EXHIBIT 4.1
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CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Seller and Servicer
and
CHASE MANHATTAN AUTO OWNER TRUST 2003-B
as Issuer
SALE AND SERVICING AGREEMENT
Dated as of July 25, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions...................................................................................1
SECTION 1.2 Usage of Terms...............................................................................22
SECTION 1.3 Simple Interest Method; Methods of Allocating Payments or Receivables;
Allocations...............................................................................22
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables....................................................................22
SECTION 2.2 Closing......................................................................................23
ARTICLE III
THE RECEIVABLES
SECTION 3.1 Representations and Warranties of Seller; Conditions Relating to Receivables.................23
SECTION 3.2 Repurchase Upon Breach or Failure of a Condition.............................................27
SECTION 3.3 Custody of Receivable Files..................................................................28
SECTION 3.4 Duties of Servicer as Custodian..............................................................28
SECTION 3.5 Instructions; Authority to Act...............................................................29
SECTION 3.6 Custodian's Indemnification..................................................................30
SECTION 3.7 Effective Period and Termination.............................................................30
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1 Duties of Servicer...........................................................................30
SECTION 4.2 Collection of Receivable Payments; Refinancing...............................................31
SECTION 4.3 Realization Upon Receivables.................................................................31
SECTION 4.4 Maintenance of Security Interests in Financed Vehicles.......................................32
SECTION 4.5 Covenants of Servicer........................................................................33
SECTION 4.6 Purchase of Receivables Upon Breach..........................................................33
SECTION 4.7 Servicing Fee................................................................................33
SECTION 4.8 Servicer's Certificate.......................................................................34
SECTION 4.9 Annual Statement as to Compliance............................................................34
SECTION 4.10 Annual Audit Report..........................................................................35
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SECTION 4.11 Access by Holders to Certain Documentation and Information Regarding
Receivables................................................................................35
SECTION 4.12 Reports to Holders and the Rating Agencies...................................................36
SECTION 4.13 Reports to the Securities and Exchange Commission............................................36
ARTICLE V
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1 Establishment of Collection Account and Note Distribution Account.............................36
SECTION 5.2 Collections...................................................................................37
SECTION 5.3 [Reserved]....................................................................................38
SECTION 5.4 Additional Deposits...........................................................................38
SECTION 5.5 Distributions.................................................................................38
SECTION 5.6 Yield Supplement Account......................................................................39
SECTION 5.7 Reserve Account...............................................................................40
SECTION 5.8 Net Deposits..................................................................................41
SECTION 5.9 Statements to Certificateholders and Noteholders..............................................41
ARTICLE VI
THE SELLER
SECTION 6.1 Representations of Seller.....................................................................42
SECTION 6.2 Liability of Seller; Indemnities..............................................................44
SECTION 6.3 Merger or Consolidation of Seller.............................................................44
SECTION 6.4 Limitation on Liability of Seller and Others..................................................44
SECTION 6.5 Seller May Own Notes and Certificates.........................................................45
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer...................................................................45
SECTION 7.2 Liability of Servicer; Indemnities............................................................46
SECTION 7.3 Merger or Consolidation of Servicer...........................................................47
SECTION 7.4 Limitation on Liability of Servicer and Others................................................47
SECTION 7.5 Servicer Not To Resign........................................................................48
SECTION 7.6 Delegation of Duties..........................................................................48
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1 Events of Servicing Termination...............................................................49
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SECTION 8.2 Indenture Trustee to Act; Appointment of Successor Servicer...................................50
SECTION 8.3 Notification to Noteholders and Certificateholders............................................51
SECTION 8.4 Waiver of Past Defaults.......................................................................51
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables; Trust Termination.......................................51
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment.....................................................................................53
SECTION 10.2 Protection of Title to Owner Trust Estate.....................................................54
SECTION 10.3 GOVERNING LAW.................................................................................56
SECTION 10.4 Notices.......................................................................................56
SECTION 10.5 Severability of Provisions....................................................................56
SECTION 10.6 Assignment....................................................................................57
SECTION 10.7 Certificates and Notes Nonassessable and Fully Paid...........................................57
SECTION 10.8 Third-Party Beneficiaries.....................................................................57
SECTION 10.9 Assignment to Indenture Trustee...............................................................57
SECTION 10.10 Limitation of Liability of Owner Trustee and Indenture Trustee................................57
SECTION 10.11 No Petition...................................................................................58
SECTION 10.12 Disclosure....................................................................................58
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SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Location of Receivable Files
EXHIBITS
Exhibit A - Form of Servicer's Certificate
Exhibit B - Form of Monthly Report
Exhibit C - Form of Collection Account Control Agreement
Exhibit D - Form of Reserve Account Control Agreement
Exhibit E - Form of Yield Supplement Account Control Agreement
This SALE AND SERVICING AGREEMENT, dated as of July 25, 2003,
(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 2003-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 July 25, 2003, among the Issuer, the Administrator and the Indenture
Trustee, as the same may be amended and supplemented from time to time.
"Administrator" means JPMorgan Chase Bank, a New York banking
corporation, as administrator, and its successors and assigns.
"Administration Fee" means $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
JPMorgan Chase Bank, and its successors and assigns in such capacity.
"Authorized Officer" means (i) with respect to the Owner
Trustee, Indenture Trustee or Servicer, 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 or (ii) with respect to the Issuer, any officer of the Owner
Trustee who is authorized to act on behalf of the Owner Trustee and who is
identified as such on the list of authorized officers delivered by the Owner
Trustee 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, (ii) the Yield Supplement Withdrawal
Amount for such Payment Date and (iii) 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.
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"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.
"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.
"Capital Accounts" has the meaning specified in Section 5.8 of
the Trust Agreement.
"Certificate" means a certificate evidencing the beneficial
interest of a Certificateholder in the Owner Trust Estate, substantially in the
form of Exhibit A-2 to the Trust Agreement.
"Certificate Balance" means an amount equal to $37,500,000 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, JPMorgan Chase Bank, 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.
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"Certificate Final Scheduled Payment Date" means the February
2010 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 Statutory 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 2.43% 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.
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"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 USA" means Chase Manhattan Bank USA, National
Association.
"Class A-1 Interest Rate" means 1.06% per annum.
"Class A-1 Notes" means the Class A-1 1.06% Asset Backed
Notes, substantially in the form of Exhibit B to the Indenture.
"Class A-2 Interest Rate" means 1.28% per annum.
"Class A-2 Notes" means the Class A-2 1.28% Asset Backed
Notes, substantially in the form of Exhibit C to the Indenture.
"Class A-3 Interest Rate" means 1.82% per annum.
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"Class A-3 Notes" means the Class A-3 1.82% Asset Backed
Notes, substantially in the form of Exhibit D to the Indenture.
"Class A-4 Interest Rate" means 2.57% per annum.
"Class A-4 Notes" means the Class A-4 2.57% Asset Backed
Notes, substantially in the form of Exhibit E to the Indenture.
"Class R Certificate" means the certificate evidencing the
beneficial interest of the Class R Certificateholder in the Owner Trust Estate,
substantially in the form of Exhibit A-1 to the Trust Agreement.
"Class R Certificateholder" means the Person in whose name the
Class R Certificate is registered.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The initial
Clearing Agency shall be The Depository Trust Company.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other person for whom from time to time a
Clearing Agency effects book-entry transfers of securities deposited with the
Clearing Agency (including a Foreign Clearing Agency).
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means July 30, 2003.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means securities account no. 00000000.2
entitled "Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee, Securities Account of Chase Auto Owner Trust Series 2003-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, JPMorgan Chase Bank, as securities intermediary, and the
Indenture Trustee, dated as of July 25, 2003, relating to the Collection
Account, substantially in the form attached as Exhibit C, as the same may be
amended and supplemented from time to time.
"Collection Account Securities Intermediary" means JPMorgan
Chase Bank or any other securities intermediary that maintains the Collection
Account pursuant to the Collection Account Control Agreement.
"Collection Period" means the period from and including July
25, 2003 to and including August 31, 2003 and each calendar month thereafter
until Chase Manhattan Auto Owner Trust 2003-B shall terminate pursuant to
Article IX of the Trust Agreement.
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"Collections" means all collections in respect of Receivables,
including Liquidation Proceeds with respect to the Receivables.
"Contract Rate" of a Receivable means the annual rate of
interest stated in such Receivable.
"Corporate Trust Office" means the corporate trust office of
the Indenture Trustee in Minneapolis, Minnesota or the office of the Owner
Trustee, as applicable.
"Cutoff Date" means July 25, 2003.
"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
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(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 and the
Yield Supplement Account, initially be JPMorgan Chase Bank, and may be
maintained with JPMorgan Chase Bank so long as JPMorgan Chase Bank is a
Qualified Trust Institution; or (b) a separately identifiable deposit account
established in the deposit taking department of a Qualified Institution, which
may be JPMorgan Chase Bank so long as JPMorgan Chase Bank is a Qualified
Institution.
"Executive Officer" means, with respect to any corporation or
bank, the Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, President, Executive Vice President, any Vice President, the Secretary
or the Treasurer of such corporation or bank, and with respect to any
partnership, any general partner thereof.
"Euroclear Operator" means Euroclear Bank S.A./N.V., in its
capacity as the operator of the Euroclear system.
"Event of Default" means an event specified in Section 5.1 of
the Indenture.
"Event of Servicing Termination" means an event specified in
Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expenses" has the meaning specified in Section 8.2 of the
Trust Agreement.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation or
any successor thereto.
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"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%), the
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 July 25, 2003,
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
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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 2003-B, a
Delaware statutory trust, until a successor replaces it and, thereafter, means
such successor and, for purposes of any provision contained in the Indenture and
required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or
request signed in the name of the Issuer by any of its authorized officers and
delivered to the Indenture Trustee.
"JPMorgan Chase Bank" means JPMorgan Chase Bank, a New York
banking corporation and its successors.
10
"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, JPMorgan Chase Bank, 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 August 2004 Payment Date, (b) the Class A-2 Notes, the March 2006
Payment Date, (c) the Class A-3 Notes, the July 2007 Payment Date, and (d) the
Class A-4 Notes, the February 2010 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.
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"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.
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"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 $1,500,000,000.60.
"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
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(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 JPMorgan Chase Bank.
"Payment Date" means, in the case of the first Collection
Period, September 15, 2003, 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.
14
"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
JPMorgan Chase Bank or any of its Affiliates, which is then rated P-1
by Moody's, "F1+" by Fitch (if rated by Fitch) and "A-1+" by Standard &
Poor's;
(iv) certificates of deposit, demand or time deposits, federal
funds or banker's acceptances, other than banker's acceptances issued
by JPMorgan Chase Bank 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-
15
G" by Standard & Poor's, "AAAV-1+" by Fitch (if rated by Fitch) and Aaa
by Moody's; and
(ix) such other investments, other than investments in
JPMorgan Chase Bank 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 XX Xxxxxx Prime Money Market Fund or any other fund for which
JPMorgan Chase Bank, the Indenture Trustee or an Affiliate thereof serves as an
investment advisor, administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (i) JPMorgan Chase Bank, Xxxxx Fargo or an
Affiliate thereof charges and collects fees and expenses from such funds for
services rendered, (ii) JPMorgan Chase Bank, 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 JPMorgan Chase Bank, 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 JPMorgan Chase Bank 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
16
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.
"Projected Weighted Average Life" means, with respect to (a)
the Class A-1 Notes, 0.36, (b) the Class A-2 Notes, 1.05, (c) the Class A-3
Notes, 2.00, (d) the Class A-4 Notes, 3.49 and (e) the Certificates, 2.76.
"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.
17
"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.
"Required Rate" means the sum of (i) the Servicing Fee Rate
and (ii) the percentage equivalent of a fraction, the numerator of which is
equal to the sum of the product for each class of Notes and for the Certificates
of (x) the Interest Rate for such class of Notes or the Certificate Rate, (y)
the Outstanding Amount of the Notes of such class on the Closing Date or the
Certificate Balance on the Closing Date and (z) the Projected Weighted Average
Life with respect to such class of Notes or the Certificates, and the
denominator of which is equal to the sum of the product for each class of Notes
and for the Certificates of (1) the Outstanding Amount of the Notes of such
class on the Closing Date or the Certificate Balance on the Closing Date and (2)
the Projected Weighted Average Life with respect to such class of Notes or the
Certificates.
"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 2003-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 July 25, 2003, 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
$15,000,000.
18
"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 Class R Certificateholder pursuant to
clause (i) of Section 5.7(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, the Reserve Account Control Agreement and
the Yield Supplement Account Control Agreement.
"Securities Intermediaries" means, collectively, JPMorgan
Chase Bank, 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 and the
Yield Supplement 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,
19
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 2.00% of the Pool Balance as of the related Settlement Date,
but in any event will not be less than the lesser of (i) $11,250,000 and (ii)
such Pool Balance; provided that the Specified Reserve Account Balance will be
calculated using a percentage of 4.00% for any Payment Date (beginning with the
November 2003 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.
"Specified Yield Supplement Amount" with respect to any
Payment Date, means an amount equal to the lesser of (a) the Yield Supplement
Account Initial Deposit and (b) the sum of the Yield Supplement Withdrawal
Amounts for all future Payment Dates, assuming that (i) all scheduled payments
on the Yield Supplemented Receivables are made when due, (ii) no prepayments are
made on the Yield Supplemented Receivables and (iii) the investment income on
amounts on deposit in the Yield Supplement Account will be 0.75% per annum.
"Standard & Poor's" means Standard & Poor's Ratings Services
and its successors and assigns.
20
"Statutory Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as amended from time to time.
"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, the Reserve Account and the Yield Supplement
Account.
"Trust Agreement" means the Amended and Restated Trust
Agreement dated as of July 25, 2003, between the Depositor 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, the Reserve Account and the Yield Supplement 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.
"Yield Supplement Account" means securities account no.
00000000 entitled "Xxxxx Fargo Bank Minnesota, National Association, as
Indenture Trustee, Securities Account of Chase Auto Owner Trust Series 2003-B"
maintained by the Yield Supplement Account Securities Intermediary pursuant to
the Yield Supplement Account Control Agreement or any successor securities
account maintained pursuant to the Yield Supplement Account Control Agreement.
"Yield Supplement Account Control Agreement" means the
agreement among the Issuer, Xxxxx Fargo, as securities intermediary, and the
Indenture Trustee, dated as of July 25, 2003, relating to the Yield Supplement
Account, substantially in the form attached as Exhibit E, as the same may be
amended and supplemented from time to time.
"Yield Supplement Account Initial Deposit" means an amount
equal to $3,897,452.46.
"Yield Supplement Account Securities Intermediary" means Xxxxx
Fargo or any other securities intermediary that maintains the Yield Supplement
Account pursuant to the Yield Supplement Account Control Agreement.
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"Yield Supplement Withdrawal Amount" means, for any Payment
Date, an amount equal to the lesser of (i) the amount of cash or other
immediately available funds on deposit in the Yield Supplement Account on such
Payment Date and (ii) the aggregate amount by which one month's interest
(assuming a thirty-day month) on the Principal Balance of each Yield
Supplemented Receivable as of the close of business on the last day of the
second Collection Period preceding such Payment Date at the Required Rate
exceeds one month's interest (assuming a thirty-day month) on such Principal
Balance at the Contract Rate of such Yield Supplemental Receivable.
"Yield Supplemented Receivable" means a Receivable that has a
Contract Rate that is less than the Required Rate.
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 Xxxxxxxxxxx.Xx consideration of the
Issuer's delivery of the Notes, the Certificates and the Class R Certificate to
and upon the order of the Seller, the Seller does hereby sell, transfer, assign,
and otherwise convey to the Issuer, without recourse (subject to the Seller's
obligations herein):
(i) all right, title, and interest of the Seller in, to and
under the Receivables listed in the Schedule of Receivables, which
is incorporated by reference herein, all
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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 LLP, New York, New York
on the Closing Date, simultaneously with the closing of the transactions
contemplated by the underwriting agreements related to the Notes and the
Certificates and the other Basic Documents. Upon the acceptance by the Seller of
the Notes, the Certificates and the Class R Certificate, the ownership of each
Receivable and the contents of the related Receivable File will be vested in the
Issuer, subject only to the lien of the Indenture.
ARTICLE III
THE RECEIVABLES
SECTION 3.1 Representations and Warranties of Seller;
Conditions Relating to Receivables.
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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.
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 nine 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-seven 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;
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(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 were kept at one or
more of the locations specified in Schedule B hereto;
(xi) Characteristics of Receivables. Each Receivable (a) has
been originated in the form of a credit sales transaction by a
Dealer or a purchase money loan or other note through a Dealer
located in one of the States of the United States (including the
District of Columbia) for the retail financing of a Financed Vehicle
and has been fully and properly executed by the parties thereto, (b)
if a retail installment sales contract, has been 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
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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
26
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) Chattel Paper. Each Receivable constitutes either
"tangible chattel paper" or "electronic chattel paper" within the
meaning of the Relevant UCC. In the case of a Receivable
constituting "tangible chattel paper" within the meaning of the
Relevant UCC, there is no more than one original executed copy of
such Receivable, which immediately prior to delivery thereof to the
Servicer (as custodian) for the Issuer, was in the possession of the
Seller. In the case of a Receivable constituting "electronic chattel
paper" within the meaning of the Relevant UCC, (a) there is no more
than one authoritative copy of such Receivable which (i) is unique,
identifiable and unalterable, (ii) has been marked with a unique
encrypted numerical identifier and (iii) was communicated to and
maintained by the Seller, and (b) the Seller has not communicated an
authoritative copy of such Receivable to any Person;
(xxvi) Excluded Loans. Each Receivable is not a Receivable
originated by or through a Dealer located in the State of Alabama,
Maine 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
27
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 Xxxxx.Xx 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 authoritative copies, documents or
instruments (the "Receivable Files") which are hereby constructively delivered
to the Issuer with respect to each Receivable:
(i) in the case of a Receivable constituting "tangible chattel
paper" within the meaning of the Relevant UCC, the original executed
copy of such Receivable or, in the case of a Receivable constituting
"electronic chattel paper" within the meaning of the Relevant UCC,
the authoritative copy of such 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.
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
28
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.
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.
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.
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.
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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 and/or electronically communicate 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
30
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.
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
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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.
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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)(A) in the case of the first Payment Date, the product
of 45 multiplied by 1/360 of the Servicing Fee Rate and the Pool Balance as of
the Cutoff Date or (B) for all other Payment Dates, 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
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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 5.9. 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, 2004, 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.
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
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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, 2004 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
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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 5.9 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 separate trust account in 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
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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.
On or prior to the Closing Date, the Servicer shall establish and maintain for
the benefit of the Noteholders, in the name of the Indenture Trustee, an
Eligible Deposit Account for the deposit of distributions to the Noteholders
(the "Note Distribution Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Noteholders. The
Note Distribution Account shall be established initially at JPMorgan Chase Bank.
Should any depositary of the Note Distribution Account or the Certificate
Distribution Account (including JPMorgan Chase Bank (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.
The Indenture Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Note Distribution Account and in all
proceeds thereof and all such funds, investments, proceeds and income shall be
part of the Owner Trust Estate.
SECTION 5.2 Collections.(A) The Servicer shall remit daily
within forty-eight hours of receipt to the Collection Account all Collections
collected during the Collection Period. Chase USA has requested that, so long as
it is acting as the Servicer, the Servicer be permitted to make remittances of
Collections on a less frequent basis than that specified in the immediately
preceding sentence. It is understood that such less frequent remittances may be
made only on the specific terms and conditions set forth below in this Section
5.2 and only for so long as such terms and conditions are fulfilled.
Accordingly, notwithstanding the provisions of the first sentence of this
Section 5.2, the Servicer shall remit such collections to the Collection Account
in Automated Clearinghouse Corporation next-day funds or immediately available
funds no later than 11:00 a.m., New York City time, on the Deposit Date, but
only for so long as (i) the short-term certificate of deposit ratings of the
Servicer are at least P-1 by Moody's, "F1" by Fitch (if rated by Fitch) and
"A-1" by Standard & Poor's, or the Rating Agency Condition is satisfied as a
result of Collections being remitted on a monthly, rather than daily, basis and
(ii) the Servicer shall be Chase USA or JPMorgan Chase Bank. 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.
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(b) Notwithstanding anything in this Agreement to the
contrary, if the Servicer inadvertently deposits amounts that it mistakenly
believes are Collections resulting in the payment in full of a Receivable, and
(i) the Servicer discovers its error prior to the Payment following such
deposit, the Indenture Trustee, at the written direction of the Servicer, shall
withdraw such amounts and pay them to the Servicer or (ii) the Servicer shall be
deemed to have purchased such Receivable pursuant to Section 4.6 as of the last
day of the Collection Period during which such error shall have occurred.
SECTION 5.3 [Reserved].
SECTION 5.4 Additional Deposits.The Servicer, or the Seller,
as the case may be, shall deposit into the Collection Account the aggregate
Repurchase Amount pursuant to Sections 3.2, 4.6 and 9.1(a), as applicable. All
remittances shall be made to the Collection Account, in Automated Clearinghouse
Corporation next-day funds or immediately available funds, no later than 11
a.m., New York City time, on the Deposit Date.
SECTION 5.5 Distributions.(A) No later than 12 noon, New York
City time, on each Determination Date, the Servicer shall calculate all amounts
required to determine the amounts to be withdrawn from the Yield Supplement
Account and 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 Class R Certificateholder pursuant to Sections 5.6(d) and
5.7(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 Yield Supplement Account and deposit in the
Collection Account the Yield Supplement Withdrawal Amount for the related
Payment Date and 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 Yield
Supplement Withdrawal Amount and the Reserve Account Transfer Amount (if any)
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 5.8;
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(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 Yield Supplement Account.(a) On or prior to the
Closing Date, the Issuer, the Yield Supplement Account Securities Intermediary
and the Indenture Trustee shall have entered into the Yield Supplement Account
Control Agreement pursuant to which the Yield Supplement 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 Yield Supplement Account
Initial Deposit into the Yield Supplement Account. No additional deposits will
be made to the Yield Supplement Account after the Closing Date.
(b) If the depositary of the Yield Supplement Account ceases
to be either a Qualified Institution or a Qualified Trust Institution, as
applicable, the Issuer shall cause the Yield Supplement Account to be moved to a
Qualified Institution or a separate trust account in a Qualified Trust
Institution and the Indenture Trustee shall cause the depositary maintaining the
new Yield Supplement Account to assume the obligations of the existing Yield
Supplement Account Securities Intermediary under the Yield Supplement Account
Control Agreement unless
39
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 Yield Supplement Account shall be
invested in accordance with the Yield Supplement Account Control Agreement at
the written direction of the Class R Certificateholder to the extent provided in
Section 8.3(a) and Section 8.3(c) of the Indenture in Permitted Investments that
mature not later than the Deposit Date next succeeding the date of investment
except, if the Yield Supplement 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
Yield Supplement 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 Yield Supplement 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 Yield Supplement Account and pay to the Class R Certificateholder an
amount equal to the excess, if any, of the amount on deposit in the Yield
Supplement Account on such Payment Date (after giving effect to the withdrawal
of the Yield Supplement Withdrawal Amount for such Payment Date) over the
Specified Yield Supplement Amount with respect to such Payment Date.
SECTION 5.7 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 separate trust account in a Qualified Trust Institution and the
Indenture Trustee shall cause the depositary maintaining the new Reserve Account
to assume the obligations of the existing Reserve Account Securities
Intermediary under the Reserve Account Control Agreement unless the Rating
Agency Condition is satisfied in connection with such depositary's ceasing to be
a Qualified Institution or a Qualified Trust Institution, as the case may be.
(c) All amounts held in the Reserve Account shall be invested
in accordance with the Reserve Account Control Agreement at the written
direction of the Class R Certificateholder to the extent provided in Section
8.3(a) and Section 8.3(c) of the Indenture in Permitted Investments that mature
not later than the Deposit Date next succeeding the date of investment except,
if the Reserve Account Securities Intermediary and the Indenture Trustee are the
same Person, investments on which the Indenture Trustee is the obligor
(including repurchase agreements on which the Indenture Trustee, in its
commercial capacity, is liable as principal) may mature on the next succeeding
Payment Date; provided, however, that amounts on deposit
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in the Reserve Account may be invested in Permitted Investments that mature
later than the next succeeding Deposit Date, but in no event that mature later
than 90 days after the date of investment, if the Rating Agency Condition is
satisfied. Once amounts on deposit in the Reserve Account are invested in
Permitted Investments, such Permitted Investments must be held or maintained
until they mature on or before the dates described above.
(d) On each Payment Date, the Indenture Trustee shall withdraw
from the Reserve Account and pay to the Class R Certificateholder the sum of (i)
all investment earnings (net of losses and investment expenses) credited to the
Reserve Account since the prior Payment Date and (ii) the excess, if any, of the
amount on deposit in the Reserve Account over the Specified Reserve Account
Balance with respect to such Payment Date (after giving effect to all deposits
therein or withdrawals therefrom on such Payment Date). Upon any distribution to
the Class R Certificateholder of amounts from the Reserve Account, the Holders
will have no rights in, or claims, to, such amounts. Amounts properly
distributed to the Class R Certificateholder from the Reserve Account shall not
be available under any circumstances to the Indenture Trustee, and the Class R
Certificateholder shall not in any event thereafter be required to refund any
such distributed amounts.
SECTION 5.8 Net Xxxxxxxx.Xxxxx 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 5.9 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;
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(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 Yield Supplement Account on such
Payment Date, after giving effect to the withdrawal of the Yield
Supplement Withdrawal Amount for such Payment Date;
(x) 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;
(xi) the Specified Reserve Account Balance for such Payment
Date;
(xii) the Total Distribution Amount for such Payment Date;
(xiii) the Noteholders' Distributable Amount and the
components thereof;
(xiv) the Certificateholders' Distributable Amount and the
components thereof;
(xv) the Yield Supplement Withdrawal Amount for such Payment
Date; and
(xvi) 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
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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.
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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.
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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,
45
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,
46
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
47
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 Class R Certificateholder from the Reserve Account pursuant to Section
5.7(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 Class R Certificateholder from the Reserve Account
pursuant to Section 5.7(d) and from amounts distributable to the Class R
Certificateholder from the Yield Supplement 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 Xxxxxx.Xx 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
48
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
49
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
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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
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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 Yield Supplement Account and the Reserve Account (including the
proceeds of any sale of investments therein):
(i) to the Note Distribution Account, any portion of the
Noteholders' Interest Distributable Amount not otherwise deposited
into the Note Distribution Account on such Payment Date;
(ii) to the Note Distribution Account, the Outstanding Amount
of the Notes (after giving effect to the reduction in the
Outstanding Amount of the Notes resulting from the deposits made in
the Note Distribution Account on such Payment Date);
(iii) to the Certificate Distribution Account, any portion of
the Certificateholders' Interest Distributable Amount not otherwise
deposited into the Certificate Distribution Account on such Payment
Date; and
(iv) to the Certificate Distribution Account, the Certificate
Balance and any Certificateholders' Principal Carryover Shortfall
(after giving effect to the reduction in the Certificate Balance
resulting from the deposits made in the Certificate Distribution
Account on such Payment Date).
Any Sale Proceeds remaining after the deposits described above shall be paid to
the Class R Certificateholder.
(c) Notice of any termination of the Issuer shall be given by
the Servicer to the Owner Trustee, the Indenture Trustee and the Rating Agencies
as soon as practicable after the Servicer has received notice thereof.
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(d) After the payment to the Indenture Trustee, the Owner
Trustee, the Holders and the Servicer of all amounts required to be paid under
this Agreement, the Indenture and the Trust Agreement, any amounts on deposit in
the Yield Supplement Account, the Reserve Account or the Collection Account
shall be paid to the Class R Certificateholder, and any other assets remaining
in the Owner Trust Estate shall be distributed to the Class R Certificateholder.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment.This Agreement may be amended by the
Seller, the Servicer and the Owner Trustee, on behalf of the Issuer, with the
prior consent of the Indenture Trustee and prior notice to the Rating Agencies
but without prior notice to or the consent of any of the Holders, (i) to cure
any ambiguity, to correct or supplement any provisions in this Agreement which
may be inconsistent with any other provisions herein, to evidence a succession
to the Servicer or the Seller pursuant to this Agreement or to add any other
provisions with respect to matters or questions arising under this Agreement
that shall not be inconsistent 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 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 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.
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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 desirable to preserve, maintain, and protect
the interests of the Issuer and the Indenture Trustee in the Receivables and the
proceeds thereof.
(b) Neither the Seller nor the Servicer shall change its name
in any manner that would, could, or might make any financing statement or
continuation statement filed by the Seller in accordance with paragraph (a)
above seriously misleading within the meaning of ss. 9-506 (or any comparable
section) of the Relevant UCC, unless it shall have given the Owner Trustee and
the Indenture Trustee at least 30 days prior written notice thereof.
(c) The Seller and the Servicer shall give the Owner Trustee
and the Indenture Trustee at least 60 days prior written notice of any change in
the jurisdiction of its organization or the State designated as its location in
its Articles of Association if, as a result of such change in jurisdiction or
the State designated as its location in its Articles of Association, the
applicable provisions of the Relevant UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement. The Servicer shall at all times maintain each office
from which it shall service Receivables or at which the Receivable Files are
located within the United States of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of
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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, 2004, 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
55
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.
56
SECTION 10.6 Assignment.Notwithstanding anything to the
contrary contained herein, except as provided in Sections 6.3, 7.3, 7.5 and 8.2,
neither the Seller nor the Servicer may assign all, or a portion of, its rights,
obligations and duties under this Agreement unless such transfer or assignment
satisfies the Rating Agency Condition. In the event of a transfer or assignment
pursuant to this Section 10.6, the Rating Agencies shall be provided with notice
of such transfer or assignment.
SECTION 10.7 Certificates and Notes Nonassessable and Fully
Paid.The interests represented by the Certificates and Notes shall be
nonassessable for any losses or expenses of the Issuer or for any reason
whatsoever, and, upon authentication thereof by the Indenture Trustee and the
Owner Trustee pursuant to the Trust Agreement and the Indenture, respectively,
each Certificate and Note shall be deemed fully paid.
SECTION 10.8 Third-Party Beneficiaries.This Agreement will
inure to the benefit of and be binding upon the parties hereto, and their
respective successors and permitted assigns. The Administrator, the Owner
Trustee, individually and on behalf of the Certificateholders and the Class R
Certificateholder, and the Indenture Trustee, individually and on behalf of the
Noteholders are third-party beneficiaries to this Agreement and are entitled to
the rights and benefits hereunder and may enforce the provisions hereof as it
were a party hereto. 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,
57
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.
SECTION 10.12 Disclosure.Notwithstanding anything herein to
the contrary, Chase USA and the Issuer (and any employee, representative or
other agent of both Chase USA and the Issuer) may disclose to any and all
persons, without limitation of any kind, the U.S. federal income tax treatment
and tax structure of the transactions contemplated by this Agreement and all
materials of any kind (including opinions or other tax analyses) that are
provided to it relating to such tax treatment and tax structure. However, any
such information relating to the U.S. federal income tax treatment or tax
structure is required to be kept confidential to the extent necessary to comply
with any applicable federal or state securities laws.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as Seller
and Servicer
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
CHASE MANHATTAN AUTO OWNER TRUST
2003-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 X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
Acknowledged and Accepted:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely in its capacity
as Indenture Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT C
FORM OF COLLECTION ACCOUNT CONTROL AGREEMENT
Collection Account Control Agreement, dated as of July 25,
2003 among Chase Manhattan Auto Owner Trust 2003-B, a Delaware statutory trust
(the "Issuer"), Xxxxx Fargo bank Minnesota, National Association, a national
banking association, not in its individual capacity but solely as indenture
trustee (the "Secured Party"), and JPMORGAN CHASE BANK, a New York banking
corporation (the "Securities Intermediary"). Capitalized terms used but not
defined herein shall have the meanings assigned in Section 1.1 of the Sale and
Servicing Agreement between the Issuer and Chase Manhattan Bank USA, National
Association, dated as of July 25, 2003, as the same may be amended and
supplemented from time to time (the "Sale and Servicing Agreement"). All
references herein to the "UCC" shall mean the Uniform Commercial Code as in
effect in the State of New York.
1. Establishment of Collection Account. The Securities
Intermediary hereby confirms that (a) the Securities Intermediary has
established the Collection Account, (b) the Collection Account is a "securities
account" as such term is defined in ss.8-501(a) of the UCC, (c) the Securities
Intermediary shall, subject to the terms of this Agreement, treat the Issuer as
entitled to exercise the rights that comprise any financial asset credited to
the Collection Account, (d) all property delivered to the Securities
Intermediary pursuant to the Sale and Servicing Agreement for deposit in the
Collection Account will be promptly credited to the Securities Account and (e)
all securities or other property underlying any financial assets credited to the
Collection Account shall be registered in the name of the Securities
Intermediary, indorsed to the Securities Intermediary or in blank or credited to
another securities account maintained in the name of the Securities Intermediary
and in no case will any financial asset credited to the Collection Account be
registered in the name of the Issuer, payable to the order of the Issuer or
specially indorsed to the Issuer except to the extent the foregoing have been
specially indorsed to the Securities Intermediary or in blank.
2. Treatment as "Financial Assets". The Securities
Intermediary hereby agrees that each item of property (whether investment
property, financial asset, security, instrument or cash) credited to the
Collection Account shall be treated as a "financial asset" within the meaning of
ss.8-102(a)(9) of the UCC. The Securities Intermediary agrees that any interest,
cash dividends or other cash distributions received in respect of any Permitted
Investments and the net proceeds of any sale or payment of any Permitted
Investments shall be promptly credited to the Collection Account.
3. Control by Secured Party. At all times prior to the
termination of this Agreement as provided in Section 17, the Securities
Intermediary shall take instructions and directions and act upon "entitlement
orders" (within the meaning of ss.8-102(a)(8) of the UCC) issued by the Secured
Party without further consent by the Issuer. Except as otherwise provided in
this Section, the Securities Intermediary shall also comply with entitlement
orders originated by the Issuer or the Servicer on behalf of the Issuer without
further consent by the Secured Party. If the Secured Party notifies the
Securities Intermediary that the Secured Party will exercise exclusive control
over the Collection Account, the Securities Intermediary shall not comply with
entitlement orders or other directions issued by the Issuer or the Servicer on
behalf of the Issuer. Funds on deposit in the Collection Account shall be
invested in Permitted Investments selected by the Issuer or the Servicer on
behalf of the Issuer or by the Secured Party to the extent
provided in Section 8.3(a) and Section 8.3(c) of the Indenture. At all times
prior to the termination of this Agreement as provided in Section 17, no
property shall be released from the Collection Account except upon the written
instructions of the Secured Party or the Paying Agent.
4. Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Collection Account and/or any financial assets
credited thereto simultaneously to each of the Servicer and the Secured Party at
the address set forth in Section 12.
5. Tax Allocations. All items of income, gain, expense and
loss recognized in the Collection Account shall be reported to the Internal
Revenue Service and all state and local taxing authorities under the name and
taxpayer identification number of the Issuer.
6. Securities Intermediary's Jurisdiction. This Agreement, the
Collection Account and the rights and obligations of the Securities
Intermediary, the Secured Party and the Issuer with respect thereto shall be
governed by the laws of the State of New York. Regardless of any provision in
any other agreement, for purposes of the Relevant UCC, New York shall be deemed
to be the Securities Intermediary's jurisdiction and the Collection Account (as
well as the securities entitlements related thereto) shall be governed by the
laws of the State of New York.
7. Subordination of Lien; Waiver of Set-Off. In the event that
the Securities Intermediary has or subsequently obtains by agreement, operation
of law or otherwise a security interest in the Collection Account or any
security entitlement credited thereto, the Securities Intermediary hereby agrees
that such security interest shall be subordinate to the security interest of the
Secured Party. The financial assets and other items deposited to the Collection
Account will not be subject to deduction, set-off, banker's lien, or any other
right in favor of any Person other than the Secured Party.
8. Notice of Adverse Claims. Except for the claims and
interest of the Secured Party and of the Issuer in the Collection Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Collection Account or in any "financial asset" (as defined in ss.8-102(a)(9) of
the UCC) credited thereto. If any Person asserts any lien, encumbrance or
adverse claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against the Collection Account or in any financial
asset credited thereto, the Securities Intermediary will promptly notify the
Secured Party and the Issuer thereof.
9. Amendments. No amendment or modification of this Agreement
or waiver of any right hereunder shall be binding on any party hereto unless it
is in writing and is signed by all of the parties hereto.
10. Representations, Warranties and Covenants of the
Securities Intermediary. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(A) The Collection Account has been established as set forth
in Section 1 above and the Collection Account will be maintained in
the manner set forth herein until termination of this Agreement. The
Securities Intermediary shall not change the name or account number
of the Collection Account without the prior written consent of the
Secured Party.
(B) No financial asset is or will be registered in the name of
the Issuer, payable to its order, or specially endorsed to it,
except to the extent such financial asset has been endorsed to the
Securities Intermediary or in blank.
(C) This Agreement is the valid and legally binding obligation
of the Securities Intermediary.
(D) The Securities Intermediary has not entered into, and
until the termination of this Agreement will not enter into, any
agreement with any other person relating to any of the Collection
Account and/or any financial assets credited thereto pursuant to
which it has agreed to comply with entitlement orders (as defined in
ss.8-102(a) (8) of the UCC) of such person. The Securities
Intermediary has not entered into any other agreement with the
Issuer or the Secured Party purporting to limit or condition the
obligation of the Securities Intermediary to comply with entitlement
orders as set forth in Section 3.
(E) The Securities Intermediary is a "securities intermediary"
(as defined in ss.8-102(a)(14) of the UCC) and is acting in such
capacity with respect to the Collection Account.
(F) The Securities Intermediary is not a "clearing
corporation" (as defined in ss.8-102(a)(5) of the UCC).
11. Successors. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
12. Notices. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth below.
Issuer: c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Secured Party: Xxxxx Fargo Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC: N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Securities Intermediary: JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Structured Finance/Chase Auto
Any party may change his address for notices in the manner set
forth above.
13. Removal of Securities Intermediary. The Secured Party
acting at the direction of the Issuer shall remove the Securities Intermediary
if it ceases to be a Qualified Institution or a Qualified Trust Institution
unless the Rating Agency Condition is satisfied in connection with the
Securities Intermediary's ceasing to be a Qualified Institution or a Qualified
Trust Institution and appoint a Qualified Institution or a Qualified Trust
Institution to act as successor Securities Intermediary hereunder. No removal of
the Securities Intermediary shall become effective until a successor Securities
Intermediary shall have been appointed by the Secured Party hereunder and shall
have accepted such appointment in writing. Upon the appointment of a successor
Securities Intermediary and its acceptance of such appointment, the removed
Securities Intermediary shall transfer all items of property held by it to such
successor (which items of property shall be transferred to a new Collection
Account established and maintained by such successor). Following such
appointment all references herein to Securities Intermediary shall be deemed a
reference to such successor.
14. Indenture Trustee as Secured Party. The Secured Party
shall at all times be the same Person that is the Indenture Trustee under the
Indenture. Resignation or removal of the Indenture Trustee under the Indenture
shall also constitute substitution of a successor Secured Party under this
Agreement. Upon the acceptance of any appointment as successor Indenture Trustee
under the Indenture, that successor Indenture Trustee shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Secured Party under this Agreement, and the retiring or
removed Secured Party under this Agreement shall promptly transfer to such
successor Secured Party all items of property held by the Secured Party,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Secured Party
under this Agreement, whereupon such retiring or removed Secured Party shall be
discharged from its duties and obligations under this Agreement.
15. No Petition. The Securities Intermediary, by entering into
this Agreement, hereby covenants and agrees that it 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.
16. Limitation of Liability. (a) Notwithstanding anything
contained herein to the contrary, this instrument has been signed 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 any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, 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
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) No recourse under any obligation, covenant or agreement of
the Issuer contained in this Agreement shall be had against any agent of the
Issuer (including the Administrator) as such by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is
solely an obligation of the Issuer as a Delaware statutory trust, and that no
personal liability whatsoever shall attach to or be incurred by any agent of the
Issuer (including the Administrator), as such, under or by reason of any of the
obligations, covenants or agreements of the Issuer contained in this Agreement,
or implied therefrom, and that any and all personal liability for breaches by
the Issuer of any such obligations, covenants or agreements, either at common
law or at equity, or by statute or constitution, of every such agent is hereby
expressly waived as a condition of and in consideration for the execution of
this Agreement.
17. Termination. The rights and powers granted herein to the
Secured Party have been granted in order to perfect its security interests in
the Collection Account, are powers coupled with an interest and will neither be
affected by the bankruptcy of the Issuer nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the security interests of the Secured Party in the Collection Account has
been terminated pursuant to the terms of the Indenture, all distributions in
respect of the Certificate Balance and interest due to the Certificateholders
has been paid in full and the Secured Party has notified the Securities
Intermediary of the occurrence of such events in writing.
18. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered as of the day and year first above written.
CHASE MANHATTAN AUTO OWNER TRUST 2003-B
By: WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely as Owner Trustee
By:
-------------------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Secured Party
By:
-------------------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Securities
Intermediary
By:
-------------------------------------------------
Name:
Title:
EXHIBIT D
FORM OF RESERVE ACCOUNT CONTROL AGREEMENT
RESERVE Account Control Agreement, dated as of July 25, 2003
among Chase Manhattan Auto Owner Trust 2003-B, a Delaware statutory trust (the
"Issuer"), Xxxxx Fargo BANK Minnesota, National Association, a national banking
association, not in its individual capacity but solely as indenture trustee (the
"Secured Party"), and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association (the "Securities Intermediary"). Capitalized terms
used but not defined herein shall have the meanings assigned in Section 1.1 of
the Sale and Servicing Agreement between the Issuer and Chase Manhattan Bank
USA, National Association, dated as of July 25, 2003, as the same may be amended
and supplemented from time to time (the "Sale and Servicing Agreement"). All
references herein to the "UCC" shall mean the Uniform Commercial Code as in
effect in the State of New York.
1. Establishment of Reserve Account. The Securities
Intermediary hereby confirms that (a) the Securities Intermediary has
established the Reserve Account, (b) the Reserve Account is a "securities
account" as such term is defined in ss.8-501(a) of the UCC, (c) the Securities
Intermediary shall, subject to the terms of this Agreement, treat the Issuer as
entitled to exercise the rights that comprise any financial asset credited to
the Reserve Account, (d) all property delivered to the Securities Intermediary
pursuant to the Sale and Servicing Agreement for deposit in the Reserve Account
will be promptly credited to the Securities Account and (e) all securities or
other property underlying any financial assets credited to the Reserve Account
shall be registered in the name of the Securities Intermediary, indorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will any
financial asset credited to the Reserve Account be registered in the name of the
Issuer, payable to the order of the Issuer or specially indorsed to the Issuer
except to the extent the foregoing have been specially indorsed to the
Securities Intermediary or in blank.
2. Treatment as "Financial Assets". The Securities
Intermediary hereby agrees that each item of property (whether investment
property, financial asset, security, instrument or cash) credited to the Reserve
Account shall be treated as a "financial asset" within the meaning of
ss.8-102(a)(9) of the UCC. The Securities Intermediary agrees that any interest,
cash dividends or other cash distributions received in respect of any Permitted
Investments and the net proceeds of any sale or payment of any Permitted
Investments shall be promptly credited to the Reserve Account.
3. Control by Secured Party. At all times prior to the
termination of this Agreement as provided in Section 17, the Securities
Intermediary shall take instructions and directions and act upon "entitlement
orders" (within the meaning of ss.8-102(a)(8) of the UCC) issued by the Secured
Party without further consent by the Issuer. Except as otherwise provided in
this Section, the Securities Intermediary shall also comply with entitlement
orders originated by the Issuer or the Class R Certificateholder without further
consent by the Secured Party. If the Secured Party notifies the Securities
Intermediary that the Secured Party will exercise exclusive control over the
Reserve Account, the Securities Intermediary shall not comply with entitlement
orders or other directions issued by the Issuer or the Class R
Certificateholder. Funds on deposit in the Reserve Account shall be invested in
Permitted Investments selected by the Issuer or the Class R Certificateholder or
by the Secured Party to the extent provided in Section 8.3(a) and Section 8.3(c)
of the Indenture. At all times prior to the termination of this
Agreement as provided in Section 17, no property shall be released from the
Reserve Account except upon the written instructions of the Secured Party or the
Paying Agent.
4. Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Reserve Account and/or any financial assets
credited thereto simultaneously to each of the Servicer and the Secured Party at
the address set forth in Section 12.
5. Tax Allocations. All items of income, gain, expense and
loss recognized in the Reserve Account shall be reported to the Internal Revenue
Service and all state and local taxing authorities under the name and taxpayer
identification number of the Issuer.
6. Securities Intermediary's Jurisdiction. This Agreement, the
Reserve Account and the rights and obligations of the Securities Intermediary,
the Secured Party and the Issuer with respect thereto shall be governed by the
laws of the State of New York. Regardless of any provision in any other
agreement, for purposes of the Relevant UCC, New York shall be deemed to be the
Securities Intermediary's jurisdiction and the Reserve Account (as well as the
securities entitlements related thereto) shall be governed by the laws of the
State of New York.
7. Subordination of Lien; Waiver of Set-Off. In the event that
the Securities Intermediary has or subsequently obtains by agreement, operation
of law or otherwise a security interest in the Reserve Account or any security
entitlement credited thereto, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interest of the
Secured Party. The financial assets and other items deposited to the Reserve
Account will not be subject to deduction, set-off, banker's lien, or any other
right in favor of any Person other than the Secured Party.
8. Notice of Adverse Claims. Except for the claims and
interest of the Secured Party and of the Issuer in the Reserve Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Reserve Account or in any "financial asset" (as defined in ss.8-102(a)(9) of the
UCC) credited thereto. If any Person asserts any lien, encumbrance or adverse
claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against the Reserve Account or in any financial
asset credited thereto, the Securities Intermediary will promptly notify the
Secured Party and the Issuer thereof.
9. Amendments. No amendment or modification of this Agreement
or waiver of any right hereunder shall be binding on any party hereto unless it
is in writing and is signed by all of the parties hereto.
10. Representations, Warranties and Covenants of the
Securities Intermediary. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
(A) The Reserve Account has been established as set forth in
Section 1 above and the Reserve Account will be maintained in the
manner set forth herein until termination of this Agreement. The
Securities Intermediary shall not change the name or account number
of the Reserve Account without the prior written consent of the
Secured Party.
(B) No financial asset is or will be registered in the name of
the Issuer, payable to its order, or specially endorsed to it,
except to the extent such financial asset has been endorsed to the
Securities Intermediary or in blank.
(C) This Agreement is the valid and legally binding obligation
of the Securities Intermediary.
(D) The Securities Intermediary has not entered into, and
until the termination of this Agreement will not enter into, any
agreement with any other person relating to any of the Reserve
Account and/or any financial assets credited thereto pursuant to
which it has agreed to comply with entitlement orders (as defined in
ss.8-102(a) (8) of the UCC) of such person. The Securities
Intermediary has not entered into any other agreement with the
Issuer or the Secured Party purporting to limit or condition the
obligation of the Securities Intermediary to comply with entitlement
orders as set forth in Section 3.
(E) The Securities Intermediary is a "securities intermediary"
(as defined in ss.8-102(a)(14) of the UCC) and is acting in such
capacity with respect to the Reserve Account.
(F) The Securities Intermediary is not a "clearing
corporation" (as defined in ss.8-102(a)(5) of the UCC).
11. Successors. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
12. Notices. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth below.
Issuer: c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Secured Party: Xxxxx Fargo Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC: N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Securities Intermediary: Xxxxx Fargo Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC: N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Any party may change his address for notices in the manner set
forth above.
13. Removal of Securities Intermediary. The Secured Party
acting at the direction of the Issuer shall remove the Securities Intermediary
if it ceases to be a Qualified Institution or a Qualified Trust Institution
unless the Rating Agency Condition is satisfied in connection with the
Securities Intermediary's ceasing to be a Qualified Institution or a Qualified
Trust Institution and appoint a Qualified Institution or a Qualified Trust
Institution to act as successor Securities Intermediary hereunder. No removal of
the Securities Intermediary shall become effective until a successor Securities
Intermediary shall have been appointed by the Secured Party hereunder and shall
have accepted such appointment in writing. Upon the appointment of a successor
Securities Intermediary and its acceptance of such appointment, the removed
Securities Intermediary shall transfer all items of property held by it to such
successor (which items of property shall be transferred to a new Reserve Account
established and maintained by such successor). Following such appointment all
references herein to Securities Intermediary shall be deemed a reference to such
successor.
14. Indenture Trustee as Secured Party. The Secured Party
shall at all times be the same Person that is the Indenture Trustee under the
Indenture. Resignation or removal of the Indenture Trustee under the Indenture
shall also constitute substitution of a successor Secured Party under this
Agreement. Upon the acceptance of any appointment as successor Indenture Trustee
under the Indenture, that successor Indenture Trustee shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Secured Party under this Agreement, and the retiring or
removed Secured Party under this Agreement shall promptly transfer to such
successor Secured Party all items of property held by the Secured Party,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Secured Party
under this Agreement, whereupon such retiring or removed Secured Party shall be
discharged from its duties and obligations under this Agreement.
15. No Petition. The Securities Intermediary, by entering into
this Agreement, hereby covenants and agrees that it 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.
16. Limitation of Liability. (a) Notwithstanding anything
contained herein to the contrary, this instrument has been signed 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 any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, 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
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) No recourse under any obligation, covenant or agreement of
the Issuer contained in this Agreement shall be had against any agent of the
Issuer (including the Administrator) as such by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is
solely an obligation of the Issuer as a Delaware statutory trust, and that no
personal liability whatsoever shall attach to or be incurred by any agent of the
Issuer (including the Administrator), as such, under or by reason of any of the
obligations, covenants or agreements of the Issuer contained in this Agreement,
or implied therefrom, and that any and all personal liability for breaches by
the Issuer of any such obligations, covenants or agreements, either at common
law or at equity, or by statute or constitution, of every such agent is hereby
expressly waived as a condition of and in consideration for the execution of
this Agreement.
17. Termination. The rights and powers granted herein to the
Secured Party have been granted in order to perfect its security interests in
the Reserve Account, are powers coupled with an interest and will neither be
affected by the bankruptcy of the Issuer nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the security interests of the Secured Party in the Reserve Account has
been terminated pursuant to the terms of the Indenture, all distributions in
respect of the Certificate Balance and interest due to the Certificateholders
have been paid in full and the Secured Party has notified the Securities
Intermediary of the occurrence of such events in writing.
18. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered as of the day and year first above written.
CHASE MANHATTAN AUTO OWNER TRUST
2003-B
By: WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely as Owner Trustee
By:
-------------------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Secured Party
By:
-------------------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Securities
Intermediary
By:
-------------------------------------------------
Name:
Title:
EXHIBIT E
FORM OF YIELD SUPPLEMENT ACCOUNT CONTROL AGREEMENT
Yield Supplement Account Control Agreement, dated as of July
25, 2003 among Chase Manhattan Auto Owner Trust 2003-B, a Delaware statutory
trust (the "Issuer"), Xxxxx Fargo BANK Minnesota, National Association, a
national banking association, not in its individual capacity but solely as
indenture trustee (the "Secured Party"), and XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association (the "Securities
Intermediary"). Capitalized terms used but not defined herein shall have the
meanings assigned in Section 1.1 of the Sale and Servicing Agreement between the
Issuer and Chase Manhattan Bank USA, National Association, dated as of July 25,
2003, as the same may be amended and supplemented from time to time (the "Sale
and Servicing Agreement"). All references herein to the "UCC" shall mean the
Uniform Commercial Code as in effect in the State of New York.
1. Establishment of Yield Supplement Account. The Securities
Intermediary hereby confirms that (a) the Securities Intermediary has
established the Yield Supplement Account, (b) the Yield Supplement Account is a
"securities account" as such term is defined in ss.8-501(a) of the UCC, (c) the
Securities Intermediary shall, subject to the terms of this Agreement, treat the
Issuer as entitled to exercise the rights that comprise any financial asset
credited to the Yield Supplement Account, (d) all property delivered to the
Securities Intermediary pursuant to the Sale and Servicing Agreement for deposit
in the Yield Supplement Account will be promptly credited to the Securities
Account and (e) all securities or other property underlying any financial assets
credited to the Yield Supplement Account shall be registered in the name of the
Securities Intermediary, indorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name of the Securities
Intermediary and in no case will any financial asset credited to the Yield
Supplement Account be registered in the name of the Issuer, payable to the order
of the Issuer or specially indorsed to the Issuer except to the extent the
foregoing have been specially indorsed to the Securities Intermediary or in
blank.
2. Treatment as "Financial Assets". The Securities
Intermediary hereby agrees that each item of property (whether investment
property, financial asset, security, instrument or cash) credited to the Yield
Supplement Account shall be treated as a "financial asset" within the meaning of
ss.8-102(a)(9) of the UCC. The Securities Intermediary agrees that any interest,
cash dividends or other cash distributions received in respect of any Permitted
Investments and the net proceeds of any sale or payment of any Permitted
Investments shall be promptly credited to the Yield Supplement Account.
3. Control by Secured Party. At all times prior to the
termination of this Agreement as provided in Section 17, the Securities
Intermediary shall take instructions and directions and act upon "entitlement
orders" (within the meaning of ss.8-102(a)(8) of the UCC) issued by the Secured
Party without further consent by the Issuer. Except as otherwise provided in
this Section, the Securities Intermediary shall also comply with entitlement
orders originated by the Issuer or the Class R Certificateholder without further
consent by the Secured Party. If the Secured Party notifies the Securities
Intermediary that the Secured Party will exercise exclusive control over the
Yield Supplement Account, the Securities Intermediary shall not comply with
entitlement orders or other directions issued by the Issuer or the Class R
Certificateholder. Funds on deposit in the Yield Supplement Account shall be
invested in Permitted Investments selected by the Issuer or the Class R
Certificateholder or by the Secured
9
Party to the extent provided in Section 8.3(a) and Section 8.3(c) of the
Indenture. At all times prior to the termination of this Agreement as provided
in Section 17, no property shall be released from the Yield Supplement Account
except upon the written instructions of the Secured Party or the Paying Agent.
4. Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Yield Supplement Account and/or any financial
assets credited thereto simultaneously to each of the Servicer and the Secured
Party at the address set forth in Section 12.
5. Tax Allocations. All items of income, gain, expense and
loss recognized in the Yield Supplement Account shall be reported to the
Internal Revenue Service and all state and local taxing authorities under the
name and taxpayer identification number of the Issuer.
6. Securities Intermediary's Jurisdiction. This Agreement, the
Yield Supplement Account and the rights and obligations of the Securities
Intermediary, the Secured Party and the Issuer with respect thereto shall be
governed by the laws of the State of New York. Regardless of any provision in
any other agreement, for purposes of the Relevant UCC, New York shall be deemed
to be the Securities Intermediary's jurisdiction and the Yield Supplement
Account (as well as the securities entitlements related thereto) shall be
governed by the laws of the State of New York.
7. Subordination of Lien; Waiver of Set-Off. In the event that
the Securities Intermediary has or subsequently obtains by agreement, operation
of law or otherwise a security interest in the Yield Supplement Account or any
security entitlement credited thereto, the Securities Intermediary hereby agrees
that such security interest shall be subordinate to the security interest of the
Secured Party. The financial assets and other items deposited to the Yield
Supplement Account will not be subject to deduction, set-off, banker's lien, or
any other right in favor of any Person other than the Secured Party.
8. Notice of Adverse Claims. Except for the claims and
interest of the Secured Party and of the Issuer in the Yield Supplement Account,
the Securities Intermediary does not know of any claim to, or interest in, the
Yield Supplement Account or in any "financial asset" (as defined in
ss.8-102(a)(9) of the UCC) credited thereto. If any Person asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against the Yield Supplement
Account or in any financial asset credited thereto, the Securities Intermediary
will promptly notify the Secured Party and the Issuer thereof.
9. Amendments. No amendment or modification of this Agreement
or waiver of any right hereunder shall be binding on any party hereto unless it
is in writing and is signed by all of the parties hereto.
10. Representations, Warranties and Covenants of the
Securities Intermediary. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
10
(A) The Yield Supplement Account has been established as set
forth in Section 1 above and the Yield Supplement Account will be
maintained in the manner set forth herein until termination of this
Agreement. The Securities Intermediary shall not change the name or
account number of the Yield Supplement Account without the prior
written consent of the Secured Party.
(B) No financial asset is or will be registered in the name of
the Issuer, payable to its order, or specially endorsed to it,
except to the extent such financial asset has been endorsed to the
Securities Intermediary or in blank.
(C) This Agreement is the valid and legally binding obligation
of the Securities Intermediary.
(D) The Securities Intermediary has not entered into, and
until the termination of this Agreement will not enter into, any
agreement with any other person relating to any of the Yield
Supplement Account and/or any financial assets credited thereto
pursuant to which it has agreed to comply with entitlement orders
(as defined in ss.8-102(a) (8) of the UCC) of such person. The
Securities Intermediary has not entered into any other agreement
with the Issuer or the Secured Party purporting to limit or
condition the obligation of the Securities Intermediary to comply
with entitlement orders as set forth in Section 3.
(E) The Securities Intermediary is a "securities intermediary"
(as defined in ss.8-102(a)(14) of the UCC) and is acting in such
capacity with respect to the Yield Supplement Account.
(F) The Securities Intermediary is not a "clearing
corporation" (as defined in ss.8-102(a)(5) of the UCC).
11. Successors. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
12. Notices. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth below.
Issuer: c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Secured Party: Xxxxx Fargo Bank Minnesota, National Association
Sixth Street and Marquette Avenue
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MAC: X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Securities Intermediary: Xxxxx Fargo Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC: N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Any party may change his address for notices in the manner set
forth above.
13. Removal of Securities Intermediary. The Secured Party
acting at the direction of the Issuer shall remove the Securities Intermediary
if it ceases to be a Qualified Institution or a Qualified Trust Institution
unless the Rating Agency Condition is satisfied in connection with the
Securities Intermediary's ceasing to be a Qualified Institution or a Qualified
Trust Institution and appoint a Qualified Institution or a Qualified Trust
Institution to act as successor Securities Intermediary hereunder. No removal of
the Securities Intermediary shall become effective until a successor Securities
Intermediary shall have been appointed by the Secured Party hereunder and shall
have accepted such appointment in writing. Upon the appointment of a successor
Securities Intermediary and its acceptance of such appointment, the removed
Securities Intermediary shall transfer all items of property held by it to such
successor (which items of property shall be transferred to a new Yield
Supplement Account established and maintained by such successor). Following such
appointment all references herein to Securities Intermediary shall be deemed a
reference to such successor.
14. Indenture Trustee as Secured Party. The Secured Party
shall at all times be the same Person that is the Indenture Trustee under the
Indenture. Resignation or removal of the Indenture Trustee under the Indenture
shall also constitute substitution of a successor Secured Party under this
Agreement. Upon the acceptance of any appointment as successor Indenture Trustee
under the Indenture, that successor Indenture Trustee shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Secured Party under this Agreement, and the retiring or
removed Secured Party under this Agreement shall promptly transfer to such
successor Secured Party all items of property held by the Secured Party,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Secured Party
under this Agreement, whereupon such retiring or removed Secured Party shall be
discharged from its duties and obligations under this Agreement.
15. No Petition. The Securities Intermediary, by entering into
this Agreement, hereby covenants and agrees that it 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.
16. Limitation of Liability. (a) Notwithstanding anything
contained herein to the contrary, this instrument has been signed 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
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Wilmington Trust Company in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, 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 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) No recourse under any obligation, covenant or agreement of
the Issuer contained in this Agreement shall be had against any agent of the
Issuer (including the Administrator) as such by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is
solely an obligation of the Issuer as a Delaware statutory trust, and that no
personal liability whatsoever shall attach to or be incurred by any agent of the
Issuer (including the Administrator), as such, under or by reason of any of the
obligations, covenants or agreements of the Issuer contained in this Agreement,
or implied therefrom, and that any and all personal liability for breaches by
the Issuer of any such obligations, covenants or agreements, either at common
law or at equity, or by statute or constitution, of every such agent is hereby
expressly waived as a condition of and in consideration for the execution of
this Agreement.
17. Termination. The rights and powers granted herein to the
Secured Party have been granted in order to perfect its security interests in
the Yield Supplement Account, are powers coupled with an interest and will
neither be affected by the bankruptcy of the Issuer nor by the lapse of time.
The obligations of the Securities Intermediary hereunder shall continue in
effect until the security interests of the Secured Party in the Yield Supplement
Account has been terminated pursuant to the terms of the Indenture, all
distributions in respect of the Certificate Balance and interest due to the
Certificateholders have been paid in full and the Secured Party has notified the
Securities Intermediary of the occurrence of such events in writing.
18. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and delivered as of the day and year first above written.
CHASE MANHATTAN AUTO OWNER TRUST 2003-B
By: WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely as Owner Trustee
By:
--------------------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Secured Party
By:
--------------------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Securities
Intermediary
By:
--------------------------------------------------
Name:
Title:
