EXHIBIT 4.4(1)
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CHASE MANHATTAN AUTO OWNER TRUST 1998-A
Class A-1 5.549% Asset Backed Notes
Class A-2 5.679% Asset Backed Notes
Class A-3 5.700% Asset Backed Notes
Class A-4 5.800% Asset Backed Notes
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ADMINISTRATION AGREEMENT
Dated as of February 1, 1998
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The Chase Manhattan Bank,
Administrator
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TABLE OF CONTENTS
Page
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SECTION 1. Duties of Administrator...................................... 2
SECTION 2. Records...................................................... 7
SECTION 3. Compensation................................................. 7
SECTION 4. Additional Information To Be Furnished to Issuer............. 7
SECTION 5. Independence of Administrator................................ 7
SECTION 6. No Joint Venture............................................. 7
SECTION 7. Other Activities of Administrator............................ 8
SECTION 8. Term of Agreement; Resignation and Removal of Administrator.. 8
SECTION 9. Action upon Termination, Resignation or Removal.............. 9
SECTION 10. Notices...................................................... 10
SECTION 11. Amendments................................................... 11
SECTION 12. Successors and Assigns....................................... 11
SECTION 13. GOVERNING LAW................................................ 12
SECTION 14. Headings..................................................... 12
SECTION 15. Counterparts................................................. 12
SECTION 16. Severability................................................. 12
SECTION 17. Not Applicable to The Chase Manhattan Bank in Other
Capacities.................................................. 12
SECTION 18. Limitation of Liability of Owner Trustee, Indenture Trustee
and Administrator............................................ 12
SECTION 19. Third-Party Beneficiary...................................... 13
SECTION 20. Nonpetition Covenants........................................ 13
SECTION 21. Liability of Administrator................................... 13
EXHIBIT A - Form of Power of Attorney
ADMINISTRATION AGREEMENT dated as of February 1, 1998, among
CHASE MANHATTAN AUTO OWNER TRUST 1998-A, a Delaware business trust (the
"Issuer"), THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrator (the "Administrator"), and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H :
WHEREAS the Issuer is issuing the Class A-1 5.549% Asset
Backed Notes (the "Class A-1 Notes"), the Class A-2 5.679% Asset Backed Notes
(the "Class A-2 Notes"), the Class A-3 5.700% Asset Backed Notes (the "Class A-3
Notes") and the Class A-4 5.800% Asset Backed Notes (the "Class A-4 Notes") and,
together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes,
the "Notes") pursuant to the Indenture dated as of February 1, 1998 (as amended,
modified or supplemented from time to time in accordance with the provisions
thereof, the "Indenture"), between the Issuer and the Indenture Trustee and the
6.000% Asset Backed Certificates (the "Certificates") pursuant to the Trust
Agreement dated as of February 1, 1998 (as amended, modified or supplemented
from time to time in accordance with the provisions thereof, the "Trust
Agreement") between Chase USA (defined below), as Depositor, and Wilmington
Trust Company, as owner trustee (the "Owner Trustee").
WHEREAS the Issuer has entered into certain agreements in
connection with the issuance of the Notes and the Certificates, including (i) a
Sale and Servicing Agreement dated as of February 1, 1998 (the "Sale and
Servicing Agreement") (capitalized terms used herein and not defined herein
shall have the meanings assigned such terms in the Sale and Servicing Agreement)
between the Issuer and Chase Manhattan Bank USA, National Association ("Chase
USA"), as Servicer and Seller, (ii) a Depository Agreement dated February __,
1998 (the "Note Depository Agreement") among the Issuer, the Indenture Trustee,
The Chase Manhattan Bank, as Agent (the "Agent") and The Depository Trust
Company, and (iii) a Depository Agreement dated February __, 1998 among the
Issuer, the Owner Trustee, the Agent and The Depository Trust Company (the
"Certificate Depository Agreement," and together with the Note Depository
Agreement, the "Depository Agreements"), (iv) the Trust Agreement, and (v) the
Indenture (the Sale and Servicing Agreement, the Trust Agreement, the Depository
Agreements and the Indenture being hereinafter referred to collectively as the
"Related Agreements");
WHEREAS pursuant to the Related Agreements, the Issuer and the
Owner Trustee are required to perform certain duties in connection with (a) the
Notes and the collateral pledged therefor pursuant to the Indenture (the
"Collateral") and (b) the Certificates;
WHEREAS the Issuer desires to have the Administrator perform
certain of the duties of the Issuer and the Owner Trustee referred to in the
preceding clause, and to provide such additional services consistent with the
terms of this Agreement and the Related Agreements as the Issuer may from time
to time request;
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WHEREAS the Administrator has the capacity to provide the
services required hereby and is willing to perform such services for the Issuer
and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Duties of Administrator. (a) Duties with Respect to
the Related Agreements. (i) The Administrator agrees to perform all its duties
as Administrator and the duties of the Issuer and the Owner Trustee under the
Depository Agreements. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer and the Owner Trustee under the
Related Agreements.
The Administrator shall monitor the performance of the Issuer
and shall advise the Owner Trustee when action is necessary to comply with the
Issuer's or the Owner Trustee's duties under the Indenture and the Depository
Agreements. The Administrator shall prepare for execution by the Issuer or the
Owner Trustee or shall cause the preparation by other appropriate persons of all
such documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Indenture and the Depository Agreements. In furtherance of the
foregoing, the Administrator shall take all appropriate action that it is the
duty of the Issuer or the Owner Trustee to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture (references are to sections
of the Indenture):
(A) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes, if any, and
delivery of the same to the Indenture Trustee (Section 2.2);
(B) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note Registrar
and the location, or change in location, of the Note Register and the
office or offices where Notes may be surrendered for registration of
transfer or exchange (Section 2.4);
(C) the notification of Noteholders of the final principal
payment on their Notes (Section 2.7(b));
(D) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.9);
(E) the preparation of Definitive Notes and arranging the
delivery thereof (Section 2.12);
(F) the maintenance of an office or agency in the City of New
York for registration of transfer or exchange of Notes (Section 3.2);
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(G) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.3);
(H) the direction to Paying Agents to pay to the Indenture
Trustee all sums held in trust by such Paying Agents (Section 3.3);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the Collateral and each
other instrument and agreement included in the Trust Estate (Section
3.4);
(J) the preparation of all supplements, amendments, financing
statements, continuation statements, if any, instruments of further
assurance and other instruments, in accordance with Section 3.5 of the
Indenture, necessary to protect the Trust Estate (Section 3.5);
(K) the obtaining of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel, in accordance with
Section 3.6 of the Indenture, as to the Trust Estate, and the annual
delivery of the Officers' Certificate and certain other statements, in
accordance with Section 3.9 of the Indenture, as to compliance with the
Indenture (Sections 3.6 and 3.9);
(L) the identification to the Indenture Trustee in an
Officers' Certificate of a Person with whom the Issuer has contracted
to perform its duties under the Indenture (Section 3.7(b));
(M) the notification of the Indenture Trustee and the Rating
Agencies of an Event of Servicing Termination pursuant to the Sale and
Servicing Agreement and, if such Event of Servicing Termination arises
from the failure of the Servicer to perform any of its duties under the
Sale and Servicing Agreement, the taking of all reasonable steps
available to remedy such failure (Section 3.7(d));
(N) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligation under the
Indenture (Section 3.11(b));
(O) the delivery of notice to the Indenture Trustee of each
Event of Default, Event of Servicing Termination and each default by
the Seller under the Sale and Servicing Agreement (Section 3.18);
(P) the taking of such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of the
Indenture or to compel or secure the performance and observance by the
Seller and the Servicer of their obligations under the Sale and
Servicing Agreement (Sections 3.19 and 5.16);
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(Q) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officers' Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.1);
(R) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Trust Estate in any manner
permitted by law if an Event of Default shall have occurred and be
continuing (Section 5.4);
(S) provide the Indenture Trustee with the information
necessary to deliver to each Noteholder such information as may be
reasonably required to enable such Holder to prepare its United States
federal and state and local income or franchise tax returns (Section
6.6);
(T) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(U) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of the Indenture Trustee or any co-trustee or
separate trustee (Sections 6.8 and 6.10);
(V) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.1);
(W) the preparation and, after execution by the Issuer, the
filing with the Commission and any applicable state agencies and the
Indenture Trustee of documents required to be filed on a periodic basis
with, and summaries thereof as may be required by rules and regulations
prescribed by, the Commission and any applicable state agencies and the
transmission of such summaries, as necessary, to the Noteholders
(Section 7.3);
(X) the obtaining of an Officers' Certificate, Opinion of
Counsel and Independent Certificates, if necessary, for the release of
the Trust Estate as defined in the Indenture (Sections 8.4 and 8.5);
(Y) the preparation of Issuer Orders and Issuer Requests and
the obtaining of Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Noteholders of notices
with respect to such supplemental indentures (Sections 9.1 and 9.2);
(Z) the execution of new Notes conforming to any supplemental
indenture (Section 9.5);
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(aa) provide the Indenture Trustee with the form of notice
necessary to deliver the notification of Noteholders of redemption of
the Notes (Section 10.2);
(bb) the preparation of all Officers' Certificates, Opinions
of Counsel and Independent Certificates with respect to any requests by
the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a));
(cc) the preparation and delivery of Officers' Certificates
and the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.1(b));
(dd) the preparation and delivery to the Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.6); and
(ee) the recording of the Indenture, if applicable (Section
11.15).
(b) Additional Duties. (i) In addition to the duties of the
Administrator set forth above, the Administrator shall perform such calculations
and shall prepare for execution by the Issuer or the Owner Trustee or shall
cause the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Related Agreements, and at the request of the Owner Trustee shall take all
appropriate action that it is the duty of the Issuer or the Owner Trustee to
take pursuant to the Related Agreements. Subject to Section 5 of this Agreement,
and in accordance with the directions of the Owner Trustee, the Administrator
shall administer, perform or supervise the performance of such other activities
in connection with the Trust Estate (including the Related Agreements) as are
not covered by any of the foregoing provisions and as are expressly requested by
the Owner Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax is
imposed on the Issuer's payments (or allocations of income) to a
"Certificateholder" as contemplated in Section 5.2(c) of the Trust Agreement.
Any such notice shall specify the amount of any withholding tax required to be
withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee and the Issuer set forth in
Sections 2.11, 2.12, 2.13 and 5.5(a), (b) and (c) and 5.7 of the Trust Agreement
with respect to, among other things, accounting and reports to
Certificateholders and the maintenance of Capital Accounts; provided, however,
that the Owner Trustee shall retain responsibility for the distribution of the
Schedule K-1s necessary to enable each Certificateholder to prepare its federal
and state income tax returns.
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(iv) The Administrator may satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense of the
Administrator, a firm of independent public accountants (the "Accountants")
acceptable to the Owner Trustee which shall perform the obligations of the
Administrator thereunder. In connection with paragraph (ii) above, the
Accountants will provide prior to March 16, 1998 a letter in form and substance
satisfactory to the Owner Trustee as to whether any tax withholding is then
required and, if required, the procedures to be followed with respect thereto to
comply with the requirements of the Code. The Accountants shall be required to
update the letter in each instance that any additional tax withholding is
subsequently required or any previously required tax withholding shall no longer
be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Sections 10.2 and 10.3 of the Trust Agreement
required to be performed in connection with the resignation or removal of the
Owner Trustee, the duties of the Administrator specified in Section 10.5 of the
Trust Agreement required to be performed in connection with the appointment and
payment of co-Trustees, and any other duties expressly required to be performed
by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
(vii) It is the intention of the parties hereto that the
Administrator shall, and the Administrator hereby agrees to, execute on behalf
of the Issuer or the Owner Trustee all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to the Basic Documents.
In furtherance thereof, the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator, and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers of
attorney substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the
purpose of executing on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and opinions.
(c) Non-Ministerial Matters. (i) With respect to matters that
in the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time before
the taking of such action, the Administrator shall have notified the Owner
Trustee of the proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include, without limitation:
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(A) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Receivables);
(B) the amendment, change or modification of the Related
Agreements;
(C) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or successor
Servicers, or the consent to the assignment by the Note Registrar, the
Paying Agent or the Indenture Trustee of its obligations under the
Indenture; and
(D) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (x) make
any payments to the Noteholders or Certificateholders under the Related
Agreements, (y) sell the Trust Estate pursuant to Section 5.4 of the Indenture
or (z) take any action that the Issuer directs the Administrator not to take on
its behalf.
SECTION 2. Records. The Administrator shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall be accessible for inspection
by the Issuer, the Owner Trustee, the Indenture Trustee and the Seller at any
time during normal business hours.
SECTION 3. Compensation. As compensation for the performance
of the Administrator's obligations under this Agreement, the Administrator shall
be entitled to $1,000 per month which shall be payable in accordance with
Section 5.5 of the Sale and Servicing Agreement.
SECTION 4. Additional Information To Be Furnished to Issuer.
The Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request,
including notification of Noteholders pursuant to Section 1(a)(i) hereof.
SECTION 5. Independence of Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer or the Owner
Trustee, as the case may be, the Administrator shall have no authority to act
for or represent the Issuer or the Owner Trustee in any way and shall not
otherwise be deemed an agent of the Issuer or the Owner Trustee.
SECTION 6. No Joint Venture. Nothing contained in this
Agreement shall (i) constitute the Administrator and either of the Issuer or the
Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate
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entity, (ii) be construed to impose any liability as such on any of them or
(iii) be deemed to confer on any of them any express, implied or apparent
authority to incur any obligation or liability on behalf of the others.
SECTION 7. Other Activities of Administrator. (a) Nothing
herein shall prevent the Administrator or its affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
(b) The Administrator and its affiliates may generally engage
in any kind of business with any person party to a Related Agreement, any of its
affiliates and any person who may do business with or own securities of any such
person or any of its affiliates, without any duty to account therefor to the
Issuer, the Owner Trustee or the Indenture Trustee.
SECTION 8. Term of Agreement; Resignation and Removal of
Administrator. (a) This Agreement shall continue in force until the dissolution
of the Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(e) and (f), the Administrator may
resign its duties hereunder by providing the Issuer and the Owner Trustee with
at least 60 days' prior written notice.
(c) Subject to Sections 8(e) and (f), the Issuer may remove
the Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Sections 8(e) and (f), at the sole option of
the Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and, after notice
of such default, shall not cure such default within ten days (or, if
such default cannot be cured in such time, shall not give within ten
days such assurance of cure as shall be reasonably satisfactory to the
Issuer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or order
shall not have been vacated within 60 days, in respect of the
Administrator in any involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official for the Administrator or any substantial part of its
property or order the winding-up or liquidation of its affairs; or
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(iii) the Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order for
relief in an involuntary case under any such law, or shall consent to
the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Administrator or
any substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified
in clause (ii) or (iii) of this Section shall occur, it shall give written
notice thereof to the Issuer, the Owner Trustee and the Indenture Trustee within
seven days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after receipt of written confirmation from each Rating Agency
that the proposed appointment will not result in the qualification, downgrading
or withdrawal of any rating assigned to the Notes and Certificates by such
Rating Agency.
(g) A successor Administrator shall execute, acknowledge and
deliver a written acceptance of its appointment hereunder to the resigning
Administrator and to the Issuer. Thereupon the resignation or removal of the
resigning Administrator shall become effective, and the successor Administrator
shall have all the rights, powers and duties of the Administrator under this
Indenture. The successor Administrator shall mail a notice of its succession to
the Noteholders and the Certificateholders. The resigning Administrator shall
promptly transfer or cause to be transferred all property and any related
agreements, documents and statements held by it as Administrator to the
successor Administrator and the resigning Administrator shall execute and
deliver such instruments and do other things as may reasonably be required for
fully and certainly vesting in the successor Administrator all rights, powers,
duties and obligations hereunder.
(h) In no event shall a resigning Administrator be liable for
the acts or omissions of any successor Administrator hereunder.
(i) In the exercise or administration of its duties hereunder
and under the Related Documents, the Administrator may act directly or through
its agents or attorneys pursuant to agreements entered into with any of them,
and the Administrator shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Administrator with due care.
SECTION 9. Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 8(a) or the
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resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon termination
pursuant to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or (c), respectively, the Administrator shall cooperate with the Issuer and
take all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
SECTION 10. Notices. Any notice, report or other communication
given hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
with a copy to:
Chase Automotive Finance Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Financial Controller
(b) if to the Administrator, to
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-2697
Attention: Structured Finance/Chase Auto
(c) if to the Indenture Trustee, to
Norwest Bank Minnesota, National Association
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
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(d) if to the Seller, to
Chase Manhattan Automotive Finance Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention Financial Controller
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above, except that notices to the
Indenture Trustee are effective only upon receipt.
SECTION 11. Amendments. This Agreement may be amended from
time to time by a written amendment duly executed and delivered by the Issuer,
the Administrator and the Indenture Trustee, with the written consent of the
Owner Trustee and without the consent of the Noteholders and the
Certificateholders, 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 Certificateholders;
provided that such amendment will not, as evidenced by an Opinion of Counsel,
materially and adversely affect the interest of any Noteholder or
Certificateholder. This Agreement may also be amended by the Issuer, the
Administrator and the Indenture Trustee with the written consent of the Owner
Trustee and the holders of Notes evidencing a majority in the Outstanding Amount
of the Notes and the holders of Certificates evidencing a majority of the
Certificate Balance 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 Noteholders or the Certificateholders;
provided, however, that no such amendment may (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that are required to be made for the
benefit of the Noteholders or Certificateholders or (ii) reduce the aforesaid
percentage of the holders of Notes and Certificates which are required to
consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates. Notwithstanding the foregoing, the
Administrator may not amend this Agreement without the permission of the Seller,
which permission shall not be unreasonably withheld.
SECTION 12. Successors and Assigns. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Issuer and the Owner Trustee and subject to receipt by the
Owner Trustee of written confirmation from each Rating Agency that such
assignment will not result in the qualification, downgrading or withdrawal of
any rating assigned to the Notes and Certificates by such Rating Agency in
respect thereof. An assignment with such consent and satisfaction, if accepted
by the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Issuer or the
Owner Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator, provided that
such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement in which such
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corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Headings. The section headings hereof have been
inserted for convenience of reference only and shall not be construed to affect
the meaning, construction or effect of this Agreement.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
SECTION 16. Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 17. Not Applicable to The Chase Manhattan Bank in
Other Capacities. Nothing in this Agreement shall affect any obligation The
Chase Manhattan Bank may have in any other capacity.
SECTION 18. Limitation of Liability of Owner Trustee,
Indenture Trustee and Administrator. (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) Notwithstanding anything contained herein to the contrary,
this Agreement has been signed by Norwest Bank Minnesota, National Association,
not in its individual capacity but solely as Indenture Trustee, and in no event
shall Norwest Bank Minnesota, National Association 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.
13
(c) 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 business trust, and that no
personal liability whatever 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.
SECTION 19. Third-Party Beneficiary. Each of the Seller (to
the extent provided in Section 11) and the Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
SECTION 20. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Administrator, the Issuer and the Indenture
Trustee shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court of
government authority for the purpose of commencing or sustaining a case against
the Issuer under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
SECTION 21. Liability of Administrator. Notwithstanding any
provision of this Agreement, the Administrator shall not have any obligations
under this Agreement other than those specifically set forth herein, and no
implied obligations of the Administrator shall be read into this Agreement.
Neither the Administrator nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken in good
faith by it or them under or in connection with this Agreement, except for its
or their own gross negligence or willful misconduct and in no event shall the
Administrator be liable under or in connection with this Agreement for indirect,
special, or consequential losses or damages of any kind, including lost profits,
even if advised of the possibility thereof and regardless of the form of action
by which such losses or damages may be claimed. Without limiting the foregoing,
the Administrator may (a) consult with legal counsel (including counsel for the
Issuer), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts and (b)
shall incur no liability under or in respect of this Agreement by acting upon
any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by facsimile) believed by it to be genuine
and signed or sent by the proper party or parties.
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
1998-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee,
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------------------
Title: Assistant Vice President
NORWEST BANK, MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee,
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------------
Title: Assistant Vice President
THE CHASE MANHATTAN BANK,
as Administrator
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Title: Second Vice President
15
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee ("Owner Trustee") for Chase Manhattan Auto Owner Trust 1998-A ("Trust"),
does hereby make, constitute and appoint THE CHASE MANHATTAN BANK as
Administrator under the Administration Agreement (as defined below), and its
agents and attorneys, as Attorneys-in- Fact to execute on behalf of the Owner
Trustee or the Trust all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Owner Trustee or the
Trust to prepare, file or deliver pursuant to the Related Documents (as defined
in the Administration Agreement), including, without limitation, to appear for
and represent the Owner Trustee and the Trust in connection with the
preparation, filing and audit of federal, state and local tax returns pertaining
to the Trust, and with full power to perform any and all acts associated with
such returns and audits that the Owner Trustee could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restriction on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements. For
the purpose of this Power of Attorney, the term "Administration Agreement" means
the Administration Agreement dated as of February 1, 1998 among the Trust, The
Chase Manhattan Bank, as Administrator, and Norwest Bank Minnesota, National
Association, as Indenture Trustee, as such may be amended from time to time.
All powers of attorney for this purpose heretofore filed or executed
by the Owner Trustee are hereby revoked.
EXECUTED this day of , 1998.
---- --------
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:
-----------------------------------------
Name:
Title:
