. On or before each Determination Date,
the Servicer shall deliver to the Indenture Trustee, the Owner Trustee, the
Paying Agent and the Rating Agencies a Servicer's Certificate, substantially in
the form of Exhibit A, for the Collection Period preceding such Determination
Date, containing all information necessary to make the distributions pursuant to
Section 5.5, and all information necessary for the Paying Agent to send
statements to Holders pursuant to Section 5.8. The Servicer shall deliver to the
Rating Agencies any information, to the extent it is available to the Servicer,
that the Rating Agencies reasonably request in order to monitor the Issuer. The
Servicer shall also specify each Receivable which the Seller or the Servicer is
required to repurchase or purchase, as the case may be, as of the last day of
the preceding Collection Period and each Receivable which the Servicer shall
have determined to be a Defaulted Receivable during the preceding Collection
Period. Subsequent to the Closing Date, the form of Servicer's Certificate may
be revised or modified to cure any ambiguities or inconsistencies between such
form and this Agreement; provided, however, that no material information shall
be deleted from the form of Servicer's Certificate. In the event that the form
of Servicer's Certificate is revised or modified in accordance with the
preceding sentence, a form thereof, as so revised or modified, shall be provided
to the Owner Trustee, the Paying Agent, the Indenture Trustee and each Rating
Agency.
SECTION 4.9 Annual Statement as to Compliance. (a) The Servicer shall
deliver to a firm of independent certified public accountants, on or before
March 31 of each year commencing March 31, 2002, a certificate signed by the
chairman of the board, the president, the treasurer, the controller, any
executive or senior vice president or any vice president of the Servicer,
stating that (a) a review of the activities of the Servicer during the year
ended the preceding December 31 (or the period since the Cutoff Date in the case
of the first such certificate) and of its performance under this Agreement has
been made under such officer's supervision and (b) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its obligations
in all material respects under this Agreement throughout such year (or the
period since the Cutoff Date in the case of the first such
certificate), or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Indenture Trustee, the Owner Trustee
and each Rating Agency promptly after having obtained knowledge thereof, but in
no event later than five Business Days thereafter, an Officer's Certificate
specifying any event which with the giving of notice or lapse of time, or both,
would become an Event of Servicing Termination under Section 8.1. The Seller
shall deliver to the Indenture Trustee and the Owner Trustee, promptly after
having obtained knowledge thereof, but in no event later than five Business Days
thereafter, an Officer's Certificate specifying any event which with the giving
of notice or lapse of time, or both, would become an Event of Servicing
Termination under Section 8.1.
SECTION 4.10 Annual Audit Report. The Servicer shall cause a firm of
independent public accountants (which may provide other services to the Servicer
or the Seller) to prepare a report (with a copy of the certificate described in
Section 4.9(a) attached) addressed to the Board of Directors of the Servicer,
for the information and use of the Indenture Trustee, the Owner Trustee and the
Rating Agencies on or before March of each year, beginning March 31, 2002, to
the effect that, with respect to the twelve months ended the preceding December
31 (or the period since the Cutoff Date, in the case of the first such
certificate), such firm has either (A) examined a written assertion by the
Servicer about the effectiveness of the Servicer's internal control structure
over the processing and reporting of transactions relating to securitized
automobile loans with respect to the criteria set forth by the Servicer (the
"Assertion") and that, on the basis of such examination, such firm is of the
opinion that the Servicer's Assertion is fairly stated in all material respects
except for such exceptions as shall be set forth in such firm's report, or (B)
such firm has performed the following procedures:
1. For a sample of daily cash receipts during the preceding calendar year:
a. Trace total cash receipts to deposits on bank statements.
b. Agree cash receipts for securitized loans to computer reports.
c. Trace cash receipts for securitized loans to disbursements to the
Owner Trustee and the Indenture Trustee.
2. For a sample of monthly cash receipt reports:
a. Agree total cash receipts per the cash receipt reports to "Total
Payments From Obligors Applied to Collection Period" per monthly
Servicer Certificates.
b. Agree total principal payments per the cash receipt reports to
"Principal Payments" per monthly Servicer Certificates.
3. For a sample of loans delinquent 30 days or more and for a sample of
loans in repossession status, selected from the loan delinquency report
or a new repossession report, as applicable, at a point in time, trace
loan number to inclusion in the loan collection system.
The determination of which of the two alternative reports to be prepared
and delivered, and the size of each sample to be tested, shall be decided in the
sole discretion of the Servicer. The report of the independent certified public
accountants shall also indicate that such accounting firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.11 Access by Holders to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Holders access to the
Receivable Files in such cases where the Holders shall be required by applicable
statutes or regulations to have access to such documentation. Access by the
Holders shall be afforded without charge, but only upon reasonable request and
during normal business hours which does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations. Nothing in this
Section 4.11 shall affect the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors, and
the failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section 4.11.
SECTION 4.12 Reports to Holders and the Rating Agencies. (a) The Indenture
Trustee or the Owner Trustee, as applicable, shall provide to any Holder who so
requests in writing (addressed to the Corporate Trust Office of such trustee) a
copy of any Servicer's Certificate described in Section 4.8, of the annual
statement described in Section 4.9(a), or of the annual report described in
Section 4.10. The Indenture Trustee or the Owner Trustee, as applicable, may
require the Holder to pay a reasonable sum to cover the cost of the Indenture
Trustee's or the Owner Trustee's complying with such request, as applicable. (b)
The Indenture Trustee or the Owner Trustee, as applicable, shall forward to the
Rating Agencies the statement to Holders described in Section 5.8 and any other
reports it may receive pursuant to this Agreement to (i) Standard & Poor's,
Standard & Poor's Ratings Service, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
(ii) Moody's, ABS Monitoring Dept., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and (iii) Fitch, Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
SECTION 4.13 Reports to the Securities and Exchange Commission. The
Servicer shall, on behalf of the Issuer, cause to be filed with the Commission
any periodic reports required to be filed under the provisions of the Exchange
Act and the rules and regulations of the Securities and Exchange Commission
thereunder.
ARTICLE V
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1 Establishment of Collection Account and Note Distribution
Account.(a) On or prior to the Closing Date, the Issuer, the Collection Account
Securities Intermediary and the Indenture Trustee shall have entered into the
Collection Account Control Agreement pursuant to which the Collection Account
shall be established and maintained for the benefit of the Noteholders and the
Certificateholders. If the depositary of the Collection Account ceases to be
either a Qualified Institution or a Qualified Trust Institution, as applicable,
the Issuer
shall cause the Collection Account to be moved to a Qualified Institution or a
Qualified Trust Institution and the Indenture Trustee shall cause the depositary
maintaining the new Collection Account to assume the obligations of the existing
Collection Account Securities Intermediary under the Collection Account Control
Agreement unless the Rating Agency Condition is satisfied in connection with
such depositary's ceasing to be a Qualified Institution or a Qualified Trust
Institution, as the case may be. All amounts held in the Collection Account
shall be invested in accordance with the Collection Account Control Agreement at
the written direction of the Servicer to the extent provided in Section 8.3(a)
and Section 8.3(c) of the Indenture in Permitted Investments that mature not
later than the Deposit Date next succeeding the date of investment except, if
the Collection Account Securities Intermediary and the Indenture Trustee are the
same Person, investments on which the Indenture Trustee is the obligor
(including repurchase agreements on which the Indenture Trustee, in its
commercial capacity, is liable as principal) may mature on the next succeeding
Payment Date; provided, however, that once such amounts have been invested in
Permitted Investments, such Permitted Investments must be held or maintained
until they mature on or before the dates described above.
(b) On or prior to the Closing Date, the Servicer shall establish and
maintain for the benefit of the Noteholders, in the name of the Indenture
Trustee, an Eligible Deposit Account for the deposit of distributions to the
Noteholders (the "Note Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Noteholders. The Note Distribution Account shall be established initially at
Chase. Should any depositary of the Note Distribution Account or the Certificate
Distribution Account (including Chase (or an Affiliate thereof)) cease to be
either a Qualified Institution or a Qualified Trust Institution, as applicable,
then the Servicer shall, with the Seller's assistance as necessary, cause the
related account to be moved to a Qualified Institution or a Qualified Trust
Institution, unless the Rating Agency Condition is satisfied in connection with
such depositary's ceasing to be a Qualified Institution or a Qualified Trust
Institution, as the case may be. Amounts on deposit in the Note Distribution
Account shall not be invested.
(c) The Indenture Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Note Distribution Account and in
all proceeds thereof and all such funds, investments, proceeds and income shall
be part of the Owner Trust Estate.
SECTION 5.2 Collections. (a) The Servicer shall remit daily within
forty-eight hours of receipt to the Collection Account all Collections collected
during the Collection Period. Chase USA has requested that, so long as it is
acting as the Servicer, the Servicer be permitted to make remittances of
Collections on a less frequent basis than that specified in the immediately
preceding sentence. It is understood that such less frequent remittances may be
made only on the specific terms and conditions set forth below in this Section
5.2 and only for so long as such terms and conditions are fulfilled.
Accordingly, notwithstanding the provisions of the first sentence of this
Section 5.2, the Servicer shall remit such collections to the Collection Account
in Automated Clearinghouse Corporation next-day funds or immediately available
funds no later than 11:00 a.m., New York City time, on the Deposit Date, but
only for so long as (i) the short-term certificate of deposit ratings of the
Servicer are at least P-1 by Moody's, "F1" by Fitch (if rated by Fitch) and
"A-1" by Standard & Poor's, or the Rating Agency Condition is satisfied as a
result of Collections being remitted on a monthly, rather than daily, basis and
(ii) the Servicer shall be Chase USA or Chase. Upon remittance by the Servicer
of Collections to the Collection
Account pursuant to the preceding sentence, the Paying Agent shall provide
written notice to the Indenture Trustee and the Owner Trustee no later than 11
a.m., New York City time, on each Deposit Date, setting forth the amounts
remitted by the Servicer on such date and, if the Paying Agent fails to provide
the Indenture Trustee and the Owner Trustee, with such written notice by 12
noon, New York City time, on such Deposit Date, then the Indenture Trustee and
the Owner Trustee shall assume that no deposits were made to the Collection
Account pursuant to this Section 5.2. For purposes of this Section 5.2 the
phrase "payments made on behalf of the Obligors" shall mean payments made by
Persons other than the Seller or the Servicer.
(b) Notwithstanding anything in this Agreement to the contrary, if the
Servicer inadvertently deposits amounts that it mistakenly believes are
Collections resulting in the payment in full of a Receivable, and (i) the
Servicer discovers its error prior to the Payment following such deposit, the
Indenture Trustee, at the written direction of the Servicer, shall withdraw such
amounts and pay them to the Servicer or (ii) the Servicer shall be deemed to
have purchased such Receivable pursuant to Section 4.6 as of the last day of the
Collection Period during which such error shall have occurred.
SECTION 5.3 [Reserved]
ECTION 5.4 Additional Deposits. The Servicer, or the Seller, as the case
may be, shall deposit into the Collection Account the aggregate Repurchase
Amount pursuant to Sections 3.2, 4.6 and 9.1(a), as applicable. All remittances
shall be made to the Collection Account, in Automated Clearinghouse Corporation
next-day funds or immediately available funds, no later than 11 a.m., New York
City time, on the Deposit Date.
SECTION 5.5 Distributions. (a) No later than 12 noon, New York City time,
on each Determination Date, the Servicer shall calculate all amounts required to
determine the amounts to be withdrawn from the Reserve Account (if any) and
deposited into the Collection Account and the amounts to be withdrawn from the
Collection Account and paid to the Servicer and the Administrator, deposited
into the Note Distribution Account and the Certificate Distribution Account
and/or paid to the Seller pursuant to Section 5.6(d) with respect to the next
succeeding Payment Date.
(b) On each Deposit Date, the Servicer shall instruct the Indenture Trustee
in writing (based on the information contained in the Servicer's Certificate
delivered on the related Determination Date pursuant to Section 4.8) to withdraw
from the Reserve Account and deposit in the Collection Account the Reserve
Account Transfer Amount (if any) for the related Payment Date, and the Indenture
Trustee shall so withdraw and deposit the Reserve Account Transfer Amount for
such Payment Date.
(c) Not later than 11:00 a.m., New York City time, on each Payment Date, at
the Servicer's direction, the Indenture Trustee, or the Paying Agent on behalf
of the Indenture Trustee, shall cause to be made the following distributions, to
the extent of the Total Distribution Amount then on deposit in the Collection
Account and amounts withdrawn from the Reserve Account and deposited in the
Collection Account by wire transfer of immediately available funds, in the
following order of priority and in the amounts set forth in the Servicer's
Certificate for such Payment Date:
(i) to the Servicer, the sum of (x) the Servicing Fee for the
preceding Collection Period, plus (y) the amount of any Servicing Fee
previously due but not paid, if any, to the extent such amounts are not
deducted from the Servicer's remittance to the Collection Account pursuant
to Section 5.7;
(ii) to the Administrator, the sum of (x) the Administration Fee for
such Payment Date, plus (y) the amount of any Administration Fee previously
due but not paid, if any;
(iii) to the Note Distribution Account, the Noteholders' Interest
Distributable Amount;
(iv) except as set forth in Section 5.5(d), to the Owner Trustee for
deposit in the Certificate Distribution Account, the Certificateholders'
Interest Distributable Amount;
(v) except as set forth in Section 5.5(d), to the Note Distribution
Account, the Noteholders' Principal Distributable Amount; and
(vi) except as set forth in Section 5.5(d), to the Owner Trustee for
deposit in the Certificate Distribution Account, the Certificateholders'
Principal Distributable Amount; and
(vii) except as set forth in Section 5.5(d), to the Reserve Account,
any remaining portion of the Total Distribution Amount.
In the event that the Collection Account is maintained with an institution
other than the Indenture Trustee, the Servicer shall instruct and cause such
institution to make all deposits and distributions pursuant to this Section
5.5(c) on the related Deposit Date.
(d) If the Notes have been declared immediately due and payable as provided
in Section 5.2 of the Indenture following the occurrence of an Event of Default
described in clause (a) or (b) of Section 5.2 of the Indenture, any amounts
remaining in the Collection Account after the distributions described in clauses
(i), (ii) and (iii) of Section 5.5(c) shall be distributed as follows: (1) an
amount equal to the Outstanding Amount of the Notes will be deposited in the
Note Distribution Account, and (2) any remaining amounts will be applied
pursuant to clauses (iv), (v), (vi) and (vii) of Section 5.5(c).
SECTION 5.6 Reserve Account. (a) On or prior to the Closing Date, the
Issuer, the Reserve Account Securities Intermediary and the Indenture Trustee
shall have entered into the Reserve Account Control Agreement pursuant to which
the Reserve Account shall be established and maintained for the benefit of the
Noteholders and the Certificateholders. Pursuant to Section 2.5 of the Trust
Agreement, on the Closing Date, the Owner Trustee shall deposit the Reserve
Account Initial Deposit into the Reserve Account.
(b) If the depositary of the Reserve Account ceases to be either a
Qualified Institution or a Qualified Trust Institution, as applicable, the
Issuer shall cause the Reserve Account to be moved to a Qualified Institution or
a Qualified Trust Institution and the Indenture
Trustee shall cause the depositary maintaining the new Reserve Account to assume
the obligations of the existing Reserve Account Securities Intermediary under
the Reserve Account Control Agreement unless the Rating Agency Condition is
satisfied in connection with such depositary's ceasing to be a Qualified
Institution or a Qualified Trust Institution, as the case may be.
(c) All amounts held in the Reserve Account shall be invested in accordance
with the Reserve Account Control Agreement at the written direction of the
Seller to the extent provided in Section 8.3(a) and Section 8.3(c) of the
Indenture in Permitted Investments that mature not later than the Deposit Date
next succeeding the date of investment except, if the Reserve Account Securities
Intermediary and the Indenture Trustee are the same Person, investments on which
the Indenture Trustee is the obligor (including repurchase agreements on which
the Indenture Trustee, in its commercial capacity, is liable as principal) may
mature on the next succeeding Payment Date; provided, however, that amounts on
deposit in the Reserve Account may be invested in Permitted Investments that
mature later than the next succeeding Deposit Date, but in no event that mature
later than 90 days after the date of investment, if the Rating Agency Condition
is satisfied. Once amounts on deposit in the Reserve Account are invested in
Permitted Investments, such Permitted Investments must be held or maintained
until they mature on or before the dates described above.
(d) On each Payment Date, the Indenture Trustee shall withdraw from the
Reserve Account and pay to the Seller the sum of (i) all investment earnings
(net of losses and investment expenses) credited to the Reserve Account since
the prior Payment Date and (ii) the excess, if any, of the amount on deposit in
the Reserve Account over the Specified Reserve Account Balance with respect to
such Payment Date (after giving effect to all deposits therein or withdrawals
therefrom on such Payment Date). Upon any distribution to the Seller of amounts
from the Reserve Account, the Holders will have no rights in, or claims, to,
such amounts. Amounts properly distributed to the Seller from the Reserve
Account shall not be available under any circumstances to the Indenture Trustee,
and the Seller shall not in any event thereafter be required to refund any such
distributed amounts.
SECTION 5.7 Net Deposits. Chase USA (in its capacity as the Seller or the
Servicer) may make the remittances pursuant to Sections 5.2 and 5.4 above, net
of amounts to be retained by it or distributed to it (also in any such capacity)
pursuant to Section 4.7 (if applicable) and Section 5.5, if (a) it shall be the
Servicer and (b) it is entitled, pursuant to Section 5.2, to make deposits on a
monthly basis, rather than a daily basis. Nonetheless, the Servicer shall
account for all of the above-described amounts as if such amounts were deposited
and distributed separately.
SECTION 5.8 Statements to Certificateholders and Noteholders. (a) On each
Payment Date, the Servicer shall provide to the Indenture Trustee and the Paying
Agent (for the Paying Agent to forward to each Noteholder of record pursuant to
the Indenture) and to the Owner Trustee (for the Owner Trustee to forward to
each Certificateholder of record pursuant to the Trust Agreement) a statement
substantially in the form of Exhibit B (or such other form that is acceptable to
the Indenture Trustee, the Owner Trustee and the Servicer), with a copy to the
Rating Agencies, setting forth at least the following information as to the
Notes (separately
stating such information as to the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes) and the Certificates, to the extent
applicable:
(i) the amount of such distribution allocable to principal on each
class of Notes and the Certificates;
(ii) the amount of such distribution allocable to interest on each
class of Notes and the Certificates;
(iii) the amount of the Servicing Fee paid to the Servicer pursuant to
Section 5.5(c);
(iv) the amount of the Administration Fee paid to the Administrator on
such Payment Date;
(v) the Outstanding Amount of each class of the Notes, the Class A-1
Note Pool Factor, the Class A-2 Note Pool Factor, the Class A-3 Note Pool
Factor, the Class A-4 Note Pool Factor, the Certificate Balance and the
Certificate Pool Factor, in each case after giving effect to payments
allocated to principal reported under (i) above;
(vi) the Pool Balance as of the last day of the preceding Collection
Period;
(vii) the aggregate amount of the Repurchase Amounts for Repurchased
Receivables with respect to the related Collection Period paid by each of
the Seller and the Servicer (accounted for separately);
(viii) the amount of Aggregate Net Losses, if any, for such Payment
Date;
(ix) the balance of the Reserve Account on such Payment Date, after
giving effect to deposits into and withdrawals from the Reserve Account on
such Payment Date;
(x) the Specified Reserve Account Balance for such Payment Date;
(xi) the Total Distribution Amount for such Payment Date;
(xii) the Noteholders' Distributable Amount and the components
thereof;
(xiii) the Certificateholders' Distributable Amount and the components
thereof; and
(xiv) the Reserve Account Transfer Amount, if any, for such Payment
Date.
Each amount set forth pursuant to subclause (i), (ii), (iii), (iv), (xii)
or (xiii) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Note or a Certificate, as applicable.
ARTICLE VI
THE SELLER
SECTION 6.1 Representations of Seller. The Seller makes the following
representations on which the Issuer shall rely in acquiring the Receivables. The
representations shall speak as of the execution and delivery of this Agreement,
and shall survive the sale of the Receivables to the Issuer and pledge thereof
to the Indenture Trustee pursuant to the Indenture.
(i) Organization and Good Standing. The Seller has been duly organized
and is validly existing as a national banking association in good standing
under the laws of the United States of America, with power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, power, authority, and legal right to acquire and
own the Receivables.
(ii) Power and Authority. The Seller has the power and authority to
execute and deliver this Agreement and the other Basic Documents to which
it is a party and to carry out their respective terms, the Seller has full
power and authority to sell and assign the property to be sold and assigned
to the Issuer as the Owner Trust Estate and has duly authorized such sale
and assignment to the Issuer by all necessary corporate action; and the
execution, delivery, and performance of this Agreement and the other Basic
Documents to which it is a party has been duly authorized by the Seller by
all necessary action.
(iii) Valid Sale; Binding Obligations. This Agreement effects a valid
sale, transfer, and assignment of the Receivables, enforceable against
creditors of and purchasers from the Seller; this Agreement and each of the
other Basic Documents to which it is a party constitutes a legal, valid,
and binding obligation of the Seller enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(iv) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents and the fulfillment of the
terms hereof and thereof do not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of association or bylaws of
the Seller, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement, or other instrument to which the
Seller is a party or by which it is bound; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the terms of
any such indenture, agreement, or other instrument; nor violate any law or,
to the best of the Seller's knowledge, any order, rule, or regulation
applicable to the Seller of any court or of any federal or state regulatory
body, administrative agency, or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(v) No Proceedings. There are no proceedings or investigations
pending, or, to the Seller's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its properties: (a)
asserting the invalidity of this Agreement, any other Basic Document, the
Notes or the Certificates, (b) seeking to prevent the issuance of the Notes
or the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any other Basic Document, (c) seeking any
determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, any other Basic Document, or the Notes
or the Certificates, or (d) relating to the Seller and which might
adversely affect the federal or state income tax attributes of the Notes or
the Certificates.
SECTION 6.2 Liability of Seller; Indemnities. The Seller shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Seller in such capacity under this Agreement and shall have no
other obligations or liabilities hereunder.
The Seller shall indemnify, defend and hold harmless the Issuer, the Owner
Trustee and the Indenture Trustee from and against any taxes that may at any
time be asserted against any such Person with respect to, and as of the date of,
the sale of the Receivables to the Issuer or the issuance and original sale of
the Notes and the Certificates, including any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or license
taxes (but not including any taxes asserted with respect to ownership of the
Receivables or federal or other income taxes, including franchise taxes measured
by net income), arising out of the transactions contemplated by this Agreement
and the other Basic Documents, and costs and expenses in defending against the
same.
The Seller shall indemnify, defend, and hold harmless the Issuer, the Owner
Trustee and the Indenture Trustee from and against any loss, liability or
expense incurred by reason of (i) the Seller's willful misfeasance, bad faith,
or gross negligence in the performance of its duties hereunder, or by reason of
reckless disregard of the obligations and duties hereunder and (ii) the Seller's
violation of federal or state securities laws in connection with the
registration of the sale of the Notes and the Certificates.
Indemnification under this Section 6.2 shall include reasonable fees and
expenses of counsel and expenses of litigation. If the Seller shall have made
any indemnity payments to the Issuer, the Owner Trustee or the Indenture
Trustee, respectively, pursuant to this Section 6.2 and the Issuer, the Owner
Trustee or the Indenture Trustee, respectively, thereafter shall collect any of
such amounts from others, the Issuer, the Owner Trustee or the Indenture
Trustee, respectively, shall repay such amounts to the Seller, without interest.
SECTION 6.3 Merger or Consolidation of Seller. Any corporation or other
entity (i) into which the Seller may be merged or consolidated, (ii) which may
result from any merger, conversion, or consolidation to which the Seller shall
be a party, or (iii) which may succeed to all or substantially all of the
business of the Seller, which corporation or other entity shall be bound to
perform every obligation of the Seller under this Agreement, shall be the
successor to the Seller hereunder without the execution or filing of any
document or any further act by any of the parties to this Agreement. The Seller
shall give prompt written notice of any merger or
consolidation to the Issuer, the Owner Trustee, the Indenture Trustee, the
Servicer and the Rating Agencies.
SECTION 6.4 Limitation on Liability of Seller and Others. The Seller and
any director, officer, employee or agent of the Seller may rely in good faith on
the advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising hereunder or
under any other Basic Documents. The Seller shall not be under any obligation
under this Agreement to appear in, prosecute, or defend any legal action that
shall be unrelated to its obligations under this Agreement or any other Basic
Document, and that in its opinion may involve it in any expense or liability.
SECTION 6.5 Seller May Own Notes and Certificates. The Seller or any of its
Affiliates may in its individual or any other capacity become the owner or
pledgee of Notes or Certificates with the same rights as it would have if it
were not the Seller or an Affiliate thereof, except as otherwise provided in the
definition of "Outstanding" specified in Section 1.1. Notes or Certificates so
owned by or pledged to the Seller or any Affiliate thereof shall have an equal
and proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Notes or Certificates,
as applicable.
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer. The Servicer makes the following
representations on which the Issuer shall rely in acquiring the Receivables. The
representations shall speak as of the execution and delivery of this Agreement
(or as of a date a Person (other than the Indenture Trustee) becomes Servicer
pursuant to Section 7.3 or Section 8.2), and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(i) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a national banking association or
corporation and is in good standing under the laws of the United States of
America or the jurisdiction of its incorporation, with power and authority
to own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, power, authority, and legal right to acquire, own,
sell, and service the Receivables and to hold the Receivable Files as
custodian on behalf of the Issuer.
(ii) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and the Basic Documents to which it is a
party and to carry out the terms thereof; and the execution, delivery, and
performance of this Agreement and the other Basic Documents has been duly
authorized by the Servicer by all necessary action.
(iii) Binding Obligations. This Agreement and the other Basic
Documents to which it is a party constitute legal, valid, and binding
obligations of the Servicer
enforceable in accordance with their respective terms subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization, liquidation
or other similar laws and equitable principles relating to or affecting the
enforcement of creditors' rights, whether considered in a proceeding at law or
in equity.
(iv) No Violation. The consummation of the transactions contemplated
by this Agreement and the other Basic Documents and the fulfillment of the
terms hereof and thereof do not conflict with, result in any breach of any
of the terms and provisions of, nor constitute (with or without notice or
lapse of time) a default under, the articles of association or bylaws of
the Servicer, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement, or other instrument to which the
Servicer is a party or by which it is bound; nor result in the creation or
imposition of any lien upon any of its properties pursuant to the terms of
any such indenture, agreement, or other instrument; nor violate any law or,
to the best of the Servicer's knowledge, any order, rule, or regulation
applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties.
(v) No Proceedings. There are no proceedings or investigations
pending, or to the Servicer's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or its properties:
(a) asserting the invalidity of this Agreement, the Notes or the
Certificates, (b) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement or any other Basic Document, (c) seeking any determination
or ruling that might materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability of,
this Agreement, any other Basic Document, the Notes or the Certificates, or
(d) relating to the Servicer and which might adversely affect the federal
or state income tax attributes of the Notes or the Certificates.
(vi) Fidelity Bond. The Servicer maintains a fidelity bond in such
form and amount as is customary for banks acting as custodian of funds and
documents in respect of retail automotive installment sales contracts.
SECTION 7.2 Liability of Servicer; Indemnities. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement and shall have no other
obligations or liabilities hereunder.
(i) The Servicer shall defend, indemnify, and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee and the Holders from and
against any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the use, ownership, or
operation by the Servicer or any Affiliate thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee and the Indenture Trustee from and against any
taxes that may at any time be asserted against the Issuer with respect to
the transactions contemplated in this
Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible or intangible personal property, privilege,
or license taxes (but not including any taxes asserted with respect to, and
as of the date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Notes or the Certificates, or asserted
with respect to ownership of the Receivables or federal, state or other
income taxes, including franchise taxes measured by net income) arising out
of distributions on the Notes or the Certificates and costs and expenses in
defending against the same.
(iii) The Servicer shall indemnify, defend, and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee and the Holders from and
against any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon the Issuer, the Owner Trustee,
the Indenture Trustee or the Holders through the willful misfeasance, gross
negligence, or bad faith of the Servicer in the performance of its duties
under this Agreement or by reason of reckless disregard of its obligations
and duties under this Agreement. Indemnification under this Section 7.2
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant
to this Section 7.2 and the recipient thereafter collects any of such
amounts from others, the recipient shall promptly repay such amounts to the
Servicer, without interest. The indemnification obligations of the Servicer
set forth in this Section 7.2 shall survive the termination of such
Servicer with respect to any act or failure to act which occurs prior to
such Servicer's termination. The provisions of Section 6.7 of the Indenture
and Sections 8.1 and 8.2 of the Trust Agreement with respect to the
Servicer's obligations are incorporated by reference herein.
SECTION 7.3 Merger or Consolidation of Servicer. Any corporation or other
entity (i) into which the Servicer may be merged or consolidated, (ii) which may
result from any merger, conversion, or consolidation to which the Servicer shall
be a party, or (iii) which may succeed to all or substantially all of the
business of the Servicer, which corporation or other entity shall be bound to
perform every obligation of the Servicer hereunder, shall be the successor to
the Servicer under this Agreement without the execution or filing of any
document or any further act on the part of any of the parties to this Agreement.
The Servicer shall promptly inform the Issuer, the Owner Trustee, the Indenture
Trustee, the Seller and the Rating Agencies in writing of any such merger or
consolidation.
SECTION 7.4 Limitation on Liability of Servicer and Others. (a) Neither the
Servicer nor any of the directors or officers or employees or agents of the
Servicer shall be under any liability to the Issuer, the Owner Trustee, the
Indenture Trustee or the Holders, except as provided under this Agreement, for
any action taken or for refraining from the taking of any action pursuant to
this Agreement; provided, however, that this provision shall not protect the
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, gross negligence, or bad faith in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement. The Servicer and any director or officer or
employee or agent of the Servicer may rely in good faith on the advice of
counsel or
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.
(b) The Servicer, and any director, or officer, employee or agent of the
Servicer, shall be indemnified by the Issuer and held harmless against any loss,
liability, or expense (including reasonable attorneys' fees and expenses)
incurred in connection with any legal action relating to the performance of the
Servicer's duties under this Agreement, other than (i) any loss or liability
otherwise reimbursable pursuant to this Agreement or the Basic Documents; (ii)
any loss, liability, or expense incurred solely by reason of the Servicer's
willful misfeasance, negligence, or bad faith in the performance of its duties
hereunder or by reason of reckless disregard of its obligations and duties under
this Agreement or the Basic Documents; and (iii) any loss, liability, or expense
for which the Issuer is to be indemnified by the Servicer under this Agreement
or the Basic Documents. Any amounts due the Servicer pursuant to this Section
7.4 shall be payable on a Payment Date from amounts distributable to the Seller
from the Reserve Account pursuant to Section 5.6(d).
(c) Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute, or defend any legal action that shall
not be incidental to its obligations under this Agreement, and that in its
opinion may involve it in any expense or liability; provided, however, that the
Servicer may undertake any reasonable action that it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the parties
to this Agreement and the interests of the Holders under this Agreement. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs, and liabilities of the Issuer, and the
Servicer shall be entitled to be reimbursed therefor. Any amounts due the
Servicer pursuant to this Section 7.4 shall be payable on a Payment Date from
amounts distributable to the Seller from the Reserve Account pursuant to Section
5.6(d).
The Person to be indemnified shall provide the Issuer, the Owner Trustee
and the Indenture Trustee with a certificate and accompanying Opinion of Counsel
requesting indemnification and setting forth the basis for such request.
SECTION 7.5 Servicer Not To Resign. Except as permitted by Section 7.3, the
Servicer shall not resign from its obligations and duties under this Agreement
except (i) upon determination that the performance of its duties shall no longer
be permissible under applicable law or (ii) in the event of the appointment of a
successor Servicer, upon satisfaction of the Rating Agency Condition. Notice of
any such determination permitting the resignation of the Servicer shall be
communicated to the Issuer, the Indenture Trustee, the Owner Trustee and the
Rating Agencies at the earliest practicable time (and, if such communication is
not in writing, shall be confirmed in writing at the earliest practicable time)
and any such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Issuer, the
Indenture Trustee and the Owner Trustee concurrently with such notice. No such
resignation shall become effective until the Indenture Trustee (which shall not
be obligated to act as successor Servicer if the Servicer has resigned for a
reason other than that the performance of its duties are no longer permissible
under applicable law) or a successor Servicer shall have assumed the
responsibilities and obligations of the Servicer hereunder in accordance with
Section 8.2.
SECTION 7.6 Delegation of Duties. So long as Chase USA acts as Servicer,
the Servicer shall have the right, in the ordinary course of its business, to
delegate any of its duties under this Agreement to any Person. The Servicer
shall pay any compensation payable to such Person from its own funds and none of
the Issuer, the Owner Trustee, the Indenture Trustee or the Holders shall have
any liability to such Person with respect thereto. Notwithstanding any
delegation of duties by the Servicer pursuant to this Section 7.6, the Servicer
shall not be relieved of its liability and responsibility with respect to such
duties, and any such delegation shall not constitute a resignation within the
meaning of Section 7.5. Any agreement that may be entered into by the Servicer
and a Person that provides for any delegation of the Servicer's duties hereunder
to such Person shall be deemed to be between the Servicer and such Person alone,
and the Issuer, the Owner Trustee, the Indenture Trustee and Holders shall not
be deemed parties thereto and shall have no claims, rights, obligations, duties
or liabilities with respect thereto.
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1 Events of Servicing Termination. Any one of the following
events which shall occur and be continuing shall constitute an event of
servicing termination hereunder (each, an "Event of Servicing Termination"):
(i) Any failure by the Servicer to deliver to the Indenture Trustee
the Servicer's Certificate for the related Collection Period, or any
failure by the Servicer to deliver to the Indenture Trustee, for deposit in
any of the Trust Accounts or the Certificate Distribution Account, any
proceeds or payment required to be so delivered under the terms of the
Certificates or the Notes and this Agreement (or, in the case of a payment
or deposit to be made not later than the Deposit Date, the failure to make
such payment or deposit on such Deposit Date), which failure continues
unremedied for a period of five Business Days after (A) discovery by an
officer of the Servicer or (B) written notice (1) to the Servicer by the
Indenture Trustee or the Owner Trustee or (2) to the Indenture Trustee or
the Owner Trustee, as applicable, and the Servicer by the
Holders of Notes evidencing not less than 25% of the Outstanding Amount of
the Notes (or, if the Notes have been paid in full, by Holders of the
Certificates evidencing not less than 25% of the Certificate Balance);
(ii) Failure on the part of the Servicer duly to observe or to perform
in any material respect any other covenants or agreements of the Servicer
set forth in this Agreement or the Indenture, which failure shall (a)
materially and adversely affect the rights of the Issuer or the Holders,
and (b) continue unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given (1) to the Servicer by the Indenture Trustee or the Owner
Trustee, or (2) to the Indenture Trustee or the Owner Trustee, as
applicable, and the Servicer by the Holders of Notes evidencing not less
than 25% of the Outstanding Amount of the Notes (or, if the Notes have been
paid in full, by Holders of the Certificates evidencing not less than 25%
of the Certificate Balance);
(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, or liquidator for the Servicer in
any insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings, or for the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(iv) The consent by the Servicer to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or
relating to the Servicer or of or relating to substantially all of its
property; or the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations.
Upon the occurrence of any Event of Servicing Termination as described
above, and in each and every case and for so long as such Event of Servicing
Termination shall not have been remedied, either the Indenture Trustee or the
Holders of Notes evidencing not less than a majority of the Outstanding Amount
of the Notes (or, if the Notes have been paid in full and the Indenture has been
discharged in accordance with its terms, by the Owner Trustee or the Holders of
Certificates evidencing not less than a majority of the Certificate Balance), by
notice given in writing to the Servicer (and to the Indenture Trustee or the
Owner Trustee, as applicable, if given by Holders) may terminate all of the
rights and obligations of the Servicer under this Agreement. On or after the
receipt by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Certificates, the
Notes or the Receivables or otherwise, shall pass to and be vested in the
Indenture Trustee pursuant to this Section 8.1; and, without limitation, the
Indenture Trustee shall be hereby authorized and empowered to execute and
deliver, on behalf of the predecessor Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Receivable Files, or otherwise. The predecessor Servicer shall cooperate with
the successor Servicer and the Indenture Trustee in effecting the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, shall have been deposited by the predecessor
Servicer in the Collection Account, or shall thereafter be received with respect
to a Receivable. All reasonable costs and expenses (including attorneys' fees
and disbursements) incurred in connection with transferring the Receivable Files
to the successor Servicer and amending this Agreement to reflect such succession
as Servicer pursuant to this Section 8.1 shall be paid by the predecessor
Servicer upon presentation of reasonable documentation of such costs and
expenses. The Indenture Trustee and the Owner Trustee shall give written notice
of any termination of the Servicer to their related Holders, and the Indenture
Trustee shall give such notice to the Rating Agencies. Neither the Indenture
Trustee nor any successor Servicer shall be deemed to be in default hereunder by
reason of its failure to make, or any delay in making, any distribution
hereunder or any portion thereof which was caused by (i) the failure of the
predecessor Servicer to deliver, or any delay in delivering cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the predecessor Servicer.
SECTION 8.2 Indenture Trustee to Act; Appointment of Successor Servicer.
Upon the Servicer's receipt of notice of termination pursuant to Section 8.1 or
resignation pursuant to Section 7.5, the Indenture Trustee shall be the
successor in all respects to the Servicer in its capacity as Servicer under this
Agreement, and shall be subject to all the responsibilities, duties and
liabilities arising thereafter relating thereto placed on the Servicer by the
terms and provisions of this Agreement. As compensation therefor, the Indenture
Trustee shall be entitled to such compensation (whether payable out of the
Collection Account or otherwise) as the Servicer would have been entitled to
under this Agreement if no such notice of termination or resignation had been
given. Notwithstanding the above, the Indenture Trustee may, if it shall be
unwilling so to act, or shall, if it shall be legally unable so to act, appoint,
or petition a court of competent jurisdiction to appoint, any established
financial institution (x) having a net worth of not less than $100,000,000 as of
the last day of the most recent fiscal quarter for such institution and (y)
whose regular business shall include the servicing of automobile receivables, as
successor Servicer under this Agreement; provided, that the appointment of any
such successor Servicer is required to satisfy the Rating Agency Condition. In
connection with such appointment, the Indenture Trustee may make such
arrangements for the compensation of such successor Servicer out of payments on
Receivables as it and such successor Servicer shall agree; provided, however,
that no such compensation shall be in excess of that permitted the Servicer
under this Agreement. The Indenture Trustee and such successor Servicer shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Unless the Indenture Trustee shall be prohibited
by law from so acting, the Indenture Trustee shall not be relieved of its duties
as successor Servicer under this Section 8.2 until the newly appointed successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
under this Agreement.
SECTION 8.3 Notification to Noteholders and Certificateholders. Upon any
Event of Servicing Termination, or appointment of a successor Servicer pursuant
to this Article VIII, the Owner Trustee shall give prompt written notice thereof
to Certificateholders and the Indenture Trustee shall give prompt written notice
thereof to the Noteholders, at their respective addresses of record, and to the
Rating Agencies.
SECTION 8.4 Waiver of Past Defaults. The Holders of Notes evidencing at
least a majority of the Outstanding Amount of the Notes (or, the Holders of
Certificates evidencing not less than a majority of the Certificate Balance, in
the case of any Event of Servicing Termination that does not adversely affect
the Indenture Trustee or the Noteholders) may, on behalf of all such Holders,
waive any default by the Servicer in the performance of its obligations
hereunder and its consequences, except a default in the failure to make any
required deposits to or payments from any of the Trust Accounts or the
Certificate Distribution Account in accordance with this Agreement. Upon any
such waiver of a past default, such default shall cease to exist, and any Event
of Servicing Termination arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to the
extent expressly so waived. The Servicer shall give prompt written notice of any
waiver to the Rating Agencies; provided, however, that the Indenture Trustee or
the Owner Trustee shall only be required to give such notice if a Responsible
Officer thereof has actual knowledge of the related event.
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables; Trust Termination. (a) As
of the last day of any Collection Period as of which the Pool Balance shall be
equal to or less than the Optional Purchase Percentage of the Original Pool
Balance, the Servicer shall have the option to purchase the Owner Trust Estate,
other than the Trust Accounts and the Certificate Distribution Account. To
exercise such option, the Servicer shall notify the Indenture Trustee, the Owner
Trustee, the Note Registrar and the Certificate Registrar in writing, no later
than the 25th day of the Collection Period following which purchase is to be
effected, shall pay the aggregate Repurchase Amount for the Receivables
(including Defaulted Receivables) and shall succeed to all interests in, to and
under such property. The payment shall be made in the manner specified in
Section 5.4, and shall be distributed pursuant to Section 5.5. The Indenture
Trustee shall not permit the purchase of the Owner Trust Estate pursuant to this
Section 9.1 unless (i) the Servicer's long-term unsecured debt is rated at the
time of such purchase at least "BBB-" by Standard & Poor's and Fitch (if rated
by Fitch) and Baa3 by Moody's or (ii) the Servicer provides to the Indenture
Trustee an Opinion of Counsel in form and substance satisfactory to the Rating
Agencies to the effect that such purchase will not constitute a fraudulent
transfer under applicable state and federal law.
(b) Upon any sale of the assets of the Issuer pursuant to Article V of the
Indenture, the Servicer shall instruct the Indenture Trustee in writing to
deposit the proceeds from such sale after all payments and reserves therefrom
(including the expenses of such sale) have been made (the "Sale Proceeds") in
the Collection Account. On the Payment Date on which the Sale Proceeds are
deposited in the Collection Account (or, if such proceeds are not so deposited
on a Payment Date, on the Payment Date immediately following such deposit), the
Servicer shall instruct the Indenture Trustee in writing to make, and the
Indenture Trustee shall make, the following deposits and distributions (after
the application on such Payment Date of the Total Distribution Amount pursuant
to Section 5.5) from the Sale Proceeds and any funds remaining on deposit in the
Reserve Account (including the proceeds of any sale of investments therein):
(i) to the Note Distribution Account, any portion of the Noteholders'
Interest Distributable Amount not otherwise deposited into the Note
Distribution Account on such Payment Date;
(ii) to the Note Distribution Account, the Outstanding Amount of the
Notes (after giving effect to the reduction in the Outstanding Amount of
the Notes resulting from the deposits made in the Note Distribution Account
on such Payment Date);
(iii) to the Certificate Distribution Account, any portion of the
Certificateholders' Interest Distributable Amount not otherwise deposited
into the Certificate Distribution Account on such Payment Date; and
(iv) to the Certificate Distribution Account, the Certificate Balance
and any Certificateholders' Principal Carryover Shortfall (after giving
effect to the reduction in the Certificate Balance resulting from the
deposits made in the Certificate Distribution Account on such Payment
Date).
Any Sale Proceeds remaining after the deposits described above shall be
paid to the Seller.
(c) Notice of any termination of the Issuer shall be given by the Servicer
to the Owner Trustee, the Indenture Trustee and the Rating Agencies as soon as
practicable after the Servicer has received notice thereof.
(d) [Reserved]
(e) After the payment to the Indenture Trustee, the Owner Trustee, the
Holders and the Servicer of all amounts required to be paid under this
Agreement, the Indenture and the Trust Agreement, any amounts on deposit in the
Reserve Account or the Collection Account shall be paid to the Seller, and any
other assets 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, on behalf of the Issuer, with the prior consent
of the Indenture Trustee and prior notice to the Rating Agencies but without
prior notice to or the consent of any of the Holders, (i) to cure any ambiguity,
to correct or supplement any provisions in this Agreement which may be
inconsistent with any other provisions herein, to evidence a succession to the
Servicer or the Seller pursuant to this Agreement or to add any other provisions
with respect to matters or questions arising under this Agreement that shall not
be inconsistent with the provisions of this Agreement; provided, however, that
such action shall not, as evidenced by an Officer's Certificate and/or an
Opinion of Counsel reasonably acceptable and delivered to the Owner Trustee and
the Indenture Trustee, adversely and materially affect the interests of the
Issuer or any of the Holders; provided, further, that the Servicer shall deliver
written notice of such changes to each Rating Agency prior to the execution of
any such amendment, or (ii) to effect a transfer or assignment in compliance
with Section 10.6(a) of this
Agreement. Notwithstanding the foregoing, no amendment modifying the provisions
of Section 5.5 shall become effective without satisfaction of the Rating Agency
Condition.
This Agreement may also be amended from time to time by the Seller, the
Servicer and the Owner Trustee, on behalf of the Issuer, with the consent of the
Indenture Trustee, the Holders of Certificates evidencing at least a majority of
the Certificate Balance of the Certificates and the consent of the Holders of
Notes evidencing at least a majority of the Outstanding Amount of the Notes, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement, or of modifying in any manner the
rights of the Noteholders or the Certificateholders (including effecting a
transfer or assignment in compliance with Section 10.6(a) of this Agreement);
provided, however, that no such amendment, except with the consent of the
Holders of all Certificates or Notes, as applicable, then outstanding, shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments of Receivables, or distributions that shall
be required to be made on any Certificate or Note, or (b) reduce the aforesaid
percentage of the Certificate Balance of the Certificates or the Outstanding
Amount of the Notes required to consent to any such amendment.
Promptly after the execution of any amendment or consent referred to in
this Section 10.1, the Owner Trustee shall furnish a copy of such amendment or
consent to each Certificateholder and the Indenture Trustee, who shall promptly
furnish a copy to each Noteholder and to the Rating Agencies.
It shall not be necessary for the consent of the Indenture Trustee, the
Certificateholders or the Noteholders pursuant to this Section 10.1 to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders or Noteholders shall be subject to such reasonable
requirements as the Indenture Trustee or the Owner Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Indenture
Trustee and the Owner Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Indenture Trustee and the Owner Trustee shall
not be obligated to enter into any such amendment which affects the Indenture
Trustee's and the Owner Trustee's own rights, duties or immunities under this
Agreement.
Satisfaction of the Rating Agency Condition is required prior to the
execution of any amendment to this Agreement, other than an amendment permitted
pursuant to clause (i) of the first paragraph of this Section 10.1.
SECTION 10.2 Protection of Title to Owner Trust Estate. (a) The Seller
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain, and protect the interests of the
Issuer and the Indenture Trustee in the Receivables and in the proceeds thereof.
The Servicer shall deliver (or cause to be delivered) to the Owner Trustee and
the Indenture Trustee file-stamped copies of, or filing receipts for, any
document
filed as provided above, as soon as available following such filing. In
addition, the Seller hereby authorizes the Issuer at any time and from time to
time to file any financing statements and amendments thereto in any jurisdiction
as may be necessary or desireable to preserve, maintain, and protect the
interests of the Issuer and the Indenture Trustee in the Receivables and in the
proceeds thereof.
(b) Neither the Seller nor the Servicer shall change its name in any manner
that would, could, or might make any financing statement or continuation
statement filed by the Seller in accordance with paragraph (a) above seriously
misleading within the meaning of ss. 9-506 (or any comparable section) of the
Relevant UCC, unless it shall have given the Owner Trustee and the Indenture
Trustee at least 30 days prior written notice thereof.
(c) The Seller and the Servicer shall give the Owner Trustee and the
Indenture Trustee at least 60 days prior written notice of any change in the
jurisdiction of its organization or the State designated as its location in its
Articles of Association if, as a result of such change of jurisdiction or State
designated as its location, the applicable provisions of the Relevant UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. The Servicer shall at
all times maintain each office from which it shall service Receivables or at
which the Receivable Files are located within the United States of America.
(d) The Servicer shall maintain accounts and records as to each Receivable
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation between
payments or recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of such
Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Issuer,
the Servicer's master computer records (including archives) that shall refer to
a Receivable indicate clearly, by numerical code or otherwise, that such
Receivable is owned by the Issuer and has been pledged to the Indenture Trustee.
Indication of the Issuer's and Indenture Trustee's interest in a Receivable
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the Receivable shall have been paid in full, repurchased or assigned
pursuant hereto.
(f) If at any time the Seller or the Servicer shall propose to sell, grant
a security interest in, or otherwise transfer any interest in a new or used
automobile receivable to any prospective purchaser, creditor, or other
transferee, the Seller or the Servicer, as the case may be, shall give to such
prospective purchaser, creditor, or other transferee computer tapes, records, or
print-outs (including any restored from archives) that, if they shall refer in
any manner whatsoever to any Receivable, shall indicate clearly that such
Receivable has been sold and is owned by the Issuer and has been pledged to the
Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and the Owner Trustee
and their respective agents upon reasonable notice at any time during normal
business hours which does not unreasonably interfere with the Servicer's normal
operations or customer or employee
relations to inspect, audit, and make copies of and abstracts from the
Servicer's records regarding the Receivables.
(h) Upon request, the Servicer shall furnish to the Owner Trustee or the
Indenture Trustee, within five Business Days, a list of all Receivables by
account number and name of Obligor then held by the Issuer, together with a
reconciliation of such list to the Schedule of Receivables and to each of the
Servicer Certificates indicating removal of Receivables from the Owner Trust
Estate.
(i) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee:
(i) upon the execution and delivery of this Agreement, an Opinion of
Counsel either (a) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Issuer and the Indenture Trustee in the Receivables, and reciting the
details of such filings or referring to prior Opinions of Counsel in which
such details are given, or (b) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interest; and
(ii) on or before March 31 of each year, commencing with March 31,
2002, an Opinion of Counsel, dated as of such date, either (a) stating
that, in the opinion of such counsel, all financing statements and
continuation statements have been executed and filed that are necessary
fully to preserve and protect the interest of the Issuer and the Indenture
Trustee in the Receivables, and reciting the details of such filings or
referring to prior opinions of Counsel in which such details are given, or
(b) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest. Notwithstanding the
provisions of Section 10.4, such Opinion of Counsel may be sent by regular
non-certified mail, and such mailed opinion shall be deemed delivered when
so mailed.
(j) The Seller shall, to the extent required by applicable law, cause the
Certificates and the Notes to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Exchange Act within
the time periods specified in such sections.
(k) For the purpose of facilitating the execution of this Agreement and for
other purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
all of which counterparts shall constitute but one and the same instrument.
SECTION 10.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.4 Notices. All demands, notices, and communications under this
Agreement shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Seller, c/o Chase Automotive Finance Corporation,
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Financial Controller, or at such other address as shall be designated
by the Seller in a written notice to the Indenture Trustee, (b) in the case of
the Servicer, c/o Chase Manhattan Automotive Finance Corporation, 000 Xxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, Attention: Financial Controller, or at such
other address as shall be designated by the Servicer in a written notice to the
Indenture Trustee, (c) in the case of the Indenture Trustee, at Xxxxx Fargo Bank
Minnesota, National Association, Sixth Street and Marquette Avenue MAC
N9311-161, Minneapolis, Minnesota 55479-0069, Attention: Corporate Trust Office
and (d) in the case of the Issuer and the Owner Trustee, at c/o Wilmington Trust
Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Administration. Any notice required or
permitted to be mailed to a Holder shall be given by first class mail, postage
prepaid, at the address of record of such Holder. Any notice to a Holder so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Holder shall receive such
notice.
SECTION 10.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or of the Notes or the rights of the Holders thereof.
SECTION 10.6 Assignment. Notwithstanding anything to the contrary contained
herein, except as provided in Sections 6.3, 7.3, 7.5 and 8.2, neither the Seller
nor the Servicer may assign all, or a portion of, its rights, obligations and
duties under this Agreement unless such transfer or assignment satisfies the
Rating Agency Condition. In the event of a transfer or assignment pursuant to
this Section 10.6, the Rating Agencies shall be provided with notice of such
transfer or assignment.
SECTION 10.7 Certificates and Notes Nonassessable and Fully Paid. The
interests represented by the Certificates and Notes shall be nonassessable for
any losses or expenses of the Issuer or for any reason whatsoever, and, upon
authentication thereof by the Indenture Trustee and the Owner Trustee pursuant
to the Trust Agreement and the Indenture, respectively, each Certificate and
Note shall be deemed fully paid.
SECTION 10.8 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, and their respective
successors and permitted assigns. The Administrator, the Owner Trustee,
individually and on behalf of the Certificateholders, and the Indenture Trustee,
individually and on behalf of the Noteholders are third-party beneficiaries to
this Agreement and are entitled to the rights and benefits hereunder and may
enforce the provisions hereof as it were a party hereto. Except as otherwise
provided in this Agreement, no other person will have any right or obligation
hereunder.
SECTION 10.9 Assignment to Indenture Trustee. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Receivables and the other property constituting
the Owner Trust Estate and/or the assignment of any or all of the Issuer's
rights and
obligations hereunder to the Indenture Trustee and agrees that the enforcement
of a right or remedy hereunder by the Indenture Trustee shall have the same
force and effect as if such right or remedy had been enforced or executed by the
Issuer.
SECTION 10.10 Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer,
and in no event shall Wilmington Trust Company in its individual capacity or,
except as expressly provided in the Trust Agreement, as Owner Trustee of the
Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been acknowledged and accepted by Xxxxx Fargo not in its
individual capacity but solely as Indenture Trustee, and in no event shall Xxxxx
Fargo have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
SECTION 10.11 No Petition. The Seller and Servicer, by entering into this
Agreement hereby covenant and agree that they will not at any time institute
against the Issuer or join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to this Agreement or any
of the other Basic Documents.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Seller
and Servicer
By: /s/ Xxxxxxxx Xxxxxx
------------------------------
Name:
Title:
CHASE MANHATTAN AUTO OWNER TRUST,
2001-B, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the Issuer
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name:
Title:
Acknowledged and Accepted:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely in its capacity
as Indenture Trustee
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name:
Title:
SCHEDULE A
LIST OF RECEIVABLES
DELIVERED TO THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
ON THE CLOSING DATE.
SCHEDULE B
Location of Receivable Files
The Chase Manhattan Bank
P.O. Box 54
Hurds Corner Road
Records Management
Xxxxxxx, Xxx Xxxx 00000
Chase Manhattan Automotive Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
EXHIBIT A
FORM OF SERVICER'S CERTIFICATE
EXHIBIT B
FORM OF CERTIFICATEHOLDER AND NOTEHOLDER REPORT
EXHIBIT C
FORM OF COLLECTION ACCOUNT CONTROL AGREEMENT
EXHIBIT D
FORM OF RESERVE ACCOUNT CONTROL AGREEMENT
