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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 11, 1997
CHASE MANHATTAN BANK USA, N.A.
(Exact Name of registrant specified in its charter)
United States 333-7575 22-2382028
(State or other Jurisdiction (Commission File Number) (I.R.S. employer
of Incorporation) Identification No.)
802 Delaware Avenue
Wilmington, Delaware 19801
(Address of principal executive offices)
Registrant's telephone number: (302) 575-5033
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Item 5. Other Events
On June 11, 1997, the Note Underwriting Agreement, dated March 12,
1997, between Chase Manhattan Bank USA, N.A., as Seller and Servicer, and Chase
Securities Inc., as Representative of the several Underwriters parties thereto,
was executed and entered into by the parties thereto.
On June 11, 1997, the Certificate Underwriting Agreement,
dated March 12, 1997, between Chase Manhattan Bank USA, N.A., as Seller and
Servicer, and Chase Securities Inc., as Underwriter, was executed and entered
into by the parties thereto.
On June 18, 1997, the Sale and Servicing Agreement, dated as
of June 1, 1997, between Chase Manhattan Auto Owner Trust 1997-B, as Issuer, and
Chase Manhattan Bank USA, N.A., as Seller and Servicer, was executed and entered
into by the parties thereto.
On June 18, 1997, the Indenture, dated as of June 1, 1997,
between Chase Manhattan Auto Owner Trust 1997-B, as Issuer, and Norwest Bank
Minnesota, National Association, as Indenture Trustee, was executed and entered
into by the parties thereto.
On June 18, 1997, the Trust Agreement, dated as of June 1,
1997, between Chase Manhattan Bank USA, N.A., as Depositor and Wilmington Trust
Company, as Owner Trustee, was executed and entered into by the parties thereto.
On June 18, 1997, the Administration Agreement, dated as of
June 1, 1997, among Chase Manhattan Auto Owner Trust 1997-B, as Issuer, Norwest
Bank Minnesota, National Association, as Indenture Trustee, and The Chase
Manhattan Bank, as Administrator, was executed and entered into by the parties
thereto.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits
Exhibits
1.1(B)(4) Underwriting Agreement (Notes), dated June 11, 1997.
1.1(C)(4) Underwriting Agreement (Certificates), dated June 11,
1997.
4.1(B)(4) Sale and Servicing Agreement (Notes and Certificates),
dated as of June 1, 1997.
4.2(4) Indenture (Notes and Certificates), dated as of June
1, 1997.
4.3(C)(4) Amended and Restated Trust Agreement (Notes and
Certificates), dated as of June 1, 1997.
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4.4(4) Administration Agreement (Notes and Certificates),
dated as of June 1, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CHASE MANHATTAN BANK USA, N.A.
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(Registrant)
By: /s/ Keith Schuck
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Name: Keith Schuck
Title: Controller
Date: June 24, 1997
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INDEX TO EXHIBITS
Exhibit Number Exhibit Sequentially
- -------------- ------- Numbered Pages
--------------
1.1(B)(4) Underwriting Agreement (Notes), dated
June 11, 1997.
1.1(C)(4) Underwriting Agreement (Certificates),
dated June 11, 1997.
4.1(B)(4) Sale and Servicing Agreement (Notes and
Certificates), dated as of June 1, 1997.
4.2(4) Indenture (Notes and Certificates),
dated as of June 1, 1997.
4.3(C)(4) Amended and Restated Trust Agreement
(Notes and Certificates), dated as of
June 1, 1997.
4.4(4) Administration Agreement (Notes and
Certificates), dated as of June 1, 1997.
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EXECUTION COPY
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
ASSET BACKED NOTES
CHASE MANHATTAN BANK USA, N.A.
Seller and Servicer
NOTE UNDERWRITING AGREEMENT
June 11, 1997
Chase Securities Inc.,
As Representative of the
Several Underwriters,
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, N.A., a national
banking association (the "Bank"), proposes to form Chase Manhattan Auto Owner
Trust 1997-B (the "Trust") to sell $200,000,000 aggregate principal amount of
Class A-1 5.744% Money Market Asset Backed Notes (the "Class A-1 Notes"),
$294,000,000 aggregate principal amount of Class A-2 6.100% Asset Backed Notes
(the "Class A-2 Notes"), $227,000,000 aggregate principal amount of Class A-3
6.350% Asset Backed Notes (the "Class A-3 Notes"), $133,000,000 aggregate
principal amount of Class A-4 6.500% Asset Backed Notes (the "Class A-4 Notes")
and $70,000,000 aggregate principal amount of Class A-5 6.600% Asset Backed
Notes (the "Class A-5 Notes" and, together with the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the "Notes").
The assets of the Trust will include, among other things, a
pool of simple interest retail installment sales contracts and purchase money
notes and other notes (the "Receivables") secured by new and used automobiles
(the "Financed Vehicles") and certain monies received thereunder on and after
the Cutoff Date (as hereinafter defined), such Receivables to be transferred to
the Trust and serviced by the Bank, as Servicer, or by a successor Servicer. The
Original Pool Balance of the Receivables as of the close of business on June 1,
1997 (the "Cut-off Date") was equal to $953,148,275.79. The Notes will be issued
pursuant to the Indenture to be dated as of June 1, 1997 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and Norwest
Bank Minnesota, National Association, as indenture trustee (the "Indenture
Trustee").
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Simultaneously with the issuance and sale of the Notes as
contemplated herein, the Trust will issue $29,148,275.79 aggregate principal
amount of 6.750% Asset Backed Certificates (the "Certificates") pursuant to the
Amended and Restated Trust Agreement to be dated as of June 1, 1997 (as amended
and supplemented from time to time, the "Trust Agreement"), between the Bank and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"), each
representing a fractional undivided ownership interest in the Trust, which will
be sold pursuant to an underwriting agreement dated the date hereof (the
"Certificate Underwriting Agreement" and, together with this Agreement, the
"Underwriting Agreements") between the Bank and Chase Securities Inc. The Notes
and the Certificates are sometimes referred to collectively herein as the
"Securities".
Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Sale and Servicing Agreement to
be dated as of June 1, 1997 (as amended and supplemented from time to time, the
"Sale and Servicing Agreement"), between the Trust and the Bank, as Seller and
Servicer.
This is to confirm the agreement concerning the purchase of
the Notes from the Bank by the several underwriters named in Schedule I hereto
(the "Underwriters"), for whom Chase Securities Inc. is acting as representative
(the "Representative").
2. Representations and Warranties of the Bank. The Bank
represents and warrants to, and agrees with, the Underwriters, that:
(a) A registration statement on Form S-3 (No. 333- 7575) has
been filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations under the Act (the "Rules and
Regulations"). Such registration statement, as amended on the date that such
registration statement or the most recent post-effective amendment thereto
became effective under the Act, including the exhibits thereto, is hereinafter
referred to as the "Registration Statement." The Registration Statement has
become effective, and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by the Commission.
The conditions to the use of a registration statement on Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, and the conditions of Rule
415 of the Rules and Regulations, have been satisfied with respect to the
Registration Statement. The Bank proposes to file with the Commission pursuant
to Rule 424(b) of the Rules and Regulations a prospectus supplement to the Base
Prospectus (as defined herein) relating to the sale of the Securities (the
"Prospectus
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Supplement"). The base prospectus filed as part of the Registration
Statement, in the form it appears in the Registration Statement, or in the form
most recently revised and filed with the Commission pursuant to Rule 424(b), is
hereinafter referred to as the "Base Prospectus." The Base Prospectus as
supplemented by the Prospectus Supplement is hereinafter referred to as the
"Prospectus."
(b) Except to the extent that the Representative shall have
agreed to a modification, the Prospectus shall be in all substantive respects in
the form furnished to the Representative prior to the execution of this
Agreement or, to the extent not completed at such time, shall contain only such
material changes as the Bank has advised the Representative, prior to such time,
will be included or made therein.
(c) The Registration Statement, at the time it became
effective, and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of the Act
and the Trust Indenture Act of 1939 and the Rules and Regulations and did not
include any untrue statement of a material fact and, in the case of the
Registration Statement, did not omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and,
in the case of the Prospectus, did not omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; on the Closing Date (as defined herein),
the Registration Statement and the Prospectus, as amended or supplemented as of
the Closing Date, will comply in all material respects with the applicable
requirements of the Act and the Rules and Regulations, and neither the
Prospectus nor any amendment or supplement thereto will include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Bank makes no
representation and warranty with respect to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon, or in
conformity with, information furnished in writing to the Bank by or on behalf of
any Underwriter through the Representative specifically for use in connection
with the preparation of the Registration Statement or the Prospectus.
(d) The Bank is a national banking association organized under
the laws of the United States, with full power and authority to own its
properties and conduct its business as described in the Prospectus, and had at
all relevant times and has power, authority and legal right to acquire, own,
sell and service the Receivables.
(e) When the Notes have been duly executed and delivered by
the Owner Trustee and, when authenticated by the Indenture Trustee in accordance
with the Indenture and delivered
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upon the order of the Bank to the Underwriters pursuant to this Agreement and
the Sale and Servicing Agreement, the Notes will be duly issued and will
constitute legal, valid and binding obligations of the Trust enforceable against
the Trust in accordance with their terms, except to the extent that the
enforceability thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights as such laws would apply in the event of the
insolvency, liquidation or reorganization or other similar occurrence with
respect to the Bank or the Trust or in the event of any moratorium or similar
occurrence affecting the Bank or the Trust and to general principles of equity.
(f) The direction by the Bank to the Owner Trustee to execute
and authenticate the Certificates has been duly authorized by the Bank and, when
the Certificates have been duly executed, authenticated and delivered by the
Owner Trustee in accordance with the Trust Agreement and delivered upon the
order of the Bank to Chase Securities Inc. pursuant to the Certificate
Underwriting Agreement and the Sale and Servicing Agreement, the Certificates
will be duly issued and entitled to the benefits and security afforded by the
Trust Agreement.
(g) The execution, delivery and performance by the Bank of
this Agreement, the Certificate Underwriting Agreement, and the Basic Documents
to which the Bank is a party, and the consummation by the Bank of the
transactions provided for herein and therein have been, or will have been, duly
authorized by the Bank by all necessary action on the part of the Bank; and
neither the execution and delivery by the Bank of such instruments, nor the
performance by the Bank of the transactions herein or therein contemplated, nor
the compliance by the Bank with the provisions hereof or thereof, will (i)
conflict with or result in a breach or violation of any of the material terms
and provisions of, or constitute a material default under, any of the provisions
of the articles of association or by-laws of the Bank, or (ii) conflict with any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Bank or its properties, or (iii) conflict with any of the
material provisions of any material indenture, mortgage, contract or other
instrument to which the Bank is a party or by which it is bound, or (iv) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract or
other instruments, except, in the case of clauses (ii) and (iii), for any such
breaches or conflicts as would not individually or in the aggregate have a
material adverse effect on the transactions contemplated hereby or on the
ability of the Bank to consummate such transactions.
(h) When executed and delivered by the parties thereto, each
of the Sale and Servicing Agreement and the Trust Agreement will constitute a
legal, valid and binding obligation of the Bank, enforceable against the Bank in
accordance with its
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terms, except to the extent that the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights as such
laws would apply in the event of the insolvency, liquidation or reorganization
or other similar occurrence with respect to the Bank or in the event of any
moratorium or similar occurrence affecting the Bank and to general principles of
equity.
(i) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or "blue sky" laws of various jurisdictions), if so required in
connection with the execution, delivery and performance of this Agreement, the
Certificate Underwriting Agreement and the Basic Documents to which the Bank is
a party, have been or will be taken or obtained on or prior to the Closing Date.
(j) As of the Closing Date, the representations and warranties
of the Bank, as Seller and Servicer, in the Trust Agreement will be true and
correct.
(k) This Agreement and the Certificate Underwriting
Agreement have been duly executed and delivered by the Bank.
3. Purchase, Sale, Payment and Delivery of the Notes. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Bank agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Bank, (a) at a purchase price of 99.900000% of the principal
amount thereof, the principal amount of the Class A-1 Notes set forth opposite
the name of such Underwriter in Schedule I hereto, (b) at a purchase price of
99.809375% of the principal amount thereof, the principal amount of the Class
A-2 Notes set forth opposite the name of such Underwriter in Schedule I hereto,
(c) at a purchase price of 99.753125% of the principal amount thereof, the
principal amount of the Class A-3 Notes set forth opposite the name of such
Underwriter in Schedule I hereto, (d) at a purchase price of 99.750000% of the
principal amount thereof, the principal amount of the Class A-4 Notes set forth
opposite the name of such Underwriter in Schedule I hereto and (e) at a purchase
price of 99.637500% of the principal amount thereof, the principal amount of the
Class A-5 Notes set forth opposite the name of such underwriter in Schedule I
hereto plus, in each case, accrued interest at the applicable Interest Rate from
June 18, 1997 to but excluding the Closing Date.
The Bank will deliver the Notes to the Representative for the
respective accounts of the Underwriters against payment of the purchase price in
immediately available funds drawn to the order of the Bank at the offices of
Orrick, Herrington & Sutcliffe LLP in New York, New York at 10:00 a.m., New York
City
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time, on June 18, 1997, or at such other time not later than seven full business
days thereafter as the Representative and the Bank determine, such time being
herein referred to as the "Closing Date." The Notes of each class to be so
delivered will be initially represented by one or more definitive Notes
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC") and will be made available for inspection by the Representative
at the office where delivery and payment for such Notes is to take place no
later than 1:00 p.m., New York City time, on the Business Day prior to the
Closing Date.
4. Offering by the Underwriters. It is understood that the
Underwriters propose to offer the Notes for sale to the public (which may
include selected brokers and dealers) as set forth in the Prospectus. Each
Underwriter has represented and agreed that (a) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by it
in connection with the issue of the Notes to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements)(Exemptions) Order 1996 or who is a person to whom the document
may otherwise lawfully be issued or passed on, (b) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom and (c) if the Underwriter is an authorized person
under Chapter III of Part I of the Financial Services Act 1986, it has only
promoted and will only promote (as that term is defined in Regulation 1.02 of
the Financial Services Act 1986 (Promotion of Unregulated Schemes) Regulations
1991) to any person in the United Kingdom the scheme described herein if that
person is of a kind described either in Section 76(2) of the Financial Services
Act 1986 or in Regulation 1.04 of the Financial Services Act 1986 (Promotion
Unregulated Schemes) Regulations 1991.
5. Covenants of the Bank. The Bank covenants and agrees with
the Underwriters that:
(a) The Bank will file the Prospectus with the Commission
pursuant to Rule 424(b) of the Rules and Regulations within the time prescribed
therein and will provide evidence satisfactory to the Representative of such
timely filing. During any period that a prospectus relating to the Notes is
required to be delivered to purchasers of the Notes by the Underwriters and
dealers participating in the initial offering and sale of the Notes on the
Closing Date under the Act (without regard to any market making prospectus
required to be delivered by any Underwriter under the Act) (a "prospectus
delivery period"), the Bank will not file any amendments to the Registration
Statement, or any amendments or supplements to the Prospectus, unless it shall
first have delivered copies of such amendments or supplements to the
Representative, and if the Representative shall have reasonably objected thereto
promptly after receipt
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thereof; the Bank will promptly advise the Representative or its counsel (i)
when notice is received from the Commission that any post-effective amendment to
the Registration Statement has become or will become effective, (ii) of any
request by the Commission for any amendment or supplement to the Registration
Statement or the Prospectus or for any additional information and (iii) of any
order or communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Notes or of any proceedings or examinations
that may lead to such an order or communication, whether by or of the Commission
or any authority administering any state securities or "blue sky" law, as soon
as the Bank is advised thereof, and will use its reasonable efforts to prevent
the issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) If, at any time during the prospectus delivery period, any
event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus in order to comply with the Act or
the Rules and Regulations, the Bank promptly will prepare and file with the
Commission (subject to the Representative's prior review pursuant to paragraph
(a) of this Section 5), an amendment or supplement which will correct such
statement or omission or an amendment or supplement which will effect such
compliance.
(c) The Bank will furnish to the Representative copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Notes, the Prospectus, and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Representative may
reasonably request.
(d) The Bank will cooperate with the Representative in
arranging for the qualification of the Notes for sale and the determination of
their eligibility for investment under the laws of such jurisdictions, or as
necessary to qualify for the Euroclear System or Cedel Bank, societe anonyme, as
the Representative designates and will cooperate in continuing such
qualifications in effect so long as required for the distribution of the Notes;
provided, however, that neither the Bank nor the Trust shall be obligated to
qualify to do business in any jurisdiction in which it is not currently so
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(e) For a period from the date of this Agreement until the
retirement of the Notes, the Bank, as Servicer, will furnish to the
Representative copies of each certificate and the annual statements of
compliance delivered to the Noteholders and the independent certified public
accountants' and reports furnished
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to the Indenture Trustee or the Owner Trustee pursuant to the Sale and Servicing
Agreement, as soon as practicable after such statements and reports are
furnished to the Indenture Trustee or the Owner Trustee.
(f) So long as any of the Notes is outstanding, the Bank will
furnish to the Representative as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Bank to the Noteholders, (B)
all documents filed, or caused to be filed, by the Bank with respect to the
Trust with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and any order of the Commission thereunder or
pursuant to a "no-action" letter from the staff of the Commission and (C) from
time to time, such other information in the possession of the Bank concerning
the Trust and any other information concerning the Bank filed with any
governmental or regulatory authority which is otherwise publicly available, as
the Representative may reasonably request.
(g) On or before the Closing Date, the Bank shall cause its
computer records relating to the Receivables to be marked to show the Trust's
absolute ownership of the Receivables, and from and after the Closing Date
neither the Bank nor the Servicer shall take any action inconsistent with the
Trust's ownership of such Receivables and the security interest of the Indenture
Trustee therein, other than as permitted by the Sale and Servicing Agreement.
(h) To the extent, if any, that the rating provided with
respect to the Notes by Moody's, Standard & Poor's and/or Fitch is conditional
upon the furnishing of documents or the taking of any other actions by the Bank
agreed upon on or prior to the Closing Date, the Bank shall furnish such
documents and take any such other actions.
(i) For the period beginning on the date hereof and ending on
the Closing Date, unless waived by the Representative, neither the Bank nor any
trust originated, directly or indirectly, by the Bank will offer to sell or sell
notes (other than the Notes) collateralized by, or certificates (other than the
Certificates) evidencing an ownership interest in, receivables generated
pursuant to retail automobile or light-duty truck installment sale contracts or
purchase money loans.
6. Payment of Expenses. The Bank will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the Indenture Trustee's and Owner Trustee's
acceptance fee and the reasonable fees and disbursements of the counsel to the
Indenture Trustee and counsel to the Owner Trustee, (iii) the fees and
disbursements of Price Waterhouse LLP and Arthur Andersen, (iv) the fees of the
Rating Agencies and (v) blue sky expenses; provided, however, that the
Underwriters may
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reimburse the Bank for certain expenses incurred by the Bank as agreed to by the
Underwriters and the Bank.
7. Conditions to the Obligations of the Underwriters. The
obligation of the several Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties on the part of the
Bank herein on the date hereof and as of the Closing Date, to the accuracy of
the statements of officers of the Bank made pursuant to the provisions hereof,
to the performance by the Bank of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date hereof, the
Representative shall have received a letter (a "Procedures
Letter"), dated the date of this Agreement of each of Price
Waterhouse LLP and Arthur Andersen verifying the accuracy of
such financial and statistical data contained in the
Prospectus as the Representative shall deem reasonably
advisable. In addition, if any amendment or supplement to the
Prospectus made after the date hereof contains financial or
statistical data, the Representative shall have received a
letter dated the Closing Date confirming each Procedures
Letter and providing additional comfort on such new data.
(b) The Prospectus Supplement shall have been filed
in the manner and within the time period required by Rule
424(b) of the Rules and Regulations; and prior to the Closing
Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or
any development involving a prospective change, in or
affecting particularly the business or properties of the Bank,
Chase or The Chase Manhattan Corporation which, in the
reasonable judgment of the Representative, materially impairs
the investment quality of the Notes or makes it impractical to
market the Notes; (ii) any suspension or material limitation
of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of
the Bank, Chase or The Chase Manhattan Corporation on any
exchange or in the over-the-counter market by such exchange or
over-the-counter market or by the Commission; (iii) any
banking moratorium declared by federal or New York
authorities; or (iv) any outbreak or material escalation of
major hostilities or any other substantial national or
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international calamity or emergency if, in the reasonable
judgment of the Representative, the effect of any such
outbreak, escalation, calamity or emergency on the United
States financial markets makes it impracticable or inadvisable
to proceed with completion of the sale of and any payment for
the Notes.
(d) The Representative shall have received opinions,
dated the Closing Date and reasonably satisfactory, when taken
together, in form and substance to the Representative, of
Simpson Thacher & Bartlett, special counsel to the Bank,
Richards Layton & Finger, special counsel to the Trust, and
such other counsel otherwise reasonably acceptable to the
Representative, with respect to such matters as are customary
for the type of transaction contemplated by this Agreement.
(e) The Representative shall have received an opinion
or opinions of Simpson Thacher & Bartlett, special counsel to
the Bank, dated the Closing Date and satisfactory in form and
substance to the Representative, with respect to certain
matters relating to the transfers of the Receivables from the
Bank to the Trust and with respect to a grant of a security
interest in the Receivables to the Indenture Trustee, and an
opinion of Richards, Layton & Finger, special counsel to the
Trust, with respect to the perfection of the Trust's and the
Indenture Trustee's interests in the Receivables.
(f) The Representative shall have received from
Orrick, Herrington & Sutcliffe LLP, counsel to the
Underwriters, such opinion or opinions, dated the Closing Date
and satisfactory in form and substance to the Representative,
with respect to the validity of the Notes, the Registration
Statement, the Prospectus and other related matters as the
Representative may require, and the Bank shall have furnished
to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) The Representative shall have received an opinion
of Simpson Thacher & Bartlett, special tax counsel to the
Bank, dated the Closing Date and reasonably satisfactory in
form and substance to the Representative, with respect to such
matters as are customary for the type of transaction
contemplated by this Agreement.
(h) The Representative shall have received an opinion
of Dorsey & Whitney LLP, counsel to the Indenture Trustee,
dated the Closing Date and satisfactory in form and substance
to the
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Representative, with respect to such matters as are
customary for the transactions contemplated by this Agreement.
In rendering such opinions, counsel to the Indenture Trustee
may rely on the opinion of the office of the general counsel to the Indenture
Trustee.
(i) The Representative shall have received an opinion
of Richards, Layton & Finger, special counsel to the Owner
Trustee, and such other counsel reasonably satisfactory to the
Representative and its counsel, dated the Closing Date and
satisfactory in form and substance to the Representative, with
respect to such matters as are customary for the type of
transaction contemplated by this Agreement;
(j) The Class A-1 Notes shall have been rated "A- 1+"
by Standard & Poor's, P-1 by Moody's and "F-1+" by Fitch. The
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class
A-5 Notes shall have been rated "AAA" by Standard & Poor's,
Aaa by Moody's and "AAA" by Fitch. The Certificates shall have
been rated "A+" by Standard & Poor's, A2 by Moody's and "A+"
by Fitch;
(k) The Representative shall have received a
certificate, dated the Closing Date, of an attorney-in-fact, a
Vice President or more senior officer of the Bank in which
such person, to the best of his or her knowledge after
reasonable investigation, shall state that (i) the
representations and warranties of the Bank in this Agreement
are true and correct in all material respects on and as of the
Closing Date, (ii) the Bank has complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (iii) the
representations and warranties of the Bank, as Seller and
Servicer, in the Sale and Servicing Agreement and, as
Depositor in the Trust Agreement are true and correct as of
the dates specified in the Sale and Servicing Agreement and
the Trust Agreement, (iv) that no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are threatened by the Commission, (v) that, subsequent to the
date of the Prospectus, there has been no material adverse
change in the financial position or results of operation of
the Bank's automotive finance business except as set forth in
or contemplated by the Prospectus or as described in such
certificate and (vi) the Prospectus does not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
11
<PAGE>
circumstances in which they were made, not misleading; and
(l) On the Closing Date, $29,148,275.79 aggregate
amount of Certificates shall have been issued and sold
pursuant to the Certificate Underwriting Agreement.
The Bank will furnish the Representative, or cause the
Representative to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
requests.
8. Indemnification. (a) The Bank will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, to
which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in any preliminary prospectus
supplement, the Registration Statement, the Prospectus (other than any market
making prospectus) or any amendment or supplement thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that (i)
the Bank shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of, or is based upon, an untrue statement
or alleged untrue statement or omission or alleged omission made in any
preliminary prospectus supplement, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Bank by any Underwriter through the
Representative expressly for use therein and (ii) such indemnity with respect to
any preliminary prospectus supplement shall not inure to the benefit of any
Underwriter (or any person controlling any such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the Notes
which are the subject thereof if such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) at or prior to the confirmation
of the sale of such Notes to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in such preliminary prospectus supplement was corrected in the
Prospectus (or the Prospectus as supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Bank, its directors, each of its officers or agents who signed the
Registration Statement, and each person, if any, who controls the Bank within
the meaning of Section 15 of the Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
12
<PAGE>
this Section 8, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or
omissions, made in any preliminary prospectus supplement, the Registration
Statement or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Bank by such
Underwriter through the Representative expressly for use in such preliminary
prospectus supplement, the Registration Statement or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have hereunder or otherwise, other than on account of this
indemnity agreement. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party with respect to such action), and it being understood that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys, and,
after notice from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party under subsections (a) or (b) of this Section 8
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the indemnified party, in connection with the defense
thereof other than reasonable costs of investigation.
(d) The obligations of the Bank under this Section 8 shall be
in addition to any liability which the Bank may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and each Underwriter's obligations
under this Section 8 shall be in addition to any liability which such
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank and to each person, if any,
who controls the Bank within the meaning of Section 15 of the Act.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance with
its terms, the Bank and the Underwriters shall contribute to the aggregate
losses,
13
<PAGE>
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Bank or the Underwriters, as incurred, in
such proportions so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount and commissions
bear to the initial public offering price appearing thereon and the Bank is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act shall
have the same rights to contribution as such Underwriter, and each director of
the Bank, each officer or agent of the Bank who signed the Registration
Statement, and each person, if any, who controls the Bank within the meaning of
Section 15 of the Act shall have the same rights to contribution as the Bank.
10. Default of Underwriters. If any Underwriter defaults in
its obligations to purchase Notes hereunder and the aggregate principal amount
of the Notes that such defaulting Underwriter agreed but failed to purchase does
not exceed 10% of the total principal amount of Notes, the Representative may
make arrangements satisfactory to the Bank for the purchase of such Notes by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Notes that such defaulting Underwriter agreed but failed to
purchase. If any Underwriter so defaults and the aggregate principal amount of
the Notes with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Notes and arrangements satisfactory to the
Representative and the Bank for the purchase of such Notes by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Bank,
except as provided in Section 11. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriters, the Bank or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If for any reason the purchase of the Notes by the
Underwriters is not consummated, the Bank shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 6 and the respective
obligations of the Bank
14
<PAGE>
and the Underwriters pursuant to Section 8 and 9 shall remain in effect. If the
purchase of the Notes by the Underwriters is not consummated for any reason
other than solely because of the occurrence of any event specified in clauses
(ii), (iii) or (iv) of Section 7(c), the Bank will reimburse each Underwriter
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Notes.
12. Notices. All communications hereunder will be in writing
and, if sent to the Representative or the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representative at Chase Securities
Inc., 270 Park Avenue, 7th Floor, New York, New York 10017, Attention: Asset
Backed Finance Division, or, if sent to the Bank, will be mailed, delivered, or
telegraphed and confirmed to Chase Manhattan Bank USA, N.A., c/o Chase Manhattan
Automotive Finance Corporation, 900 Stewart Avenue, Garden City, New York 11530,
Attention: Financial Controller.
13. Successors. This Agreement will inure to the benefit of,
and be binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. No Bankruptcy Petition. Each Underwriter covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all securities issued by the Trust, it will not institute against, or
join any other person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
15
<PAGE>
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16
<PAGE>
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement among the Bank
and the several Underwriters in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA, N.A.
By /s/ Keith Schuck
---------------------------
Name: Keith Schuck
Title: Vice President
The foregoing Note
Underwriting Agreement is
hereby confirmed and accepted
as of the date first written
above:
Chase Securities Inc. on
behalf of itself and as
Representative of the Several
Underwriters, named in
Schedule I
By /s/ Andrew Dym
------------------------
Name: Andrew R. Dym
Title: Managing Director
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of Principal Amount Principal Amount
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes of Class A-4 Notes of Class A-5 Notes
----------- ------------------- ------------------- ------------------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Chase Securities Inc. $33,500,000 $49,000,000 $38,000,000 $22,500,000 $12,000,000
Bear, Stearns & Co., Inc $33,300,000 $49,000,000 $37,800,000 $22,100,000 $11,600,000
Credit Suisse First $33,300,000 $49,000,000 $37,800,000 $22,100,000 $11,600,000
Boston Corporation
First Chicago $33,300,000 $49,000,000 $37,800,000 $22,100,000 $11,600,000
Capital Markets,
Inc.
Smith Barney Inc. $33,300,000 $49,000,000 $37,800,000 $22,100,000 $11,600,000
UBS Securities LLC $33,300,000 $49,000,000 $37,800,000 $22,100,000 $11,600,000
----------- ----------- ----------- ----------- -----------
Total $200,000,000 $294,000,000 $227,000,000 $133,000,000 $70,000,000
</TABLE>
18
<PAGE>
EXECUTION COPY
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
ASSET BACKED CERTIFICATES
CHASE MANHATTAN BANK USA, N.A.
Seller and Servicer
CERTIFICATE UNDERWRITING AGREEMENT
June 11, 1997
Chase Securities Inc.
270 Park Avenue
New York, NY 10017
Ladies and Gentlemen:
1. Introductory. Chase Manhattan Bank USA, N.A., a national
banking association (the "Bank"), proposes to form Chase Manhattan Auto Owner
Trust 1997-B (the "Trust") to sell $29,148,275.79 aggregate principal amount of
6.750% Asset Backed Certificates (the "Certificates"), each representing a
fractional undivided interest in the Trust.
The assets of the Trust will include, among other things, a
pool of simple interest retail installment sales contracts and purchase money
notes and other notes (the "Receivables") secured by new and used automobiles
(the "Financed Vehicles") and certain monies received thereunder on and after
the Cutoff Date (as hereinafter defined), such Receivables to be transferred to
the Trust and serviced by the Bank, as Servicer, or by a successor Servicer. The
Original Pool Balance of the Receivables as of the close of business on June 1,
1997 (the "Cut-off Date") was equal to $953,148,275.79. The Certificates will be
issued pursuant to the Amended and Restated Trust Agreement to be dated as of
June 1, 1997 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Bank and Wilmington Trust Company, as owner trustee
(the "Owner Trustee").
Simultaneously with the issuance and sale of the Certificates
as contemplated herein, the Trust will issue $200,000,000 aggregate principal
amount of Class A-1 5.744% Money Market Asset Backed Notes (the "Class A-1
Notes"), $294,000,000 aggregate principal amount of Class A-2 6.100% Asset
Backed Notes (the "Class A-2 Notes"), $227,000,000 aggregate principal amount of
Class A-3 6.350% Asset Backed Notes (the "Class A-3 Notes"), $133,000,000
aggregate principal amount of Class A-4 6.500% Asset Backed Notes (the "Class
A-4 Notes") and $70,000,000 aggregate principal amount of Class A-5 6.600% Asset
Backed Notes (the "Class A-5 Notes" and, together with the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes, the "Notes"),
pursuant to the Indenture to be dated as of June 1, 1997 (as amended and
supplemented from time to time, the "Indenture"), between the Trust and Norwest
Bank Minnesota, National Association, as indenture trustee (the "Indenture
Trustee"), which will be sold pursuant to an underwriting agreement dated the
date hereof (the "Note Underwriting Agreement"; together with this Agreement,
the "Underwriting Agreements") among the Bank and the underwriters named therein
(the "Note Underwriters"). The Notes and the Certificates are sometimes referred
to collectively herein as the "Securities".
Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Sale and Servicing Agreement to
be dated as of June 1, 1997 (as amended and supplemented from time to time, the
"Sale and Servicing Agreement"), between the Trust and the Bank, as Seller and
Servicer.
This is to confirm the agreement concerning the
purchase of the Certificates from the Bank by Chase Securities
Inc. (the "Underwriter").
2. Representations and Warranties of the Bank. The Bank
represents and warrants to, and agrees with, the Underwriter, that:
(a) A registration statement on Form S-3 (No. 333-7575) has
been filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations under the Act (the "Rules and
Regulations"). Such registration statement, as amended on the date that such
registration statement or the most recent post-effective amendment thereto
became effective under the Act, including the exhibits thereto, is hereinafter
referred to as the "Registration Statement." The Registration Statement has
become effective, and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been instituted or, to the knowledge of the Bank, threatened by the Commission.
The conditions to the use of a registration statement on Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, and the conditions of Rule
415 under the Rules and Regulations, have been satisfied with respect to the
Registration Statement. The Bank proposes to file with the Commission pursuant
to Rule 424(b) of the Rules and Regulations a prospectus supplement to the Base
Prospectus (as defined herein) relating to the sale of the Securities (the
"Prospectus Supplement"). The base prospectus filed as part of the Registration
Statement, in the form it appears in the Registration Statement, or in the form
most recently revised and filed with the Commission pursuant to Rule 424(b), is
hereinafter referred to as the "Base Prospectus." The Base Prospectus as
supplemented by the Prospectus Supplement is hereinafter referred to as the
"Prospectus;"
(b) Except to the extent that the Underwriter shall have
agreed to a modification, the Prospectus shall be in all substantive respects in
the form furnished to the Underwriter prior to the execution of this Agreement
or, to the extent not completed at such time, shall contain only such material
changes as the Bank has advised the Underwriter, prior to such time, will be
included or made therein;
(c) The Registration Statement, at the time it became
effective, and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of the Act
and the Trust Indenture Act of 1939 and the Rules and Regulations and did not
include any untrue statement of a material fact and, in the case of the
Registration Statement, did not omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and,
in the case of the Prospectus, did not omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; on the Closing Date (as defined herein),
the Registration Statement and the Prospectus, as amended or supplemented as of
the Closing Date, will comply in all material respects with the applicable
requirements of the Act and the Rules and Regulations, and neither the
Prospectus nor any amendment or supplement thereto will include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Bank makes no
representation and warranty with respect to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon, or in
conformity with, information furnished in writing to the Bank by the Underwriter
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus;
(d) The Bank is a national banking association organized under
the laws of the United States, with full power and authority to own its
properties and conduct its business as described in the Prospectus, and had at
all relevant times and has power, authority and legal right to acquire, own,
sell and service the Receivables;
(e) When the Notes have been duly executed and delivered by
the Owner Trustee and, when authenticated by the Indenture Trustee in accordance
with the Indenture and delivered upon the order of the Bank to the Note
Underwriters pursuant to the Note Underwriting Agreement and the Sale and
Servicing Agreement, the Notes will be duly issued and will constitute legal,
valid and binding obligations of the Trust enforceable against the Trust in
accordance with their terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship,
3
<PAGE>
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights as such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with respect to the
Bank or the Trust or in the event of any moratorium or similar occurrence
affecting the Bank or the Trust and to general principles of equity;
(f) The direction by the Bank to the Owner Trustee to execute
and authenticate the Certificates has been duly authorized by the Bank and, when
the Certificates have been duly executed, authenticated and delivered by the
Owner Trustee in accordance with the Trust Agreement and delivered upon the
order of the Bank to the Underwriter pursuant to this Agreement and the Sale and
Servicing Agreement, the Certificates will be duly issued and entitled to the
benefits and security afforded by the Trust Agreement;
(g) The execution, delivery and performance by the Bank of
this Agreement, the Note Underwriting Agreement, and the Basic Documents to
which the Bank is a party, and the consummation by the Bank of the transactions
provided for herein and therein have been, or will have been, duly authorized by
the Bank by all necessary action on the part of the Bank; and neither the
execution and delivery by the Bank of such instruments, nor the performance by
the Bank of the transactions herein or therein contemplated, nor the compliance
by the Bank with the provisions hereof or thereof, will (i) conflict with or
result in a breach or violation of any of the material terms and provisions of,
or constitute a material default under, any of the provisions of the articles of
association or by-laws of the Bank, or (ii) conflict with any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
the Bank or its properties, or (iii) conflict with any of the material
provisions of any material indenture, mortgage, contract or other instrument to
which the Bank is a party or by which it is bound, or (iv) result in the
creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract or
other instruments, except, in the case of clauses (ii) and (iii) , for any such
breaches or conflicts as would not individually or in the aggregate have a
material adverse effect on the transactions contemplated hereby or on the
ability of the Bank to consummate such transactions;
(h) When executed and delivered by the parties thereto, each
of the Sale and Servicing Agreement and the Trust Agreement will constitute a
legal, valid and binding obligation of the Bank, enforceable against the Bank in
accordance with its terms, except to the extent that the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization, conservatorship,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights as such laws would apply in the event of the insolvency,
liquidation or reorganization or other similar occurrence with respect to the
Bank or in the event of any moratorium or similar occurrence affecting the Bank
and to general principles of equity;
4
<PAGE>
(i) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or "blue sky" laws of various jurisdictions), if so required in
connection with the execution, delivery and performance of this Agreement, the
Note Underwriting Agreement and the Basic Documents to which the Bank is a party
has been or will be taken or obtained on or prior to the Closing Date;
(j) As of the Closing Date, the representations and
warranties of the Bank, as Seller and Servicer, in the Trust Agreement will be
true and correct;
(k) This Agreement has been duly executed and delivered by the
Bank;
3. Purchase, Sale, Payment and Delivery of the Certificates.
On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Bank agrees to
sell to the Underwriter, and the Underwriter agrees, to purchase from the Bank,
at a purchase price of 99.650000% of the face amount thereof, the Certificates
plus accrued interest at the Certificate Rate from June 18, 1997 to but
excluding the Closing Date.
The Bank will deliver the Certificates to the Underwriter
against payment of the purchase price in immediately available funds drawn to
the order of the Bank at the offices of Orrick, Herrington & Sutcliffe LLP in
New York, New York at 10:00 a.m., New York City time, on June 16, 1997 or at
such other time not later than seven full business days thereafter as the
Underwriter and the Bank determine, such time being herein referred to as the
"Closing Date." The Certificates to be so delivered will be initially
represented by one or more definitive Certificates registered in the name of
Cede & Co., the nominee of The Depository Trust Company ("DTC"), except for a
Certificate registered in the name of Chase Securities Inc. in an amount of
$275.79, and will be made available for inspection by the Underwriter at the
office where delivery and payment for such Certificates is to take place no
later than 1:00 p.m., New York City time, on the Business Day prior to the
Closing Date.
4. Offering by the Underwriter. It is understood that the
Underwriter proposes to offer the Certificates for sale to the public (which may
include selected brokers and dealers) as set forth in the Prospectus.
5. Covenants of the Bank. The Bank covenants and agrees with
the Underwriter that:
(a) The Bank will file the Prospectus with the Commission
pursuant to Rule 424(b) of the Rules and Regulations within the time prescribed
therein and will provide evidence
5
<PAGE>
satisfactory to the Underwriter of such timely filing. During any period that a
prospectus relating to the Certificates is required under the Act to be
delivered to purchasers of the Certificates by the underwriters and dealers
participating in the initial offering and sale of the Certificates on the
Closing Date under the Act (without regard to any market making prospectus
required to be delivered by the Underwriter pursuant to the Act) (a "prospectus
delivery period"), the Bank will not file any amendments to the Registration
Statement, or any amendments or supplements to the Prospectus, unless it shall
first have delivered copies of such amendments or supplements to the
Underwriter, and, if the Underwriter shall have reasonably objected thereto
promptly after receipt thereof; the Bank will promptly advise the Underwriter or
its counsel (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has become or will become
effective, (ii) of any request by the Commission for any amendment or supplement
to the Registration Statement or the Prospectus or for any additional
information and (iii) of any order or communication suspending or preventing, or
threatening to suspend or prevent, the offer and sale of the Certificates or of
any proceedings or examinations that may lead to such an order or communication,
whether by or of the Commission or any authority administering any state
securities or "blue sky" law, as soon as the Bank is advised thereof, and will
use its reasonable efforts to prevent the issuance of any such order or
communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any time during the prospectus delivery period, any
event occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus in order to comply with the Act or
the Rules and Regulations, the Bank promptly will prepare and file with the
Commission (subject to the Underwriter's prior review pursuant to paragraph (a)
of this Section 5), an amendment or supplement which will correct such statement
or omission or an amendment or supplement which will effect such compliance.
(c) The Bank will furnish to the Underwriter copies of the
Registration Statement, each preliminary prospectus supplement relating to the
Certificates, the Prospectus, and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as the
Underwriter may reasonably request.
(d) The Bank will cooperate with the Underwriter in arranging
for the qualification of the Certificates for sale and the determination of
their eligibility for investment under the laws of such jurisdictions as the
Underwriter designates and will cooperate in continuing such qualifications in
effect so long as required for the distribution of the Certificates; provided,
6
<PAGE>
however, that neither the Bank nor the Trust shall be obligated to qualify to do
business in any jurisdiction in which it is not currently so qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(e) For a period from the date of this Agreement until the
retirement of the Certificates, the Bank, as Servicer, will furnish to the
Underwriter copies of each certificate and the annual statements of compliance
delivered to independent certified public accountants' and reports furnished to
the Indenture Trustee or the Owner Trustee pursuant to the Sale and Servicing
Agreement, as soon as practicable after such statements and reports are
furnished to the Indenture Trustee or the Owner Trustee.
(f) So long as any of the Certificates is outstanding, the
Bank will furnish to the Underwriter as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Bank to the Certificateholders,
(B) all documents filed, or caused to be filed, by the Bank with respect to the
Trust with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and any order of the Commission thereunder or
pursuant to a "no-action" letter from the staff of the Commission and (C) from
time to time, such other information in the possession of the Bank concerning
the Trust and any other information concerning the Bank filed with any
governmental or regulatory authority which is otherwise publicly available, as
the Underwriter may reasonably request.
(g) On or before the Closing Date, the Bank shall cause its
computer records relating to the Receivables to be marked to show the Trust's
absolute ownership of the Receivables, and from and after the Closing Date
neither the Bank nor the Servicer shall take any action inconsistent with the
Trust's ownership of such Receivables and the security interest of the Indenture
Trustee therein, other than as permitted by the Sale and Servicing Agreement.
(h) To the extent, if any, that the rating provided with
respect to the Certificates by Moody's, Standard & Poor's and/or Fitch is
conditional upon the furnishing of documents or the taking of any other actions
by the Bank agreed upon on or prior to the Closing Date, the Bank shall furnish
such documents and take any such other actions.
(i) For the period beginning on the date hereof and ending on
the Closing Date, unless waived by the Underwriter, neither the Bank nor any
trust originated, directly or indirectly, by the Bank will offer to sell or sell
notes (other than the Notes) collateralized by, or certificates (other than the
Certificates) evidencing an ownership interest in, receivables generated
pursuant to retail automobile or light duty truck installment sale contracts or
purchase money loans.
7
<PAGE>
6. Payment of Expenses. The Bank will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the Indenture Trustee's and Owner Trustee's
acceptance fee and the reasonable fees and disbursements of the counsel to the
Indenture Trustee and counsel to the Owner Trustee, (iii) the fees and
disbursements of Price Waterhouse LLP and Arthur Andersen, (iv) the fees of the
Rating Agencies and (v) blue sky expenses; provided, however, that the
Underwriter may reimburse the Bank for certain expenses incurred by the Bank as
agreed to by the Underwriter and the Bank.
7. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Bank herein on the date hereof and as of the Closing Date, to the accuracy of
the statements of officers of the Bank made pursuant to the provisions hereof,
to the performance by the Bank of its obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date hereof the Underwriter
shall have received a letter (a "Procedures Letter"), dated
the date of this Agreement of each of Price Waterhouse LLP and
Arthur Andersen verifying the accuracy of such financial and
statistical data contained in the Prospectus as the
Underwriter shall deem reasonably advisable. In addition, if
any amendment or supplement to the Prospectus made after the
date hereof contains financial or statistical data, the
Underwriter shall have received a letter dated the Closing
Date confirming each Procedures Letter and providing
additional comfort on such new data;
(b) The Prospectus Supplement shall have been filed
in the manner and within the time period required by Rule
424(b) of the Rules and Regulations; and prior to the Closing
Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened;
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or
any development involving a prospective change, in or
affecting particularly the business or properties of the Bank,
Chase or The Chase Manhattan Corporation which, in the
reasonable judgment of the Underwriter, materially impairs the
investment quality of the Certificates or makes it impractical
to market the Certificates; (ii) any suspension or material
limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum
8
<PAGE>
prices for trading on such exchange, or any suspension of
trading of any securities of the Bank, Chase or The Chase
Manhattan Corporation on any exchange or in the
over-the-counter market by such exchange or over-the-counter
market or by the Commission; (iii) any banking moratorium
declared by Federal or New York authorities; or (iv) any
outbreak or material escalation of major hostilities or any
other substantial national or international calamity or
emergency if, in the reasonable judgment of the Underwriter,
the effect of any such outbreak, escalation, calamity or
emergency on the United States financial markets makes it
impracticable or inadvisable to proceed with completion of the
sale of and any payment for the Certificates;
(d) The Underwriter shall have received opinions,
dated the Closing Date and reasonably satisfactory, when taken
together, in form and substance to the Underwriter, of Simpson
Thacher & Bartlett, special counsel to the Bank, Richards,
Layton & Finger, special counsel to the Trust, and such other
counsel otherwise reasonably acceptable to the Underwriter,
with respect to such matters as are customary for the type of
transaction contemplated by this Agreement;
(e) The Underwriter shall have received an opinion or
opinions of Simpson Thacher & Bartlett, special counsel to the
Bank, dated the Closing Date and satisfactory in form and
substance to the Underwriter, with respect to certain matters
relating to the transfers of the Receivables from the Bank to
the Trust and with respect to a grant of a security interest
in the Receivables to the Indenture Trustee, and an opinion of
Richards, Layton & Finger, Special Counsel to the Trust, with
respect to the perfection of the Trust's and the Indenture
Trustee's interests in the Receivables;
(f) The Underwriter shall have received from Orrick,
Herrington & Sutcliffe LLP, counsel to the Underwriter, such
opinion or opinions, dated the Closing Date and satisfactory
in form and substance to the Underwriter, with respect to the
validity of the Certificates, the Registration Statement, the
Prospectus and other related matters as the Underwriter may
require, and the Bank shall have furnished to such counsel
such documents as they reasonably request for the purpose of
enabling them to pass upon such matters;
(g) The Underwriter shall have received an opinion of
Simpson Thacher & Bartlett, special tax counsel to the Bank,
dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriter, with respect to such matters as
are
9
<PAGE>
customary for the type of transaction contemplated by this
Agreement;
(h) The Underwriter shall have received an opinion of
counsel to the Indenture Trustee, dated the Closing Date and
satisfactory in form and substance to the Underwriter with
respect to such matters as are customary for the transactions
contemplated by this Agreement;
In rendering such opinions, counsel to the Indenture Trustee
may rely on the opinion of the office of the general counsel to the Indenture
Trustee.
(i) The Underwriter shall have received an opinion of
counsel to the Owner Trustee, and such other counsel
reasonably satisfactory to the Underwriter and its counsel,
dated the Closing Date and satisfactory in form and substance
to the Underwriter, with respect to such matters as are
customary for the type of transaction contemplated by this
Agreement;
(j) The Certificates have been rated "A+" by
Standard & Poor's, A2 by Moody's and "A+" by Fitch;
(k) The Underwriter shall have received a
certificate, dated the Closing Date, of an attorney-in-fact, a
Vice President or more senior officer of the Bank in which
such person, to the best of his or her knowledge after
reasonable investigation, shall state that (i) the
representations and warranties of the Bank in this Agreement
are true and correct in all material respects on and as of the
Closing Date, (ii) that the Bank has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing
Date, (iii) the representations and warranties of the Bank, as
Seller and Servicer, in the Sale and Servicing Agreement and,
as Depositor, in the Trust Agreement, are true and correct as
of the dates specified in the Sale and Servicing Agreement and
the Trust Agreement, (iv) that no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are threatened by the Commission, (v) that, subsequent to the
date of the Prospectus, there has been no material adverse
change in the financial position or results of operation of
the Bank's automotive finance business except as set forth in
or contemplated by the Prospectus or as described in such
certificate and (vi) the Prospectus does not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances in which they were made, not misleading;
10
<PAGE>
(l) On the Closing Date, all of the Notes shall
have been issued and sold pursuant to the Note
Underwriting Agreement; and
(m) The Class A-1 Notes shall have been rated "A-1+"
by Standard & Poor's, P-1 by Moody's and "F-1+" by Fitch. The
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class
A-5 Notes shall have been rated "AAA" by Standard & Poor's,
Aaa by Moody's and "AAA" by Fitch.
The Bank will furnish the Underwriter, or cause the
Underwriter to be furnished, with such number of conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests.
8. Indemnification. (a) The Bank will indemnify and hold
harmless the Underwriter against any losses, claims, damages or liabilities, to
which the Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in any preliminary prospectus
supplement, the Registration Statement), the Prospectus (other than any market
making prospectus) or any amendment or supplement thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with investigating
or defending any such action or claim; provided, however, that (i) the Bank
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of, or is based upon, an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
prospectus supplement, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Bank by the Underwriter expressly for use therein
and (ii) such indemnity with respect to any preliminary prospectus supplement
shall not inure to the benefit of the Underwriter (or any person controlling any
the Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Certificates which are the subject thereof if such
person did not receive a copy of the Prospectus (or the Prospectus as
supplemented) at or prior to the confirmation of the sale of such Certificates
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such preliminary
prospectus supplement was corrected in the Prospectus (or the Prospectus as
supplemented).
(b) The Underwriter agrees to indemnify and hold harmless the
Bank, its directors, each of its officers or agents who signed the Registration
Statement, and each person, if any,
11
<PAGE>
who controls the Bank within the meaning of Section 15 of the Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section 8, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in any preliminary prospectus supplement, the Registration
Statement or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Bank by the
Underwriter expressly for use in such preliminary prospectus supplement, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have hereunder or otherwise, other than on account of this
indemnity agreement. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party with respect to such action), and it being understood that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys, and,
after notice from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party under subsections (a) or (b) of this Section 8
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the indemnified party, in connection with the defense
thereof other than reasonable costs of investigation.
(d) The obligations of the Bank under this Section 8 shall be
in addition to any liability which the Bank may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the Underwriter's obligations
under this Section 8 shall be in addition to any liability which the Underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Bank and to each person, if any, who controls the
Bank within the meaning of Section 15 of the Act.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be
12
<PAGE>
unavailable other than in accordance with its terms, the Bank and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Bank or the Underwriter, as incurred, in such proportions so
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discount and commissions bear to the initial
public offering price appearing thereon and the Bank is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act shall have
the same rights to contribution as the Underwriter, and each director of the
Bank, each officer or agent of the Bank who signed the Registration Statement,
and each person, if any, who controls the Bank within the meaning of Section 15
of the Act shall have the same rights to contribution as the Bank.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Bank or its officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation or statement as to the results thereof, made by or on
behalf of the Underwriter, the Bank or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Certificates. If for any reason the purchase of the
Certificates by the Underwriter is not consummated, the Bank shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
6 and the respective obligations of the Bank and the Underwriter pursuant to
Section 5, 6, 8 and 9 shall remain in effect. If the purchase of the
Certificates by the Underwriter is not consummated for any reason other than
solely because of the occurrence of any event specified in clauses (ii), (iii)
or (iv) of Section 7(c), the Bank will reimburse the Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Certificates.
11. Notices. All communications hereunder will be in writing
and, if sent to the Underwriter, will be mailed, delivered or telegraphed and
confirmed to the Underwriter at Chase Securities Inc., 270 Park Avenue, 7th
Floor, New York, New York 10017, Attention: Asset Backed Finance Division, or,
if sent to the Bank, will be mailed, delivered, or telegraphed and confirmed to
Chase Manhattan Bank USA, N.A. c/o Chase Manhattan Automotive Finance
Corporation, 900 Stewart Avenue, Garden City, New York, New York 11530,
Attention: Financial Controller.
13
<PAGE>
12. Successors. This Agreement will inure to the benefit of,
and be binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Certificates
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
14. No Bankruptcy Petition. The Underwriter covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all securities issued by the Trust, it will not institute against, or
join any other person in instituting against, the Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any federal or state bankruptcy or similar law.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14
<PAGE>
If the foregoing is in accordance with the Underwriter's
understanding of our agreement, kindly sign and return to us the enclosed
duplicate hereof, whereupon it will become a binding agreement between the Bank
and the Underwriter in accordance with its terms.
Very truly yours,
CHASE MANHATTAN BANK USA, N.A.
By /s/ Keith Schuck
----------------------------
Name: Keith Schuck
Title: Vice President
The foregoing Underwriting
Agreement is hereby
confirmed and accepted
as of the date
first written above:
By /s/ Andrew Dym
--------------------------
Name: Andrew R. Dym
Title: Managing Director
<PAGE>
EXECUTION COPY
================================================================================
CHASE MANHATTAN BANK USA, N.A.,
a National Banking Association
as Seller and Servicer
and
CHASE MANHATTAN AUTO OWNER TRUST 1997-B,
as Issuer
=================================
SALE AND SERVICING AGREEMENT
Dated as of June 1, 1997
=================================
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.1. Definitions.............................................. 1
SECTION 1.2. Usage of Terms........................................... 27
SECTION 1.3. Simple Interest Method;
Allocations............................................ 28
SECTION 1.4. Calculations Relating to the
July 1998 Distribution Date............................ 28
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. Conveyance of Receivables................................ 28
SECTION 2.2. Closing.................................................. 29
ARTICLE III
THE RECEIVABLES
SECTION 3.1. Representations and Warranties
of Seller; Conditions Relating to Receivables.......... 30
SECTION 3.2. Repurchase Upon Breach or
Failure of a Condition................................. 35
SECTION 3.3. Custody of Receivable Files.............................. 36
SECTION 3.4. Duties of Servicer as Custodian.......................... 36
SECTION 3.5. Instructions; Authority to Act........................... 37
SECTION 3.6. Custodian's Indemnification.............................. 37
SECTION 3.7. Effective Period and Termination......................... 38
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1. Duties of Servicer....................................... 38
SECTION 4.2. Collection of Receivable
Payments; Refinancing.................................. 39
SECTION 4.3. Realization Upon Receivables............................. 40
SECTION 4.4. Maintenance of Security
Interests in Financed Vehicles......................... 40
SECTION 4.5. Covenants of Servicer.................................... 41
SECTION 4.6. Purchase of Receivables Upon
Breach................................................. 42
SECTION 4.7. Servicing Fee............................................ 42
SECTION 4.8. Servicer's Certificate................................... 43
i
<PAGE>
Page
SECTION 4.9. Annual Statement as to
Compliance............................................. 43
SECTION 4.10. Annual Audit Report...................................... 44
SECTION 4.11. Access by Holders to Certain
Documentation and Information Regarding
Receivables............................................ 45
SECTION 4.12. Reports to Holders and the
Rating Agencies........................................ 45
SECTION 4.13. Reports to the Securities and
Exchange Commission.................................... 46
ARTICLE V
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1. Establishment of Accounts................................ 46
SECTION 5.2. Collections.............................................. 47
SECTION 5.3. [Reserved].............................................. 48
SECTION 5.4. Additional Deposits...................................... 48
SECTION 5.5. Distributions............................................ 48
SECTION 5.6. Reserve Account.......................................... 51
SECTION 5.7. Net Deposits............................................. 53
SECTION 5.8. Statements to
Certificateholders and Noteholders..................... 53
ARTICLE VI
THE SELLER
SECTION 6.1. Representations of Seller................................ 54
SECTION 6.2. Liability of Seller; Indemnities......................... 56
SECTION 6.3. Merger or Consolidation of
Seller................................................. 57
SECTION 6.4. Limitation on Liability of
Seller and Others...................................... 57
SECTION 6.5. Seller May Own Notes and
Certificates........................................... 57
ARTICLE VII
THE SERVICER
SECTION 7.1. Representations of Servicer.............................. 58
SECTION 7.2. Liability of Servicer;
Indemnities............................................ 60
SECTION 7.3. Merger or Consolidation of
Servicer............................................... 61
ii
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Page
SECTION 7.4. Limitation on Liability of
Servicer and Others.................................... 61
SECTION 7.5. Servicer Not To Resign................................... 62
SECTION 7.6. Delegation of Duties..................................... 63
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1. Events of Servicing Termination.......................... 63
SECTION 8.2. Indenture Trustee to Act;
Appointment of Successor Servicer...................... 65
SECTION 8.3. Notification to Noteholders and
Certificateholders..................................... 66
SECTION 8.4. Waiver of Past Defaults.................................. 66
ARTICLE IX
TERMINATION
SECTION 9.1. Optional Purchase of All
Receivables; Trust Termination......................... 67
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Amendment................................................ 69
SECTION 10.2. Protection of Title to Owner
Trust Estate........................................... 70
SECTION 10.3. GOVERNING LAW............................................ 73
SECTION 10.4. Notices.................................................. 73
SECTION 10.5. Severability of Provisions............................... 73
SECTION 10.6. Assignment............................................... 73
SECTION 10.7. Certificates and Notes
Nonassessable and Fully Paid........................... 74
SECTION 10.8. Third-Party Beneficiaries................................ 74
SECTION 10.9. Assignment to Indenture Trustee.......................... 74
SECTION 10.10 Limitation of Liability of
Owner Trustee and Indenture Trustee.................... 74
iii
<PAGE>
SCHEDULES
Schedule A - List of Receivables
Schedule B - Location of Receivable Files
EXHIBITS
Exhibit A - Form of Servicer's Certificate
Exhibit B - Form of Monthly Report
iv
<PAGE>
This Sale and Servicing Agreement, dated as of June 1, 1997
(as amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement") is made between CHASE MANHATTAN BANK USA, N.A., a national
banking association having its principal executive offices located at 802
Delaware Avenue, Wilmington, Delaware 19801 ("Chase USA," the "Seller" or the
"Servicer" in its respective capacities as such), and CHASE MANHATTAN AUTO OWNER
TRUST 1997-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.
"Accounts" means, collectively, the Collection Account
and the Note Distribution Account.
"Administration Agreement" means the Administration Agreement
dated as of June 1, 1997, among the Issuer, the Administrator and the Indenture
Trustee, as the same may be amended and supplemented from time to time.
"Administrator" means The Chase Manhattan Bank, a New York
banking corporation, as administrator, and its successors and assigns.
"Administration Fee" means $1,000, the fee payable to the
Administrator on each Distribution 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
<PAGE>
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 Distribution Date, the
amount equal to (i) the aggregate principal balance of the Receivables that
became Defaulted Receivables during the related Collection Period minus (ii) the
Liquidation Proceeds allocable to principal collected during such Collection
Period with respect to any Defaulted Receivables.
"Amount Financed" in respect of a Receivable means the amount
advanced under the Receivable toward the purchase price of the Financed Vehicle
and related costs.
"Assertion" has the meaning specified in Section 4.10.
"Authenticating Agent" has the meaning specified in Section
2.13 of the Indenture and shall initially be the corporate trust office of
Chase, and its successors and assigns in such capacity.
"Authorized Officer" means any officer of the Owner Trustee,
Indenture Trustee or Servicer who is authorized to act on behalf of the Owner
Trustee, Indenture Trustee or Servicer, as applicable, and who is identified as
such on the list of authorized officers delivered by each such party on the
Closing Date.
"Authorized Newspaper" means a leading daily newspaper in the
English language of general circulation in Luxembourg. On the Closing Date, the
Luxemburger Wort shall constitute an "Authorized Newspaper." If, because of
temporary or permanent suspension of publication or general circulation of any
newspaper or for any other reason, it is impossible or, in the opinion of the
Indenture Trustee, impracticable to make any publication of any notice required
hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given in Luxembourg with the approval of the Indenture
Trustee shall constitute a sufficient publication of such notice.
"Available Interest" means, for any Distribution Date, that
portion of Collections on the Receivables received during the related Collection
Period allocated to interest and, to the extent attributable to interest, the
Repurchase Amount received
2
<PAGE>
with respect to each Receivable repurchased by the Seller or purchased by the
Servicer under an obligation that arose during the related Collection Period.
"Available Principal" means, for any Distribution Date, that
portion of Collections on the Receivables received during the related Collection
Period allocated to the principal balance of the Receivables, and, to the extent
attributable to principal, the Repurchase Amount received with respect to each
Receivable repurchased by the Seller or purchased by the Servicer under an
obligation that arose during the related Collection Period.
"Available Reserve Account Amount" shall mean, for each
Distribution 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 Distribution Date.
"Average Delinquency Percentage" means for any Distribution
Date, the average of the Delinquency Percentages for such Distribution Date and
the preceding two (2) Distribution Dates.
"Average Net Loss Ratio" means for any Distribution Date, the
average of the Net Loss Ratios for such Distribution Date and the preceding two
(2) Distribution Dates.
"Basic Documents" means this Agreement, the Certificate of
Trust, the Indenture, the Depository Agreements, the Trust Agreement, the
Administration Agreement and other documents and certificates delivered in
connection therewith.
"Benefit Plan" has the meaning specified in Section
11.12 of the Trust Agreement.
"Book-Entry Certificates" means beneficial interests in the
Certificates, the ownership and transfers of which shall be made through book
entries by a Clearing Agency or Foreign Clearing Agency as described in Section
3.10 of the Trust Agreement.
"Book-Entry Notes" means beneficial interests in the Notes,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency or Foreign Clearing Agency as described in Section 2.10 of the
Indenture.
"Business Day" means a day, other than a Saturday or a Sunday,
on which the Indenture Trustee and banks located in New York, New York,
Wilmington, Delaware and Minneapolis, Minnesota are open for the purpose of
conducting a commercial banking business.
3
<PAGE>
"Business 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.
"Capital Accounts" has the meaning specified in
Section 5.7 of the Trust Agreement.
"CEDEL" means Cedel Bank, societe anonyme.
"Certificate" means a certificate evidencing the beneficial
interest of a Certificateholder in the Owner Trust Estate, substantially in the
form of Exhibit A to the Trust Agreement.
"Certificate Balance" $29,148,275.79 as of the Closing Date
and, thereafter, means an amount equal to such initial Certificate Balance,
reduced by all amounts allocable to principal previously distributed to
Certificateholders. The Certificate Balance shall also be reduced on any
Distribution Date by the excess, if any, of (i) the sum of (A) the Certificate
Balance and (B) the outstanding principal amount of the Notes (in each case
after giving effect to amounts in respect of principal to be deposited in the
Certificate Distribution Account and the Note Distribution Account on such
Distribution Date), over (ii) the Pool Balance as of the close of business on
the last day of the preceding Collection Period. Thereafter, the Certificate
Balance shall be increased on any Distribution Date to the extent that any
portion of the Total Distribution Amount on any Distribution Date is available
to pay the existing Certificateholders' Principal Carryover Shortfall, but not
by more than the aggregate reductions in the Certificate Balance set forth in
the preceding sentence.
"Certificate Depository Agreement" means the agreement among
the Issuer, the Owner Trustee, Chase, as agent for the Depository Trust Company
and The Depository Trust Company, as the initial Clearing Agency, dated the
Closing Date, relating to the Certificates, substantially in the form attached
as Exhibit C to the Trust Agreement, as the same may be amended and supplemented
from time to time.
"Certificate Distribution Account" has the meaning
specified in Section 5.1 of the Trust Agreement.
"Certificate Final Scheduled Distribution Date" means the
January 2004 Distribution 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
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the Issuer pursuant to Section 3810(a) of the Business Trust Statute.
"Certificate Owner" means, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency or Foreign Clearing Agency or on
the books of a direct or indirect Clearing Agency Participant.
"Certificate Pool Factor" as of the close of business on a
Distribution Date means a eight-digit decimal figure equal to the Certificate
Balance (after giving effect to distributions made on such date) divided by the
Certificate Balance as of the Closing Date. 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 6.75% per annum.
"Certificate Register" and "Certificate Registrar" means the
register maintained and the registrar appointed pursuant to Section 3.4 of the
Trust Agreement.
"Certificateholder" means the Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent, request, waiver or demand pursuant to any of
the Basic Documents, 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 Distribution Date, the sum of the Certificateholders' Principal
Distributable Amount and the Certificateholders' Interest Distributable Amount.
"Certificateholders' Interest Carryover Shortfall" means, (a)
for the initial Distribution Date, zero, and (b) for any other Distribution
Date, the excess of the Certificateholders' Interest Distributable Amount for
the preceding Distribution Date, over the amount in respect of the interest
actually deposited in the Certificate Distribution Account on such preceding
Distribution Date, plus interest on such excess, to the extent permitted by law,
at the Certificate Rate from and including such preceding Distribution Date to,
but excluding, the current Distribution Date.
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"Certificateholders' Interest Distributable Amount" means,
for any Distribution Date, the sum of the Certificateholders' Monthly Interest
Distributable Amount for such Distribution Date and the Certificateholders'
Interest Carryover Shortfall for such Distribution Date.
"Certificateholders' Monthly Interest Distributable Amount"
means, for any Distribution Date, one month's interest (or, in the case of the
first Distribution Date, interest accrued from and including the Closing Date
to, but excluding, such Distribution Date) at the Certificate Rate on the
Certificate Balance on the immediately preceding Distribution Date, after giving
effect to all principal payments on such Distribution Date, (or, in the case of
the first Distribution Date, the Certificate Balance on the Closing Date).
Interest shall be computed on the basis of a 360 day-year of twelve 30-day
months for purposes of this definition.
"Certificateholders' Monthly Principal Distributable Amount"
means, for any Distribution Date prior to the Distribution Date on which the
Notes have been paid in full, zero; and for any Distribution Date commencing on
or after the Distribution Date on which the Notes have been paid in full, 100%
of the Principal Distribution Amount (less the portion of the Principal
Distribution Amount required on the first such Distribution Date to pay the
Notes in full).
"Certificateholders' Principal Carryover Shortfall" means for
any Distribution Date, the sum of (a) the excess of (i) the Certificateholders'
Principal Distributable Amount for the preceding Distribution Date, over (ii)
the amount in respect of principal actually deposited in the Certificate
Distribution Account on such Distribution 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 Distribution Date, the sum of (i) the Certificateholders' Monthly
Principal Distributable Amount for such Distribution Date and (ii) the
Certificateholders' Principal Carryover Shortfall for such Distribution Date;
provided that the Certificateholders' Principal Distributable Amount shall not
exceed the Certificate Balance. In addition, on the Certificate Final Scheduled
Distribution Date, the principal required to be distributed to 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
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Distribution Date and allocable to principal) to reduce the Certificate Balance
to zero, in either case after giving effect to any required distribution of the
Noteholders' Principal Distributable Amount to the Note Distribution Account.
"Chase" means The Chase Manhattan Bank, a New York
banking corporation.
"Chase Connecticut Loan" means a motor vehicle retail
installment sales contract or purchase money loan serviced by Chase USA and
either originated by The Chase Manhattan Bank of Connecticut, National
Association or originated pursuant to agreements with automobile dealers who
regularly originated and sold such contracts and loans to The Chase Manhattan
Bank of Connecticut, National Association.
"Chase Direct Receivable" means a Receivable originated by
Chase directly with an Obligor without the involvement of a Dealer.
"Chase Florida Loan" means a motor vehicle retail installment
sales contract or purchase money loan serviced by Chase USA and either
originated by The Chase Manhattan Private Bank of Florida, National Association
or originated pursuant to agreements with automobile dealers who regularly
originated and sold such contracts and loans to The Chase Manhattan Private Bank
of Florida, National Association.
"Chase Lincoln Loan" means a motor vehicle retail installment
sales contract or purchase money loan serviced by Chase USA and either
originated by Chase Lincoln First Bank, National Association or originated
pursuant to agreements with automobile dealers who regularly originated and sold
such contracts and loans to Chase Lincoln First Bank, National Association.
"Chase Maryland Loan" means a motor vehicle retail installment
sales contract or purchase money loan serviced by Chase USA and either
originated by The Chase Manhattan Bank of Maryland or originated pursuant to
agreements with automobile dealers who regularly originated and sold such
contracts and loans to The Chase Manhattan Bank of Maryland.
"Class A-1 Event" shall have occurred if any Class A-1 Notes
are outstanding on the June 1998 Distribution Date (after giving effect to any
payments made on such date).
"Class A-1 Interest Rate" means 5.744% per annum.
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"Class A-1 Notes" means the Class A-1 5.744% Money Market
Asset Backed Notes, substantially in the form of Exhibit B to the Indenture.
"Class A-2 Interest Rate" means 6.100% per annum.
"Class A-2 Notes" means the Class A-2 6.100% Asset Backed
Notes, substantially in the form of Exhibit C to the Indenture.
"Class A-3 Interest Rate" means 6.350% per annum.
"Class A-3 Notes" means the Class A-3 6.350% Asset Backed
Notes, substantially in the form of Exhibit D to the Indenture.
"Class A-4 Interest Rate" means 6.500% per annum.
"Class A-4 Notes" means the Class A-4 6.500% Asset Backed
Notes, substantially in the form of Exhibit E to the Indenture.
"Class A-5 Interest Rate" means 6.600% per annum.
"Class A-5 Notes" means the Class A-5 6.600% Asset Backed
Notes, substantially in the form of Exhibit F to the Indenture.
"Clearing Agency" means an organization registered as
a "clearing agency" pursuant to Section 17A of the Exchange Act.
The initial Clearing Agency shall be The Depository Trust
Company.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other person for whom from time to time a
Clearing Agency effects book-entry transfers of securities deposited with the
Clearing Agency (including a Foreign Clearing Agency).
"Closing Date" means June 18, 1997.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collection Account" has the meaning specified in
Section 5.1(a)(i).
"Collection Period" means each calendar month beginning June
1, 1997 until Chase Manhattan Auto Owner Trust 1997-B shall terminate pursuant
to Article IX of the Trust Agreement.
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"Collections" means all collections in respect of
Receivables.
"Contract Rate" of a Receivable means the annual rate of
interest stated in such Receivable.
"Corporate Trust Office" shall mean the New York office of the
Indenture Trustee or the Wilmington, Delaware office of the Owner Trustee, as
applicable.
"Cutoff Date" means June 1, 1997.
"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 is not
a Direct Receivable.
"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 on the last day of 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 Distribution Date, the
sum of the outstanding principal balances of all
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Receivables which were 60 days or more delinquent (including Receivables, which
are not Defaulted Receivables, relating to Financed Vehicles that have been
repossessed), as of the close of business on the last day of the Collection
Period immediately preceding such Distribution Date, determined in accordance
with the Servicer's normal practices, such sum expressed as a percentage of the
Pool Balance as of the close of business on the last day of such Collection
Period.
"Delivery" when used with respect to Reserve Account
Property means:
(a)(i) with respect to "certificated securities"
within the meaning of Section 8-102(1)(a) of the Relevant UCC not held
by the initial Clearing Agency or other "instruments" within the
meaning of Section 9-105(1)(i) of the Relevant UCC, (A) physical
delivery thereof to the Indenture Trustee or its nominee or custodian
endorsed to, or registered in the name of, the Indenture Trustee or its
nominee or custodian or endorsed in blank, or, (B) with respect to a
certificated security, possession thereof by a financial intermediary
(as defined in Section 8-313(4) of the Relevant UCC) and the making by
such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Indenture
Trustee or its nominee or custodian and the sending by such financial
intermediary of a confirmation of the purchase of such certificated
security by the Indenture Trustee or its nominee or custodian, or (ii)
with respect to "certificated securities" within the meaning of Section
8-102(4)(a) of the Relevant UCC held by the initial Clearing Agency or
by a "custodian bank" within the meaning of Section 8-102(4) of the
Relevant UCC (a "Custodian Bank") or a nominee of either subject to the
control of the initial Clearing Agency, the delivery thereof to the
initial Clearing Agency or a Custodian Bank or a nominee of either
subject to the control of the initial Clearing Agency and in bearer
form or endorsed in blank by an appropriate person or registered on the
books of the issuer thereof in the name of the initial Clearing Agency
or its Custodian Bank or a nominee of either and the identification by
book-entry or otherwise on the records of the financial intermediary,
the sending of a confirmation by the financial intermediary of the
purchase by the Indenture Trustee or its nominee or custodian of such
securities and the making by such financial intermediary of entries on
its books and records identifying such certificated securities as
belonging to the Indenture Trustee or its nominee or custodian (all of
the foregoing, "Physical Property"), and such additional or alternative
procedures as may hereafter become appropriate to effect the complete
transfer of ownership of any such Reserve Account
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Property to the Indenture Trustee or its nominee or custodian,
consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any United States Securities
Entitlements that are maintained in the form of entries on the records
of the Federal Reserve System pursuant to Federal book-entry
regulations, the following procedures: entries on the records of a
member bank of the Federal Reserve System identifying such Reserve
Account Property as belonging to a Federal Reserve "depositary"
pursuant to applicable Federal regulations and the sending by such
depositary of written confirmation of the purchase of such Reserve
Account Property to the Indenture Trustee or its nominee or custodian;
the making by such depositary of entries in its books and records
identifying such Reserve Account Property as belonging to, or otherwise
subject to a security interest in favor of, the Indenture Trustee or
its nominee or custodian; and such additional or alternative procedures
as may hereafter become appropriate to effect transfer of ownership of
any such Reserve Account Property to the Indenture Trustee or its
nominee or custodian consistent with changes in applicable law or
regulations or the interpretation thereof; and
(c) with respect to any item of Reserve Account
Property that is an uncertificated security under Article 8 (or VIII,
as applicable) of the Relevant UCC and that is not governed by clause
(b) above, registration on the books and records of the issuer thereof
in the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by the
Indenture Trustee or its nominee or custodian of such uncertificated
security, the making by such financial intermediary of entries on its
books and records identifying such uncertificated certificates as
belonging to the Indenture Trustee or its nominee or custodian; and
such additional or alternative procedures as may hereafter become
appropriate to effect transfer of ownership of any such Reserve Account
Property to the Indenture Trustee or its nominee or custodian
consistent with changes in applicable law or regulations or the
interpretation thereof.
"Deposit Date" means the Business Day immediately
preceding each Distribution Date.
"Depositor" means the Seller in its capacity as
Depositor under the Trust Agreement.
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"Depository Agreements" mean, collectively, the
Certificate Depository Agreement and the Note Depository
Agreement.
"Determination Date" means the 10th calendar day of the month
(or, if such 10th calendar day is not a Business Day, the Business Day preceding
the 10th calendar day of the month) immediately succeeding the related
Collection Period.
"Direct Receivable" means either a Chase Direct Receivable or
a Receivable originated by the Seller or an Affiliate of the Seller directly
with an Obligor without the involvement of a Dealer.
"Distribution Date" means, in the case of the first Collection
Period, July 15, 1997, 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; provided, however, that solely for purposes of
determining the Note Final Scheduled Distribution Date for the Class A-1 Notes,
making payments on the Notes pursuant to Section 5.5, the Indenture and the
Notes and making withdrawals from the Reserve Account, if the Class A-1 Event
shall have occurred, the Distribution Date in the case of the June 1998
Collection Period means (x) July 10, 1998 with respect to the Class A-1 Notes,
and (y) July 15, 1998 with respect to the Class A-2 Notes, the Class A-3 Notes,
the Class A-4 Notes, the Class A-5 Notes and the Certificates.
"Eligible Deposit Account" means (a) a segregated identifiable
trust account established in the trust department of a Qualified Trust
Institution, which shall, except in the case of the Reserve Account, initially
be Chase, and may be maintained with Chase so long as Chase is a Qualified Trust
Institution; or (b) a separately identifiable deposit account established in the
deposit taking department of a Qualified Institution, which, except in the case
of the Reserve Account, may be Chase so long as Chase is a Qualified
Institution.
"ERISA" has the meaning specified in Section 11.12 of
the Trust Agreement.
"Executive Officer" means, with respect to any corporation or
bank, the Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, President, Executive Vice President, any Vice President, the Secretary
or the Treasurer of such corporation or bank, and with respect to any
partnership, any general partner thereof.
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"Euroclear Operator" means Morgan Guaranty Trust
Company of New York, Brussels, Belgium office, in its capacity
as the operator of the Euroclear system.
"Event of Default" means an event specified in Section
5.1 of the Indenture.
"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.
"Farm Credit Entitlement" means a "Security
Entitlement" as defined in 12 C.F.R. ss. 615.5450.
"FDIC" means the Federal Deposit Insurance Corporation
or any successor thereto.
"FHL Bank Entitlement": means a "Security
Entitlement" as defined in 12 C.F.R. ss. 912.1.
"FHLMC" means the Federal Home Loan Mortgage
Corporation or any successor thereto.
"Final Scheduled Maturity Date" means the last day of
the Collection Period immediately preceding the Certificate
Final Scheduled Distribution Date.
"Financed Vehicle" means, with respect to a Receivable, the
new or used automobile or light-duty truck, together with all accessions
thereto, securing an Obligor's indebtedness under such Receivable.
"Fitch" means Fitch Investors Service L.P. and its
successors and assigns.
"FNMA" means the Federal National Mortgage Association
or any successor thereto.
"Foreign Clearing Agency" means, collectively, CEDEL
and the Euroclear Operator.
"Funding Corporation Entitlement" means a "Security
Entitlement" as defined in 12 C.F.R. ss. 1511.1.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and
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grant a lien upon and a security interest in and right of set-off against,
deposit, set over and confirm pursuant to the Indenture. A Grant of the Trust
Estate or of any other agreement or instrument shall include all rights, powers
and options (but none of the obligations) of the Granting party thereunder,
including the immediate and continuing right to claim for, collect, receive and
give receipt for principal and interest payments and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" or "Holders" means, unless the context otherwise
requires, both Certificateholders and Noteholders.
"HUD Entitlement" means a "Security Entitlement" as
defined in 24 C.F.R. ss. 81.2.
"Indemnified Parties" has the meaning specified in
Section 8.2 of the Trust Agreement.
"Indenture" means the Indenture dated as of June 1, 1997,
between the Issuer and the Indenture Trustee, as the same may be amended and
supplemented from time to time.
"Indenture Trustee" means, initially, Norwest Bank
Minnesota, National Association, as Indenture Trustee under the Indenture, or
any successor Indenture Trustee under the Indenture.
"Independent" means, when used with respect to any specified
Person, that the person (a) is in fact independent of the Issuer, any other
obligor upon the Notes, the Seller and any Affiliate of any of the foregoing
persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the Seller or
any Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent engineer, appraiser or other expert appointed
by the Issuer and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state
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that the signer has read the definition of "Independent" in the Indenture 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 Distribution
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 1997-B, a
Delaware business trust, until a successor replaces it and, thereafter, means
such successor and, for purposes of any provision contained in the Indenture and
required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or
request signed in the name of the Issuer by any of its authorized officers and
delivered to the Indenture Trustee.
"July 1998 Class A-1 Note Distribution" means the amount
distributable from the Collection Account pursuant to Section 5.5 to the
Noteholders of the Class A-1 Notes on the July
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1998 Distribution Date with respect to the Class A-1 Notes if the Class A-1
Event has occurred.
"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 Moody's Investors Service, a division of Dun &
Bradstreet Corporation, and its successors and assigns.
"Net Loss Ratio" means, for any Distribution Date, an amount,
expressed as a percentage, equal to (i) the Aggregate Net Losses for such
Distribution Date divided by (ii) the average of the Pool Balances on each of
the related Settlement Dates 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, a Class A-4 Note or a Class A-5 Note.
"Note Depository Agreement" means the agreement among the
Issuer, the Indenture Trustee, Chase, as agent for The Depository Trust Company
and The Depository Trust Company, as the initial Clearing Agency, dated the
Closing Date, relating to the Notes, substantially in the form of Exhibit G 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(a)(ii).
"Note Final Scheduled Distribution Date" means for (a)
the Class A-1 Notes, the July 1998 Distribution Date, (b) the
Class A-2 Notes, the January 2000 Distribution Date, (c) the Class A-3 Notes,
the February 2001 Distribution Date, (d) the Class A-4 Notes, the October 2001
Distribution Date and (e) the Class A-5 Notes, the March 2002 Distribution Date.
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"Note Owner" means, with respect to a Book-Entry Note, the
person who is the owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency or Foreign Clearing Agency, or on the books of a direct or
indirect Clearing Agency Participant.
"Note Pool Factor" for each class of Notes as of the close of
business on a Distribution Date means an eight-digit decimal figure equal to the
Outstanding Amount of such class of Notes divided by the Outstanding Amount as
of the Closing Date of such class of Notes. The Note Pool Factor for each class
of Notes will be 1.00000000 as of the Cutoff Date; thereafter, the Note Pool
Factor for each class of Notes will decline to reflect reductions in the
Outstanding Amount of such class of Notes.
"Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Noteholders' Distributable Amount" means, for any
Distribution 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
Distribution Date for any class of Notes, the excess of (x) the Noteholders'
Interest Distributable Amount for the preceding Distribution Date for such class
of Notes, over (y) the amount in respect of interest actually deposited in the
Note Distribution Account on such preceding Distribution 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 Distribution Date, to the extent
permitted by law, at the applicable Interest Rate from such preceding
Distribution Date through the current Distribution Date.
"Noteholders' Interest Distributable Amount" means, for any
Distribution Date for any class of Notes, the sum of (x) the Noteholders'
Monthly Interest Distributable Amount for such class of Notes for such
Distribution Date and (y) the Noteholders' Interest Carryover Shortfall for such
Distribution
Date for such class of Notes.
"Noteholders' Monthly Interest Distributable Amount" means,
for any Distribution Date for each class of Notes, one month's interest (or, in
the case of the first Distribution Date, interest accrued from and including the
Closing Date to but excluding such Distribution Date) at the related Interest
Rate on the Outstanding Amount of the Notes of such class on such Distribution
Date (or, in the case of the first Distribution Date, on the Closing Date).
Interest for purposes of this definition (i) on the Class A-1 Notes shall be
computed on the
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basis of a 360-day year for the actual number of days elapsed (which will be 25
days for the July 1998 Distribution Date for the Class A-1 Notes) and (ii) on
the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes and the Class A-5
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 Distribution Date prior to the Distribution Date on which the Notes have
been paid in full, 100% of the Principal Distribution Amount; and for the
Distribution Date on which the Notes are paid in full, the portion of the
Principal Distribution Amount required to pay the Notes in full.
"Noteholders' Principal Carryover Shortfall" means for any
Distribution Date, the excess of (x) the Noteholders' Principal Distributable
Amount for the preceding Distribution Date over (y) the amount in respect of
principal that was actually deposited in the Note Distribution Account on such
Distribution Date.
"Noteholders' Principal Distributable Amount" means, for any
Distribution Date, the sum of (i) the Noteholders' Monthly Principal
Distributable Amount for such Distribution Date and (ii) the Noteholders'
Principal Carryover Shortfall for such Distribution Date; provided that the
Noteholders' Principal Distributable Amount shall not exceed the Outstanding
Amount of the Notes. In addition, on the Note Final Scheduled Distribution Date
of each class of Notes, the principal required to be deposited in the Note
Distribution Account will include the amount necessary (after giving effect to
the other amounts to be deposited in the Note Distribution Account on such
Distribution Date and allocable to principal) to reduce the Outstanding Amount
of such class of Notes to zero.
"Note Register" and "Note Registrar" have the meanings
specified in Section 2.4 of the Indenture.
"Obligor" on a Receivable means the purchaser or the
co-purchasers of the Financed Vehicle purchased in part or in whole by the
execution and delivery of such Receivable or any other Person who owes or may be
liable for payments under such Receivable.
"Officer's Certificate" means a certificate signed by the
chairman of the board, the president, the treasurer, the controller, any
executive or senior vice president or any vice 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
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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 5%.
"Original Pool Balance" shall be $953,148,275.79.
"Outstanding" means, when used with respect to Notes, as of
the 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 redeemed, notice of such redemption has been duly given
pursuant to the Indenture or provision therefor, satisfactory
to the Indenture Trustee, has been made); and
(c) Notes in exchange for or in lieu of other Notes
which have been authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Indenture Trustee
is presented that any such Notes are held by a bona fide
purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Notes owned by
the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any
of the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Notes that an Authorized Officer of the Indenture Trustee either
actually knows to be so owned or has received written notice that such Note is
so owned shall be so disregarded. Notes so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with respect
to such Notes and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Seller or any Affiliate of any of the foregoing Persons.
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"Outstanding Amount" means, when used with respect to Notes,
as of any date of determination, the aggregate principal amount of all Notes, or
a class of Notes, as applicable, Outstanding as of such date.
"Owner Trust Estate" means all right, title and interest of
the Issuer in and to the property and rights assigned to the Issuer pursuant to
Article II of this Agreement, all funds on deposit from time to time in the
Trust Accounts (other than the Note Distribution Account) and the Certificate
Distribution Account and all other property of Issuer from time to time,
including any rights of the Owner Trustee and the Issuer pursuant to this
Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
under the Trust Agreement, and any successor Owner Trustee thereunder.
"Paying Agent" means: (a) when used in the Indenture or
otherwise with respect to the Notes, the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 of the Indenture and is authorized by the Indenture Trustee to make
the payments to and distributions from the Collection Account and the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer; and (b) when used in the Trust Agreement or otherwise
with respect to the Certificates, the Owner Trustee or any other paying agent or
co-paying agent appointed pursuant to Section 3.9 of the Trust Agreement, and in
the case of the Indenture with respect to the Notes, and the Trust Agreement
with respect to the Certificates, such Paying Agent shall initially be the
corporate trust office of Chase.
"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,
"F-1+" or "AAA" by Fitch (if rated by Fitch) and "P-1+" or Aaa
by Moody's;
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(iii) commercial paper which is then rated P-1 by
Moody's, "F-1+" 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 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, "F-1+" 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, "AAA" by Fitch (if rated by Fitch) and "A-1+" by
Standard & Poor's or the long-term unsecured debt of which are
rated "Aaa" by Moody's, "AAA" by Fitch (if rated by Fitch) and
"AAA" by Standard & Poor's;
(vii) repurchase obligations with respect to any
security described in clauses (i) or (ii) herein or any other
security issued or guaranteed by the FHLMC, FNMA or any other
agency or instrumentality of the United States of America
which is backed by the full faith and credit of the United
States of America, in either case entered into with a federal
agency or a depository institution or trust company (acting as
principal) described in (iv) above;
(viii) investments in money market funds, which funds
(A) are not subject to any sales, load or other similar
charge; and (B) are rated at least "AAAM" or "AAAM-G" by
Standard & Poor's, "AAAV-1+" by Fitch (if rated by Fitch) and
Aaa by Moody's;
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(ix) such other investments where either (A) the
short-term unsecured debt or deposits of the obligor on such
investments are rated "A-1+" by Standard & Poor's, "F-1" by
Fitch (if rated by Fitch) and P-1 by Moody's; and
(x) any other obligation or security satisfying
the Rating Agency Condition.
Permitted Investments may include money market mutual funds (so long as such
fund has the ratings specified in clause (viii) hereof), including, without
limitation, the VISTA U.S. Government Money Market Fund or any other fund for
which Chase, the Indenture Trustee or an Affiliate thereof serves as an
investment advisor, administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (i) Chase, Norwest Bank Minnesota,
National Association, Wilmington Trust Company or an Affiliate thereof charges
and collects fees and expenses from such funds for services rendered, (ii)
Chase, Norwest Bank Minnesota, National Association, Wilmington Trust Company or
an Affiliate thereof charges and collects fees and expenses for services
rendered pursuant to this Agreement, and (iii) services performed for such funds
and pursuant to this Agreement may converge at any time. The Indenture Trustee
specifically authorizes Chase, Norwest Bank Minnesota, National Association,
Wilmington Trust Company or an Affiliate thereof to charge and collect all fees
and expenses from such funds for services rendered to such funds (but not to
exceed investment earnings), in addition to any fees and expenses Chase, Norwest
Bank Minnesota, National Association, or Wilmington Trust Company, as
applicable, may charge and collect for services rendered pursuant to this
Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
"Physical Property" has the meaning specified in the
definition of "Delivery" above.
"Pool Balance" as of any date of determination means the
aggregate Principal Balance of the Receivables, calculated as of the close of
business on such date.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.5 of the Indenture in lieu of a
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mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Principal Balance" of a Receivable, as of any date of
determination, means the Amount Financed minus that portion of all payments
received on or prior to such date allocable to principal. The Principal Balance
of a Defaulted Receivable or a Repurchased Receivable shall be deemed to be
zero, in each case, as of such date.
"Principal Distribution Amount" means, for any
Distribution Date, the sum of (i) Available Principal and (ii)
Aggregate Net Losses.
"Proceeding" means any suit in equity, action or law
or other judicial or administrative proceeding.
"Qualified Institution" means a depository institution
organized under the laws of the United States of America or any State thereof or
incorporated under the laws of a foreign jurisdiction with a branch or agency
located in the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities which at all
times has the Required Deposit Rating and, in the case of any such institution
organized under the laws of the United States of America, whose deposits are
insured by the FDIC.
"Qualified Trust Institution" means an institution organized
under the laws of the United States of America or any State thereof or
incorporated under the laws of a foreign jurisdiction with a branch or agency
located in the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities which at all
times (i) is authorized under such laws to act as a trustee or in any other
fiduciary capacity, (ii) has not less than one billion dollars in assets under
fiduciary management, and (iii) has a long term deposits rating of not less than
"BBB-" by Standard & Poor's, Baa3 by Moody's and "BBB-" by Fitch (if rated by
Fitch).
"Rating Agency" means any of Standard & Poor's,
Moody's or Fitch.
"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.
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"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 close of business on the Cutoff Date), which Receivable shall be identified
on Schedule A to this Agreement.
"Receivable Files" means the documents specified in
Section 3.3.
"Receivables Pool" means the pool of Receivables
included in the Trust Estate.
"Record Date" means, with respect to any Distribution Date,
the Business Day prior to such Distribution Date unless Definitive Notes or
Definitive Certificates are issued, in which case, Record Date, with respect to
such Definitive Notes or Definitive Certificates, as applicable, shall mean the
last day of the immediately preceding calendar month.
"Redemption Date" means in the case of a redemption of the
Notes pursuant to Section 10.1 of the Indenture, the Distribution Date specified
by the Servicer pursuant to such Section 10.1.
"Redemption Price" means (a) in the case of a redemption of
the Notes pursuant to Section 10.1 of the Indenture, an amount equal to the
Outstanding Amount of the Notes plus accrued and unpaid interest thereon to but
excluding the Redemption Date.
"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 "F-1+" (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.
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"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.6.
"Reserve Account Initial Deposit" means an amount
equal to $14,297,224.14.
"Reserve Account Property" means all amounts and investments
held from time to time in the Reserve Account (whether in the form of deposit
accounts, Physical Property, book-entry securities, uncertificated securities or
otherwise), including the Reserve Account Initial Deposit and all proceeds of
the foregoing.
"Reserve Account Transfer Amount" means, for any Distribution
Date, an amount equal to the lesser of (a) the amount of cash or other
immediately available funds on deposit in the Reserve Account on such
Distribution Date (before giving effect to any withdrawals therefrom relating to
such Distribution Date) 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 Distribution 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).
"Sallie Mae Entitlement" means a "Security
Entitlement" as defined in 31 C.F.R. ss. 354.1.
"Securities Act" means the Securities Act of 1933, as
amended.
"Seller" means Chase Manhattan Bank USA, N.A., a national
banking association with its principal executive offices in Wilmington,
Delaware, in its capacity as the seller of the Receivables under this Agreement,
and each successor to Chase Manhattan Bank USA, N.A. (in the same capacity)
pursuant to Section 6.3.
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"Servicer" means Chase Manhattan Bank USA, N.A., a national
banking association with its principal offices in Wilmington, Delaware, in its
capacity as the servicer of the Receivables under this Agreement, and each
successor to Chase Manhattan Bank USA, N.A. (in the same capacity) pursuant to
Section 7.3, 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 Distribution Date, the last day of
the second Collection Period preceding the Collection Period in which such
Distribution Date occurs.
"Specified Reserve Account Balance" with respect to any
Distribution Date, means 3.00% of the Pool Balance as of the related Settlement
Date, but in any event will not be less than the lesser of (i) $7,148,612.07 and
(ii) the sum of (A) such Pool Balance plus (B) an amount sufficient to pay
interest on each class of Notes and the Certificates through its related Note
Final Scheduled Distribution Date or the Certificate Final Scheduled
Distribution Date, as applicable, at a rate equal to the sum of (x) the related
Interest Rate or the Certificate Rate plus (y) the Servicing Fee Rate; provided
that the Specified Reserve Account Balance will be calculated using a percentage
of 6.00% for any Distribution Date (beginning with the September 1997
Distribution Date) for which the Average Net Loss Ratio exceeds 1.25% or the
Average Delinquency Percentage exceeds 1.25%. Upon written notification to the
Indenture Trustee by the Seller, the Specified Reserve Account Balance may be
reduced to a lesser amount as determined by the Seller so long as such reduction
satisfies the Rating Agency Condition.
"Standard & Poor's" means Standard & Poor's Ratings Services,
and its successors and assigns.
"Total Distribution Amount" means, for any Distribution Date,
the sum of Available Interest and Available Principal for
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such Distribution Date. The Total Distribution Amount on any Distribution Date
shall exclude all payments and proceeds (including any Liquidation Proceeds and
any amounts received from Dealers with respect to Receivables) of (i) any
Receivables the Repurchase Amount of which has been included in the Total
Distribution Amount for a prior Distribution Date and (ii) Investment Earnings
and any Late Fees.
"Treasury Entitlement" means a "Security Entitlement"
as defined in 31 C.F.R. ss. 357.2.
"Treasury Regulations" means, the treasury regulations
promulgated under Code.
"Trust Accounts" means, collectively, the Collection
Account, the Note Distribution Account and the Reserve Account.
"Trust Agreement" means the Trust Agreement dated as of June
1, 1997, between the Seller and the Owner Trustee, as the same may be amended
and supplemented from time to time.
"Trust Estate" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders (including all
property and interests Granted to the Indenture Trustee), including all proceeds
thereof and the Reserve Account.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force on the date hereof, unless otherwise specifically provided.
"United States Securities Entitlement" means a
Treasury Entitlement, a HUD Entitlement, a FHL Bank Entitlement, a
Funding Corporation Entitlement, a Farm Credit Entitlement or a
Sallie Mae Entitlement.
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
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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; Allocations.
All allocations of payments to principal and interest and
determinations of periodic charges and the like on the Receivables shall be
based on a year with the actual number of days in such year and twelve months
with the actual number of days in each such month. Each payment on a Receivable
shall be applied first to the amount of interest accrued on such Receivable to
the date of receipt, then to reduce the scheduled principal amount outstanding
on the Receivable to the extent of the remaining scheduled payment and then to
any outstanding fees and Late Fees under the terms of the Receivable. Amounts
paid by the Seller or the Servicer in respect of Repurchased Receivables shall
be allocated first to any Accrued Interest and then to the Principal Balance of
the related Receivable.
SECTION 1.4. Calculations Relating to the July 1998
Distribution Date. If the Class A-1 Event has occurred, the calculations
hereunder for the July 1998 Distribution Dates with respect to the Total
Distribution Amount, the Noteholders' Distributable Amount, the
Certificateholders' Distributable Amount, the Specified Reserve Account Balance
and the Reserve Account Transfer Amount, and the respective components thereof,
shall be calculated as if there were a single July 1998 Distribution Date.
Amounts hereunder will be distributed on the respective July 1998 Distribution
Dates in accordance with Section 5.5(d).
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1. Conveyance of Receivables. In consideration of
the Issuer's delivery of the Notes and the Certificates to and upon the order of
the Seller, the Seller does hereby sell, transfer, assign, and otherwise convey
to the Issuer, without recourse (subject to the Seller's obligations herein):
(i) all right, title, and interest of the Seller
in, to and under the Receivables listed in Schedule A hereto,
all proceeds thereof and all amounts and monies received
thereon on or after the Cutoff Date (including proceeds of the
repurchase of Receivables by the Seller pursuant to Section
3.2 or the purchase of Receivables by the Servicer pursuant to
Section 4.6 or 9.1), together with the interest of the Seller
in the security interests in the Financed Vehicles granted by
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the Obligors pursuant to the Receivables and in any
repossessed Financed Vehicles;
(ii) all right, title and interest of the Seller in
any Liquidation Proceeds and in any proceeds of any extended
warranties, theft and physical damage, credit life or credit
disability policies relating to the Financed Vehicles or the
Obligors;
(iii) all right, title and interest of the Seller
in any proceeds from Dealer repurchase obligations
relating to the Receivables; and
(iv) all proceeds (as defined in the Relevant
UCC) of the foregoing.
In connection with such sale, the Seller agrees to record and
file, at its own expense, financing statements (and continuation statements with
respect to such financing statements when applicable) with respect to the
Receivables for the sale of accounts and chattel paper meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect the sale and assignment of the Receivables to the Issuer.
It is the intention of the Seller and the Issuer that the
assignment and transfer herein contemplated constitute a sale of the
Receivables, conveying good title thereto free and clear of any liens and
encumbrances, from the Seller to the Issuer and the Receivables not be part of
the Seller's estate in the event of an insolvency. In the event that such
conveyance is deemed to be a pledge to secure a loan, the Seller hereby grants
to the Issuer a first priority perfected security interest in all of the
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 Orrick, Herrington & Sutcliffe LLP, 666 Fifth
Avenue, New York, New York on the Closing Date, simultaneously with the closing
of the transactions contemplated by the underwriting agreements related to the
Notes and the Certificates and the other Basic Documents. Upon the acceptance by
the Seller of the Notes and the Certificates, the
ownership of each Receivable and the contents of the related Receivable File
will be vested in the Issuer, subject only to the lien of the Indenture.
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ARTICLE III
THE RECEIVABLES
SECTION 3.1. Representations and Warranties of Seller;
Conditions Relating to Receivables.
(a) The Seller makes the following representations and
warranties as to the Receivables on which the Issuer shall rely in acquiring the
Receivables. Such representations and warranties shall speak as of the Cutoff
Date unless otherwise specified, but shall survive the sale, transfer, and
assignment of the Receivables to the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(i) Schedule of Receivables. The information set
forth in Schedule A hereto with respect to each Receivable is
true and correct in all material respects, and no selection
procedures materially adverse to the Holders has been utilized
in selecting the Receivables from all receivables owned by the
Seller which meet the selection criteria specified herein.
(ii) No Sale or Transfer. No Receivable has been
sold, transferred, assigned or pledged by the Seller
to any Person other than the Issuer.
(iii) Good Title. Immediately prior to the transfer
and assignment of the Receivables to the Issuer herein
contemplated, the Seller has good and marketable title to each
Receivable free and clear of all Liens and rights of others;
and, immediately upon the transfer thereof, the Issuer has
either (i) good and marketable title to each Receivable, free
and clear of all Liens and rights of others, other than the
Lien of the Indenture Trustee under the Indenture, and the
transfer has been perfected under applicable law or (ii) a
first priority perfected security interest in each Receivable
and the proceeds thereof.
(b) Each Receivable satisfies the following conditions as of
the Cutoff Date unless otherwise specified and such conditions shall survive the
sale, transfer and assignment of the Receivables to the Issuer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture.
(i) Acquisition. Each Receivable is either a
Dealer Receivable acquired directly or indirectly from or
made through a Dealer located in the United States
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(including the District of Columbia) or is a Direct
Receivable;
(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 6 months nor greater than 72 months
and (A) in the case of each Receivable secured by new Financed
Vehicles, had an original maturity of at least 12 months and not more
than 84 months, or (B) in the case of each Receivable secured by used
Financed Vehicles, had an original maturity of at least 12 months and
not more than 72 months.
(iv) Contract Rate. Each Receivable is a
fully-amortizing fixed rate simple interest contract that provides for
level scheduled monthly payments over its remaining term, and has a
Contract Rate of at least 7.75% and not more than 20.00% and is not
secured by any interest in real estate;
(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 as of the Cutoff Date;
(vii) No Overdue Payments. Each Receivable had no
payment that was more than 30 days past due;
(viii) [Reserved].
(ix) Remaining Principal Balance. Each
Receivable had a remaining principal balance of at least $2,000 and
not greater than $100,000;
(x) No Force Placed Insurance. As of the Cutoff
Date, 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;
(xi) Receivable Files. The Receivable Files
shall be kept at one or more of the locations specified in
Schedule B hereto;
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(xii) Characteristics of Receivables. Each Receivable
(a) (i) in the case of a Dealer Receivable, has been originated in the
form of a credit sales transaction by a Dealer or a purchase money loan
through a Dealer located in one of the States of the United States
(including the District of Columbia) for the retail financing of a
Financed Vehicle or (ii) in the case of a Direct Receivable, has been
originated by Chase or an affiliate thereof in the form of a secured
loan for the retail financing of a Financed Vehicle, and, in each case,
has been fully and properly executed by the parties thereto, (b) (i) in
the case of a Dealer Receivable, if a retail installment sales
contract, has been purchased by the Seller from the originating Dealer
or an affiliate of the Seller, has been validly assigned by such Dealer
or an affiliate of the Seller to the Seller in accordance with its
terms or (ii) in the case of a Chase Direct Receivable, has been
purchased by the Seller from Chase, and has been validly assigned by
Chase to the Seller; (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;
(xiii) 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
Magnuson-Moss Warranty Act, Federal Reserve Board Regulations B and Z,
state adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and any other consumer credit, equal opportunity,
and disclosure laws applicable to such Receivable and sale thereof;
(xiv) Binding Obligation. Each Receivable constitutes
the legal, valid, and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in all material respects in
accordance with its terms, subject, as to enforcement, to applicable
bankruptcy, insolvency, reorganization, liquidation and other similar
laws and equitable principles relating to or affecting the enforcement
of creditors' rights;
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(xv) No Government Obligor. Each Receivable is not
due from the United States of America or any State or from any agency,
department, instrumentality or political subdivision of the United
States of America or any State or local municipality, and each
Receivable is not due from a business except to the extent that such
Receivable has a personal guaranty;
(xvi) Security Interest in Financed Vehicle.
Immediately prior to the sale and assignment thereof to the Issuer as
herein contemplated, each Receivable was secured by a validly perfected
first priority security interest in the 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 (subject to administrative delays and clerical errors on the
part of the applicable governmental agency and to any statutory or
other lien arising by operation of law after the Closing Date which is
prior to such security interest);
(xvii) Receivables in Force. No Receivable has
been satisfied, subordinated, or rescinded, nor has any
Financed Vehicle been released from the Lien granted by the related
Receivable, in whole or in part;
(xviii) No Waiver. No provision of a Receivable has
been waived in such a manner that such Receivable fails either to meet
all of the representations and warranties made by the Seller herein
with respect thereto or to meet all of the conditions with respect
thereto pursuant to this Section 3.1(b);
(xix) No Amendments. No Receivable has been amended
except pursuant to either instruments included in the Receivable Files
or instruments to be included in the 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);
(xx) 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
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being asserted or threatened, with respect to any
Receivable;
(xxi) No Liens. The Seller had no knowledge of any
Liens or claims that have been filed, including liens for work, labor,
materials or unpaid taxes relating to a Financed Vehicle, that would be
liens prior to, or equal or coordinate with, the lien granted by the
Receivable;
(xxii) 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;
(xxiii) Insurance. Each Receivable requires that
the Obligor thereunder maintain comprehensive, liability,
theft and physical damage insurance covering the related
Financed Vehicle;
(xxiv) Lawful Assignment. No Receivable has been
originated in, or is subject to the laws of, any
jurisdiction under which the sale, transfer, and assignment
of such Receivable under this Agreement or pursuant to
transfers of the Certificates or the Notes is unlawful,
void or voidable;
(xxv) All Filings Made. No filings (other than
filings under the Relevant UCC which have been made) or
other actions are necessary in any jurisdiction to give the
Issuer a first perfected security interest in the
Receivables;
(xxvi) One Original. There is no more than one
original executed copy of each Receivable which,
immediately prior to the delivery thereof to the Servicer (as
custodian for the Issuer), was in the possession of the Seller;
(xxvii) Excluded Loans. Each Receivable (A) is not a
Chase Connecticut Loan, Chase Florida Loan, Chase Lincoln Loan, Chase
Maryland Loan, a Receivable whose related Obligor resides in the State
of Alabama (in the case of a Direct Receivable) or a Receivable
originated by or through a Dealer located in the State of Alabama (in
the case of a Dealer Receivable), and (B) has not been the subject of a
previous securitization; and
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(xxviii) Account Number. Each Dealer Receivable has been
assigned an account number that corresponds to the number assigned to
the Dealer from or through whom such Receivable was acquired, and each
Direct Receivable has been assigned an account number that corresponds
to the number assigned to the applicable originating branch (or the
"loan- by-phone" line).
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 of either any breach of the Seller's representations and
warranties set forth in Section 3.1(a) or the failure of any Receivable to
satisfy any of the conditions set forth in Section 3.1(b) which materially and
adversely affects the Holders' interest in any Receivable. Unless the breach or
failed condition shall have been cured by the last day of the Collection Period
following the Collection Period in which such discovery occurred (or, at the
Seller's option, the last day of the Collection Period in which such discovery
occurred), the Seller shall repurchase any Receivable the Holders' interest in
which was materially and adversely affected by the breach or failed condition,
as of such last day. Notwithstanding anything herein to the contrary, with
respect to the breach of a representation and warranty in Section
3.1(b)(xxviii), the Seller shall repurchase such Receivable regardless of its
effect on the interest of the Holders in such Receivable or whether notice
thereof has been delivered by any of the parties thereto, and the repurchase of
any such Receivable shall take place at any time as is administratively
convenient for the Seller and the Servicer. In consideration of the repurchase
of a Receivable, the Seller shall remit the Repurchase Amount of such Receivable
as of such last day (less any Liquidation Proceeds deposited, or to be
deposited, by the Servicer in the Collection Account with respect to such
Receivable pursuant to Section 4.3) in the manner specified in Section 5.4. The
sole remedy of the Issuer, the 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. 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.
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SECTION 3.3. Custody of Receivable Files. To assure
uniform quality in servicing the Receivables and to reduce
administrative costs, the Issuer, upon the execution and delivery of this
Agreement, agrees to have the Servicer act as custodian of the following
documents or instruments (the "Receivable Files") which are hereby
constructively delivered to the Issuer with respect to each Receivable:
(i) The original executed Receivable;
(ii) Any and all other documents or records that the
Seller or the Servicer, as the case may be, shall keep on
file, in accordance with its customary procedures, relating to
a Receivable, an Obligor, or a Financed Vehicle.
The Servicer hereby agrees to act as custodian and as agent
for the Issuer hereunder. The Servicer acknowledges that it holds the documents
and instruments relating to the Receivables for the benefit of the Issuer. The
Issuer shall have no responsibility to monitor the Servicer's performance as
custodian and shall have no liability in connection with the Servicer's
performance of such duties hereunder.
SECTION 3.4. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian,
shall hold the Receivable Files on behalf of the Issuer, and maintain such
accurate and complete accounts, records (either original execution documents or
copies of such originally executed documents shall be sufficient), and computer
systems pertaining to the Receivables as shall enable the Issuer to comply with
its obligations pursuant to this Agreement. In performing its duties as
custodian, the Servicer shall act with reasonable care, using that degree of
skill and attention that the Servicer exercises with respect to the receivable
files of comparable new or used automobile receivables that the Servicer
services for itself. The Servicer shall conduct, or cause to be conducted,
periodic audits of the files of all receivables owned or serviced by the
Servicer which shall include the Receivable Files held by it under this
Agreement and the related accounts, records, and computer systems, in such a
manner as shall enable the Owner Trustee or the Indenture Trustee to identify
all Receivable Files and such related accounts, records and computer systems and
to verify, if the Owner Trustee or the Indenture Trustee so elects, the accuracy
of the Servicer's recordkeeping.
The Servicer shall promptly report to the Owner Trustee or the Indenture
Trustee any failure on its part to hold the Receivable Files and maintain its
accounts, records, and computer systems as herein provided, and promptly take
appropriate action to remedy any such failure.
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(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of the locations specified in Schedule B to
this Agreement, or at such other location as shall be specified to the Owner
Trustee and the Indenture Trustee by 30 days' prior written notice. The Servicer
shall make available to the Owner Trustee, the Indenture Trustee or their
respective duly authorized representatives, attorneys, or auditors, the
Receivable Files and the related accounts, records, and computer systems
maintained by the Servicer at such times during normal operating hours as the
Owner Trustee or Indenture Trustee shall reasonably instruct which does not
unreasonably interfere with the Servicer's normal operations or customer or
employee relations.
(c) Release of Documents. Upon instruction from the Indenture
Trustee (or, if the Notes have been paid in full, from the Owner Trustee), the
Servicer shall release any document in the Receivable Files to the Indenture
Trustee or Owner Trustee, or their respective agents or designees, as the case
may be, at such place or places as such Person may reasonably designate as soon
as reasonably practicable to the extent it does not unreasonably interfere with
the Servicer's normal operations or customer or employee relations. The Servicer
shall not be responsible for any loss occasioned by the failure of the Owner
Trustee or Indenture Trustee, or their respective agents or designees, to return
any document or any delay in doing so.
(d) Title to Receivables. The Servicer agrees that, in respect
of any Receivable held by it as custodian hereunder, (i) the Servicer will not
at any time have or in any way attempt to assert any interest in such Receivable
or the related Receivable File, other than solely for the purpose of collecting
or enforcing the Receivable for the benefit of the Issuer and (ii) the related
Receivable File shall at all times be property of the Issuer.
SECTION 3.5. Instructions; Authority to Act. The Servicer
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of written instructions signed by an
Authorized Officer of the Indenture Trustee (or, if the Notes have been paid in
full, of the Owner Trustee). A certified copy of a by-law or of a resolution of
the Board of Directors of the Owner Trustee or the Indenture Trustee 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.
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,
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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 wilful
misfeasance, bad faith, or negligence of the Issuer, the Owner Trustee or the
Indenture Trustee.
SECTION 3.7. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section 3.7
or until this Agreement ----------- shall be terminated. If the Servicer shall
resign as Servicer under Section 7.5 or if all of the rights and obligations of
the ----------- Servicer shall have been terminated under Section 8.1, the
- ----------- appointment of the Servicer as custodian may be terminated by the
Indenture Trustee or by the Holders of Notes evidencing not less than a majority
of the aggregate Outstanding Amount of the Notes (or, if there are no Notes
outstanding, the Holders of Certificates representing not less than a majority
of the Certificate Balance), in the same manner as the Indenture Trustee or such
Holders may terminate the rights and obligations of the Servicer under Section
8.1. As soon as practicable after any ------------ termination of such
appointment, the Servicer shall, at its expense, deliver the Receivable Files to
the Issuer or the Issuer's agent at such place or places as the Issuer may
reasonably designate. Notwithstanding the termination of the Servicer as
custodian, the Owner Trustee agrees that upon any such termination, the Issuer
shall provide, or cause its agent to provide, access to the Receivable Files to
the Servicer for the purpose of carrying out its duties and responsibilities
with respect to the servicing of the Receivables hereunder.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1. Duties of Servicer. The Servicer is hereby
authorized to act as agent for the Issuer and in such capacity shall manage,
service, administer and make collections on the Receivables (other than
Repurchased Receivables) with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to comparable new or used
automobile receivables that it services for itself. The Servicer's duties shall
include collection and posting of all payments, responding to inquiries by
Obligors or by federal, state, or local governmental authorities with respect to
the Receivables, investigating delinquencies, reporting tax
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information to Obligors in accordance with its customary practices, advancing
costs of disposition of defaults, monitoring Receivables in cases of Obligor
defaults, accounting for collections, furnishing monthly and annual statements
to the Indenture Trustee with respect to distributions. The Servicer shall
follow its customary standards, policies, and procedures in performing its
duties as Servicer hereunder; provided that the Servicer shall be permitted to
take or to refrain from taking any action not specified in this Agreement with
respect to servicing the Receivables if such action or inaction would not
contravene any material term of this Agreement or materially adversely affect
the interests of Holders. Without limiting the generality of the foregoing, the
Servicer shall be authorized and empowered by the Issuer to execute and deliver,
on behalf of itself, the Owner Trustee, the 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, 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,
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subject to the foregoing, to any reduction of the amount of any scheduled
payment on a Receivable. In the event that at the end of the scheduled term of
any Receivable, the outstanding principal amount thereof is such that the final
payment to be made by the related Obligor is larger than the regularly scheduled
payment of principal and interest made by such Obligor, the Servicer may permit
such Obligor to pay such remaining principal amount in more than one payment of
principal and interest; provided, however, that the last such payment shall be
due on or prior to the Final Scheduled Maturity Date.
(b) Notwithstanding anything in this Agreement to the
contrary, the Servicer may refinance any Receivable by accepting a new
promissory note from the related Obligor and applying the proceeds of such
refinancing to pay all obligations in full of such Obligor under such
Receivable. The receivable created by the refinancing shall not be property of
the Issuer.
SECTION 4.3. Realization Upon Receivables. The Servicer shall
use reasonable efforts, consistent with its customary servicing procedures, to
repossess or otherwise take possession of the Financed Vehicle securing any
Receivable which the Servicer shall have determined to be a Defaulted Receivable
or otherwise. The Servicer shall follow such customary and usual practices and
procedures as it shall deem necessary or advisable in its servicing of new or
used automobile receivables, which may include reasonable efforts to realize
upon any recourse to Dealers, consigning the Financed Vehicle to a Dealer for
resale and selling the Financed Vehicle at public or private sale. The Servicer
shall be entitled to recover from proceeds all reasonable expenses incurred by
it in the course of converting the Financed Vehicle into cash proceeds. The
Liquidation Proceeds 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
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interest of the Seller created in any Financed Vehicle which secures a
Receivable. The Owner Trustee, on behalf of the Issuer, and the Indenture
Trustee hereby authorize the Servicer, and the Servicer hereby agrees, to take
such steps as are necessary to re-perfect such security interest in the event of
the relocation of a Financed Vehicle or for any other reason, in either case,
when the Servicer has knowledge of the need for such re-perfection. In the event
that the assignment of a Receivable to the Issuer and by the Issuer to the
Indenture Trustee pursuant to the Indenture is insufficient without a notation
on the related Financed Vehicle's certificate of title, or without fulfilling
any additional administrative requirements under the laws of the State in which
the Financed Vehicle is located, to grant to the Indenture Trustee a perfected
security interest in the related Financed Vehicle, the Seller and Servicer
hereby agree that the Seller's listing as the secured party on the certificate
of title is deemed to be in its capacity as agent of the Indenture Trustee and
the Servicer further agrees to hold such certificate of title as the Indenture
Trustee's agent and custodian; provided, however, that the Servicer shall not,
nor shall the Owner Trustee, the Indenture Trustee or Holders have the right to
require that the Servicer, make any such notation on the related Financed
Vehicles' certificate of title or fulfill any such additional administrative
requirement of the laws of the State in which a Financed Vehicle is located.
SECTION 4.5. Covenants of Servicer. The Servicer hereby makes
the following covenants on which the Issuer will rely in accepting the
Receivables:
(i) Security Interest to Remain in Force. The
Financed Vehicle securing each Receivable shall not be
released from the security interest granted by the
Receivable in whole or in part except if such Financed
Vehicle is substituted in whole by the manufacturer,
dealer or seller as a result of mechanical defects or
a total loss of the Financed Vehicle because of
accident or theft or as otherwise contemplated herein;
(ii) No Impairment. The Servicer shall not
impair the rights of the Issuer, the Indenture Trustee or
any Holder in the Receivables; and
(iii) Extensions; Defaulted Receivables. The Servicer
shall not increase the number of payments under a Receivable,
nor increase the Amount Financed under a Receivable, nor
extend or forgive payments on a Receivable, except as provided
in Section 4.2.
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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 Distribution Date pursuant to Section 5.5
and shall equal the sum of (i) the product of one-twelfth of the Servicing Fee
Rate and the Pool Balance as of the related Settlement Date and (ii) Late Fees
received from Obligors during such Collection Period. In addition, as part of
the Servicing Fee, the Servicer shall be entitled to receive on each
Distribution Date Investment Earnings when and as paid on amounts on deposit in
the Collection Account or earned on collections pending deposit in the
Collection Account. The Servicer shall be required to pay from its own account
all expenses incurred by it in connection with its activities hereunder
(including fees and disbursements of independent accountants and auditors, taxes
imposed on the Servicer, and other costs incurred in connection with
administering and servicing the Receivables) and the fees and disbursements of
the Issuer, the Administrator, the Owner Trustee, the Indenture Trustee, the
Owner Trustee's and the Indenture Trustee's counsel, the Paying Agent, the
Authenticating Agent, the Note Registrar and the Certificate Registrar except
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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 hereto, for the Collection
Period preceding such Determination Date, containing all information necessary
to make the distributions pursuant to Section 5.5, and all information necessary
for the Paying Agent to send statements to Holders pursuant to Section 5.8;
provided, however, that if the Class A-1 Event has occurred, the Servicer shall
deliver the Servicer's Certificate for the June 1998 Collection Period to such
parties no later than July 8, 1998. 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, 1998, 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,
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specifying each such default known to such officer and the nature and status
thereof.
(b) The Servicer shall deliver to the Indenture Trustee, the
Owner Trustee and each Rating Agency promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, an Officer's
Certificate specifying any event which with the giving of notice or lapse of
time, or both, would become an Event of Servicing Termination under Section 8.1.
The Seller shall deliver to the Indenture Trustee and the Owner Trustee,
promptly after having obtained knowledge thereof, but in no event later than
five Business Days thereafter, an Officer's Certificate specifying any event
which with the giving of notice or lapse of time, or both, would become an Event
of Servicing Termination under Section 8.1.
SECTION 4.10. Annual Audit Report. The Servicer shall cause a
firm of independent public accountants (which may provide other services to the
Servicer or the Seller) to prepare a report (with a copy of the certificate
described in Section 4.9(a) attached) addressed to the Board of Directors of the
Servicer, for the information and use of the Indenture Trustee, the Owner
Trustee and the Rating Agencies on or before March of each year, beginning March
31, 1998, 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 (i) such exceptions as such firm believes to be immaterial
and (ii) such other exceptions as shall be set forth in such firm's report, or
(B) such firm has performed the following procedures:
1. For a sample of daily cash receipts during the preceding
calendar year:
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:
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a. Agree total cash receipts per the cash receipt reports to
"Total Payments From Obligors Applied to Collection Period"
per monthly Servicer Certificates.
b. Agree total principal payments per the cash receipt
reports to "Principal Payments" per monthly Servicer
Certificates.
3. For a sample of loans delinquent 30 days or more and for a sample of
loans in repossession status, selected from the loan delinquency report
or a new repossession report, as applicable, at a point in time, trace
loan number to inclusion in the loan collection system.
The determination of which of the two alternative reports to be prepared and
delivered, and the size of each sample to be tested, shall be decided in the
sole discretion of the Servicer. The report of the independent certified public
accountants shall also indicate that such accounting firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.11. Access by Holders to Certain Documentation and
Information Regarding Receivables. The Servicer shall provide to the Holders
access to the Receivable Files in such cases where the Holders shall be required
by applicable statutes or regulations to have access to such documentation.
Access by the Holders shall be afforded without charge, but only upon reasonable
request and during normal business hours which does not unreasonably interfere
with the Servicer's normal operations or customer or employee relations. Nothing
in this Section 4.11 shall affect the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors, and
the failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section 4.11.
SECTION 4.12. Reports to Holders and the Rating Agencies. (a)
The Indenture Trustee or the Owner Trustee, as applicable, shall provide to any
Holder who so requests in writing (addressed to the Corporate Trust Office of
such trustee) a copy of any Servicer's Certificate described in Section 4.8, of
the annual statement described in Section 4.9(a), or of the annual report
described in Section 4.10. The Indenture Trustee or the Owner Trustee, as
applicable, may require the Holder to pay a reasonable sum to cover the cost of
the Indenture Trustee's or the Owner Trustee's complying with such request, as
applicable.
(b) The Indenture Trustee or the Owner Trustee, as applicable,
shall forward to the Rating Agencies the statement to Holders described in
Section 5.8 and any other reports it may
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receive pursuant to this Agreement to (i) Standard & Poor's Ratings Services,
Asset-Backed Surveillance Group, 25 Broadway, New York, New York 10004, (ii)
Moody's Investors Service, ABS Monitoring Dept., 99 Church Street, 4th Floor,
New York, New York 10007 and (iii) to Fitch Investors Services, L.P., One State
Street Plaza, 32nd Floor, New York, New York 10004.
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 Accounts. (a) The Servicer shall
establish and maintain:
(i) For the benefit of the Noteholders and the
Certificateholders, in the name of the Indenture Trustee, an
Eligible Deposit Account for the deposit of Collections (the
"Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the
benefit of the Noteholders and the Certificateholders.
(ii) For the benefit of the Noteholders, in the name
of the 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.
Each Account shall be an Eligible Deposit Account established
initially at Chase.
(b) Should any depositary of an Account or of the Certificate
Distribution Account (including Chase (or an Affiliate thereof)) cease to be
either a Qualified Institution or a Qualified Trust Institution, as applicable,
then the Servicer shall, with the Seller's assistance as necessary, cause the
related Account to be moved to a Qualified Institution or a Qualified Trust
Institution, unless the Rating Agency Condition is satisfied in connection with
such depositary's ceasing to be a
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Qualified Institution or a Qualified Trust Institution, as the case may be.
All amounts held in the Collection Account shall be invested
by the bank or trust company then maintaining the account (at the written
direction of the Servicer) in Permitted Investments that mature not later than
the Deposit Date next succeeding the date of investment (or, if the Class A-1
Event has occurred, not later than July 9, 1998, in the case of investments made
on or after the Deposit Date in June 1998 and prior to the Deposit Date in July
1998, in an amount at least equal to the July 1998 Class A-1 Note Distribution)
except, if the Collection Account is maintained with the Indenture Trustee for
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), which investments may mature on the next succeeding Distribution
Date; provided, however, that once such amounts have been invested by such bank
or trust company, as applicable, in Permitted Investments, such Permitted
Investments must be held or maintained until they mature on or before the dates
described above. Amounts on deposit in the Note Distribution Account shall not
be invested.
(c) The Indenture Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Accounts and in all
proceeds thereof (excluding Investment Earnings) and all such funds,
investments, proceeds and income shall be part of the Owner Trust Estate. Except
as otherwise provided herein, the Accounts shall be under the sole dominion and
control of Indenture Trustee for the benefit of the Noteholders and the
Certificateholders, or the Noteholders, as the case may be.
SECTION 5.2. Collections. (a) The Servicer shall remit daily
within forty-eight hours of receipt to the Collection Account all payments by or
on behalf of the Obligors on the Receivables and all Liquidation Proceeds, both
as collected during the Collection Period. Chase USA has requested that, so 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, "F-1" by
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Fitch (if rated by Fitch) and "A-1" by Standard & Poor's, or the Rating Agency
Condition is satisfied as a result of Collections being remitted on a monthly,
rather than daily, basis and (ii) the Servicer shall be Chase USA or Chase;
provided, however, that if the Class A-1 Event has occurred, with respect to
Collections received during the June 1998 Collection Period, the Servicer shall
remit to the Collection Account on July 9, 1998 an amount of such Collections
equal to the July 1998 Class A-1 Note Distribution. 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 (or July 9, 1998), 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 (or July 9, 1998), 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. Investment Earnings on amounts on deposit
in the Collection Account will be paid to the Servicer.
(b) Notwithstanding anything in this Agreement to the
contrary, if the Servicer inadvertently deposits amounts that it mistakenly
believes are Collections resulting in the payment in full of a Receivable, 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; provided, however, that if the
Class A-1 Event has occurred and the amount of Collections on the Receivables
received during the June 1998 Collection Period is less than the July 1998 Class
A-1 Note Distribution, such remittances (up to the amount of such shortfall)
shall be deposited into the Collection Account no later than July 9, 1998.
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
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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 paid to the
Seller with respect to the next succeeding Distribution Date.
(b) On each Deposit Date, the Servicer shall instruct the
Indenture Trustee in writing (based on the information contained in the
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 4.8) to withdraw from the Reserve Account and deposit in the Collection
Account the Reserve Account Transfer Amount (if any) for the related
Distribution Date, and the Indenture Trustee shall so withdraw and deposit the
Reserve Account Transfer Amount for such Distribution Date; provided, however,
that if the Class A-1 Event has occurred and the Total Distribution Amount for
the July 1998 Distribution Date is less than the July 1998 Class A-1 Note
Distribution, the Servicer shall instruct the Indenture Trustee in writing to
withdraw from the Reserve Account and deposit in the Collection Account on July
9, 1998 a portion of the Reserve Account Transfer Amount for the July 1998
Distribution Date equal to the lesser of such Reserve Account Transfer Amount
and the amount of such insufficiency as determined by the Servicer.
(c) Not later than 11:00 a.m., New York City time, on each
Distribution 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 Distribution Date:
(i) to the Servicer, the sum of (x) the Servicing
Fee for the preceding Collection Period, plus (y) the amount
of any Servicing Fee previously due but not paid, if any, to
the extent such amounts are not deducted from the Servicer's
remittance to the Collection Account pursuant to Section 5.7;
(ii) to the Administrator, the sum of (x) the
Administration Fee for such Distribution 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;
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(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;
(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, 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), (vi) and (vii) of Section 5.5(c).
(e) Notwithstanding any of the foregoing to the contrary, if
the Class A-1 Event shall have occurred (x) the July 1998 Class A-1 Note
Distribution will be deposited in the Note Distribution Account on the July 1998
Distribution Date with respect to Class A-1 Notes pursuant to clauses (iii) and
(v) of Section 5.5(c) and (y) the remainder of the Noteholders' Distributable
Amount will be withdrawn from the Collection Account, as applicable, and applied
on the July 1998 Distribution Date with respect to the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class A-5 Notes and the Certificates
pursuant to clauses (i) through (vii), inclusive, of Section 5.5(c); provided,
however if the sum of the Total Distribution Amount and the Reserve Account
Transfer Amount for the July 1998 Distribution Date is less than the sum of the
amounts set forth in clauses (i) through (v) of Section 5.5(c), amounts shall be
distributed from the Collection Account with respect to the Class A-1 Notes only
to the same extent that such amounts would have
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been distributable therefrom if the July 1998 Distribution Date with respect to
the Class A-1 Notes were the same as that with respect to the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class A-5 Notes and the
Certificates.
SECTION 5.6. Reserve Account. (a) The Seller shall establish
and maintain an Eligible Deposit Account (the "Reserve Account") at Norwest Bank
Minnesota, National Association in the name of the Indenture Trustee 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) Should any sole depositary of the Reserve Account cease to
be either a Qualified Institution or a Qualified Trust Institution, the Seller
shall cause the Reserve Account to be moved to a Qualified Institution or a
Qualified Trust Institution, as applicable, unless the Seller provides the
Indenture Trustee with a letter from the Rating Agencies to the effect that the
Rating Agency Condition will be 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 Reserve Account shall be invested by
the bank or trust company then maintaining the account (at the written direction
of the Seller) in Permitted Investments that mature not later than the Deposit
Date next succeeding the date of investment (or, if the Class A-1 Event has
occurred, not later than July 9, 1998 to the extent of the July 1998 Class A-1
Note Distribution) except, if the Reserve Account is maintained with the
Indenture Trustee, for 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), which investments may mature on the
next succeeding Distribution Date; provided, however, that amounts on deposit in
the Reserve Account may be invested in Permitted Investments that mature later
than the next succeeding Deposit Date (or July 9, 1998 if the Class A-1 Event
has occurred) if the Rating Agency Condition is satisfied.
(c) With respect to the Reserve Account Property:
(i) any Reserve Account Property that constitutes
Physical Property shall be delivered to the Indenture Trustee
in accordance with paragraph (a) of the definition of
"Delivery" and shall be held by the Indenture Trustee, pending
maturity or disposition;
(ii) any Reserve Account Property that is a United
States Security Entitlement shall be delivered in accordance
with paragraph (b) of the definition of
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"Delivery" and shall be maintained by the Indenture Trustee,
pending maturity or disposition; and
(iii) any Reserve Account Property that is an
"uncertificated security" under Article 8 (or VIII as
applicable) of the Relevant UCC and that is not governed by
clause (ii) above shall be delivered to the Indenture Trustee
in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee,
pending maturity or disposition.
The Indenture Trustee shall, at the expense of the Servicer, take such action as
is required to maintain the Indenture Trustee's security interest in any Reserve
Account Property; provided, however, that (x) the Indenture Trustee shall not be
required to prepare or file any financing statements or continuation statements
and (y) the Indenture Trustee may rely upon the written instructions of the
Servicer as to the method by which the security interest of the Indenture
Trustee may be perfected.
Upon written request from the Indenture Trustee, the Servicer shall provide
such instructions and an opinion of counsel with respect to the method of
perfection of such security interest; provided, however, that the Servicer shall
not be obligated to deliver to the Indenture Trustee an opinion of counsel with
respect to the method of perfecting a security interest in any Permitted
Investment the method of perfecting an ownership interest in which was described
in that certain legal opinion of Dorsey & Whitney LLP, special local counsel to
the Indenture Trustee, dated June 18, 1997, unless there has been change in law
or the interpretation thereof from the date of such opinion with respect to the
method of perfecting a security interest in such Permitted Investment.
(d) On each Distribution Date, the Indenture Trustee shall
withdraw from the Reserve Account and pay to the Seller the excess, if any, of
the amount on deposit in the Reserve Account over the Specified Reserve Account
Balance with respect to such Distribution Date (after giving effect to all
deposits therein or withdrawals therefrom on such Distribution Date). Upon any
distribution to the Seller of amounts from the Reserve Account, the Holders will
have no rights in, or claims, to, such amounts.
Amounts properly distributed to the Seller from the Reserve Account shall not
be available under any circumstances to the Indenture Trustee, and the Seller
shall not in any event thereafter be required to refund any such distributed
amounts. For purposes of this Section 5.6(d), the July 1998 Distribution Date
shall be July 15, 1998 regardless of whether the Class A-1 Event has occurred.
(e) The Indenture Trustee shall possess all right, title and
interest in all funds on deposit from time to time in
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the Reserve Account and in all proceeds thereof and all such funds, investments,
proceeds and income shall be part of the Trust Estate. Except as otherwise
provided herein, the Reserve Account shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Noteholders and the
Certificateholders.
SECTION 5.7. Net Deposits. Chase USA (in its capacity as the
Seller or the Servicer) may make the remittances pursuant to Sections 5.2 and
5.4 above, net of amounts to be retained by it or distributed to it (also in any
such capacity) pursuant to Section 4.7 (if applicable) and Section 5.5, if (a)
it shall be the Servicer and (b) it is entitled, pursuant to Section 5.2, to
make deposits on a monthly basis, rather than a daily basis. Nonetheless, the
Servicer shall account for all of the above described amounts as if such amounts
were deposited and distributed separately.
SECTION 5.8. Statements to Certificateholders and Noteholders.
(a) On each Distribution Date, the Servicer shall provide to the Indenture
Trustee (for the Indenture Trustee 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 and the Luxembourg Stock Exchange (so long as any
Notes are listed thereon), 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, the Class A-4 Notes and the Class A-5
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 Distribution Date;
(v) the Outstanding Amount of each class of the
Notes, the Class A-1 Note Pool Factor, the Class A-2 Note Pool
Factor, the Class A-3 Note Pool Factor, the Class A-4 Note
Pool Factor, the Class A-5 Note Pool Factor, the Certificate
Balance and the Certificate
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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 Distribution Date;
(ix) the balance of the Reserve Account on such
Distribution Date, after giving effect to deposits into and
withdrawals from the Reserve Account on such Distribution
Date;
(x) the Specified Reserve Account Balance for
such Distribution Date;
(xi) the Total Distribution Amount for such
Distribution Date;
(xii) the Noteholders' Distributable Amount and
the components thereof;
(xiii) the Certificateholders' Distributable Amount
and the components thereof; and
(xiv) the Reserve Account Transfer Amount, if any,
for such Distribution 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
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pledge thereof to the Indenture Trustee pursuant to the Indenture.
(i) Organization and Good Standing. The Seller has
been duly organized and is validly existing as a national
banking association in good standing under the laws of the
United States of America, with power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and
had at all relevant times, and has, power, authority, and
legal right to acquire and own the Receivables.
(ii) Power and Authority. The Seller has the power
and authority to execute and deliver this Agreement and the
other Basic Documents to which it is a party and to carry out
their respective terms, the Seller has full power and
authority to sell and assign the property to be sold and
assigned to the Issuer as the Owner Trust Estate and has duly
authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery, and
performance of this Agreement and the other Basic Documents to
which it is a party has been duly authorized by the Seller by
all necessary action.
(iii) Valid Sale; Binding Obligations. This Agreement
effects a valid sale, transfer, and assignment of the
Receivables, enforceable against creditors of and purchasers
from the Seller; this Agreement and each of the other Basic
Documents to which it is a party constitutes a legal, valid,
and binding obligation of the Seller enforceable in accordance
with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and
by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(iv) No Violation. The consummation of the
transactions contemplated by this Agreement and the other
Basic Documents and the fulfillment of the terms hereof and
thereof do not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the articles of
association or bylaws of the Seller, or conflict with or
breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default
under, any indenture, agreement, or other instrument to which
the
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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, the Notes or the Certificates, or (d) relating to
the Seller and which might adversely affect the federal or
state income tax attributes of the Notes or the Certificates.
SECTION 6.2. Liability of Seller; Indemnities. The Seller
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller in such capacity under this Agreement and
shall have no other obligations or liabilities hereunder.
The Seller shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee and the Indenture Trustee from and against any taxes
that may at any time be asserted against any such Person with respect to, and as
of the date of, the sale of the Receivables to the Issuer or the issuance and
original sale of the Notes and the Certificates, including any sales, gross
receipts, general corporation, tangible or intangible personal property,
privilege, or license taxes (but not including any taxes asserted with respect
to ownership of the Receivables or federal or other income taxes, including
franchise taxes measured by net income), arising out of the transactions
contemplated by this Agreement and the other Basic Documents, and costs and
expenses in defending against the same.
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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 wilful misfeasance,
bad faith, or gross negligence in the performance of its duties hereunder, or by
reason of reckless disregard of the obligations and duties hereunder and (ii)
the Seller's violation of federal or state securities laws in connection with
the registration of the sale of the Notes and the Certificates.
Indemnification under this Section 6.2 shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Seller shall have made any indemnity payments to the Issuer, the Owner Trustee
or the Indenture Trustee, respectively, pursuant to this Section 6.2 and the
Issuer, the Owner Trustee or the Indenture Trustee, respectively, thereafter
shall collect any of such amounts from others, the Issuer, the Owner Trustee or
the Indenture Trustee, respectively, shall repay such amounts to the Seller,
without interest.
SECTION 6.3. Merger or Consolidation of Seller. Any
corporation or other entity (i) into which the Seller may be merged or
consolidated, (ii) which may result from any merger, conversion, or
consolidation to which the Seller shall be a party, or (iii) which may succeed
to all or substantially all of the business of the Seller, which corporation or
other entity shall be bound to perform every obligation of the Seller under this
Agreement, shall be the successor to the Seller hereunder without the execution
or filing of any document or any further act by any of the parties to this
Agreement. The Seller shall give prompt written notice of any merger or
consolidation to the Issuer, the Owner Trustee, the Indenture Trustee, the
Servicer and the Rating Agencies.
SECTION 6.4. Limitation on Liability of Seller and Others. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder or under any other Basic Documents. The Seller shall not be under any
obligation under this Agreement to appear in, prosecute, or defend any legal
action that shall be unrelated to its obligations under this Agreement or any
other Basic Document, and that in its opinion may involve it in any expense or
liability.
SECTION 6.5. Seller May Own Notes and Certificates. The Seller
or any of its Affiliates may in its individual or any other capacity become the
owner or pledgee of Notes or Certificates with the same rights as it would have
if it were not the Seller or an Affiliate thereof, except as otherwise provided
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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
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affecting the enforcement of creditors' rights, whether
considered in a proceeding at law or in equity.
(iv) No Violation. The consummation of the
transactions contemplated by this Agreement and the other
Basic Documents and the fulfillment of the terms hereof and
thereof do not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without
notice or lapse of time) a default under, the articles of
association or bylaws of the Servicer, or conflict with or
breach any of the material terms or provisions of, or
constitute (with or without notice or lapse of time) a default
under, any indenture, agreement, or other instrument to which
the Servicer is a party or by which it is bound; nor result in
the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture,
agreement, or other instrument; nor violate any law or, to the
best of the Servicer's knowledge, any order, rule, or
regulation applicable to the Servicer of any court or of any
federal or state regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over
the Servicer or its properties.
(v) No Proceedings. There are no proceedings or
investigations pending, or to the Servicer's best knowledge,
threatened, before any court, regulatory body, administrative
agency, or other governmental instrumentality having
jurisdiction over the Servicer or its properties: (a)
asserting the invalidity of this Agreement, the Notes or the
Certificates, (b) seeking to prevent the issuance of the Notes
or the Certificates or the consummation of any of the
transactions contemplated by this Agreement or any other Basic
Document, (c) seeking any determination or ruling that might
materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or
enforceability of, this Agreement, any other Basic Document,
the Notes or the Certificates, or (d) relating to the Servicer
and which might adversely affect the federal or state income
tax attributes of the Notes or the Certificates.
(vi) Fidelity Bond. The Servicer maintains a
fidelity bond in such form and amount as is customary for
banks acting as custodian of funds and documents in respect of
retail automotive installment sales contracts.
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SECTION 7.2. Liability of Servicer; Indemnities. The Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement and shall have no
other obligations or liabilities hereunder.
(i) The Servicer shall defend, indemnify, and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee
and the Holders from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership, or operation by the
Servicer or any Affiliate thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend, and hold
harmless the Issuer, the Owner Trustee and the Indenture
Trustee from and against any taxes that may at any time be
asserted against the Issuer with respect to the transactions
contemplated in this Agreement, including, without limitation,
any sales, gross receipts, general corporation, tangible or
intangible personal property, privilege, or license taxes (but
not including any taxes asserted with respect to, and as of
the date of, the sale of the Receivables to the Issuer or the
issuance and original sale of the Notes or the Certificates,
or asserted with respect to ownership of the Receivables or
federal, state or other income taxes, including franchise
taxes measured by net income) arising out of distributions on
the Notes or the Certificates and costs and expenses in
defending against the same.
(iii) The Servicer shall indemnify, defend, and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee
and the Holders from and against any and all costs, expenses,
losses, claims, damages, and liabilities to the extent that
such cost, expense, loss, claim, damage, or liability arose
out of, or was imposed upon the Issuer, the Owner Trustee, the
Indenture Trustee or the Holders through the wilful
misfeasance, gross negligence, or bad faith of the Servicer in
the performance of its duties under this Agreement or by
reason of reckless disregard of its obligations and duties
under this Agreement.
Indemnification under this Section 7.2 shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section 7.2 and
the recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts to the Servicer,
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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 wilful misfeasance, gross
negligence, or bad faith in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement. The Servicer and any
director or officer or employee or agent of the Servicer may rely in good faith
on the advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement.
(b) The Servicer, and any director, or officer, employee or
agent of the Servicer, shall be indemnified by the Issuer and held harmless
against any loss, liability, or expense (including reasonable attorneys' fees
and expenses) incurred in connection with any legal action relating to the
performance of the Servicer's duties under this Agreement, other than (i) any
loss or liability otherwise reimbursable pursuant to this Agreement or the Basic
Documents; (ii) any loss, liability, or expense incurred solely by reason of the
Servicer's wilful misfeasance, negligence, or bad faith in the performance of
its
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duties hereunder or by reason of reckless disregard of its obligations and
duties under this Agreement or the Basic Documents; and (iii) any loss,
liability, or expense for which the Issuer is to be indemnified by the Servicer
under this Agreement or the Basic Documents. Any amounts due the Servicer
pursuant to this Section 7.4 shall be payable on a Distribution Date from
amounts distributable to the Seller from the Reserve Account pursuant to Section
5.6(d).
(c) Except as provided in this Agreement, the Servicer shall
not be under any obligation to appear in, prosecute, or defend any legal action
that shall not be incidental to its obligations under this Agreement, and that
in its opinion may involve it in any expense or liability; provided, however,
that the Servicer may undertake any reasonable action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties to this Agreement and the interests of the Holders under this Agreement.
In such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs, and liabilities of the Issuer, and
the Servicer shall be entitled to be reimbursed therefor. Any amounts due the
Servicer pursuant to this Section 7.4 shall be payable on a Distribution Date
from amounts distributable to the Seller from the Reserve Account pursuant to
Section 5.6(d).
The Person to be indemnified shall provide the Issuer, the
Owner Trustee and the Indenture Trustee with a certificate and accompanying
Opinion of Counsel requesting indemnification and setting forth the basis for
such request.
SECTION 7.5. Servicer Not To Resign. Except as permitted by
Section 7.3, the Servicer shall not resign from its obligations and duties under
this Agreement except (i) upon determination that the performance of its duties
shall no longer be permissible under applicable law or (ii) in the event of the
appointment of a successor Servicer, upon satisfaction of the Rating Agency
Condition. Notice of any such determination permitting the resignation of the
Servicer shall be communicated to the Issuer, the Indenture Trustee, the Owner
Trustee and the Rating Agencies at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Issuer, the Indenture Trustee and the Owner Trustee concurrently with such
notice. No such resignation shall become effective until the Indenture Trustee
(which shall not be obligated to act as successor Servicer if the Servicer has
resigned for a reason other than that the performance of its duties are no
longer permissible under applicable law) or a successor Servicer shall have
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assumed the responsibilities and obligations of the Servicer hereunder in
accordance with Section 8.2. -----------
SECTION 7.6. Delegation of Duties. So long as Chase USA acts
as Servicer, the Servicer shall have the right, in the ordinary course of its
business, to delegate any of its duties under this Agreement to any Person. Any
compensation payable to such Person shall be paid by the Servicer from its own
funds and none of the Issuer, the Owner Trustee, the Indenture Trustee or the
Holders shall have any liability to such Person with respect thereto.
Notwithstanding any delegation of duties by the Servicer pursuant to this
Section 7.6, the Servicer shall not be relieved of its liability and
responsibility with respect to such duties, and any such delegation shall not
constitute a resignation within the meaning of Section 7.5. Any agreement that
may be entered into by the Servicer and a Person that provides for any
delegation of the Servicer's duties hereunder to such Person shall be deemed to
be between the Servicer and such Person alone, and the Issuer, the Owner
Trustee, the Indenture Trustee and Holders shall not be deemed parties thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect thereto.
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
SECTION 8.1. Events of Servicing Termination. Any one of the
following events which shall occur and be continuing shall constitute an event
of servicing termination hereunder (each, an "Event of Servicing Termination"):
(i) Any failure by the Servicer to deliver to the
Indenture Trustee the Servicer's Certificate for the related
Collection Period, or any failure by the Servicer to deliver
to the Indenture Trustee, for deposit in any of the Trust
Accounts or the Certificate Distribution Account, any proceeds
or payment required to be so delivered under the terms of the
Certificates or the Notes and this Agreement (or, in the case
of a payment or deposit to be made not later than the Deposit
Date, the failure to make such payment or deposit on such
Deposit Date), which failure continues unremedied for a period
of five Business Days after (A) discovery by an officer of the
Servicer or (B) written notice (1) to the Servicer by the
Indenture Trustee or the Owner Trustee or (2) to the Indenture
Trustee or the Owner Trustee, as applicable, and the Servicer
by the Holders of Notes evidencing not less than 25% of the
Outstanding Amount of the Notes (or, if the Notes
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have been paid in full, by Holders of the Certificates
evidencing not less than 25% of the Certificate Balance);
(ii) Failure on the part of the Servicer duly to
observe or to perform in any material respect any other
covenants or agreements of the Servicer set forth in this
Agreement or the Indenture, which failure shall (a) materially
and adversely affect the rights of the Issuer or the Holders,
and (b) continue unremedied for a period of 60 days after the
date on which written notice of such failure, requiring the
same to be remedied, shall have been given (1) to the Servicer
by the Indenture Trustee or the Owner Trustee, or (2) to the
Indenture Trustee or the Owner Trustee, as applicable, and the
Servicer by the Holders of Notes evidencing not less than 25%
of the Outstanding Amount of the Notes (or, if the Notes have
been paid in full, by Holders of the Certificates evidencing
not less than 25% of the Certificate Balance);
(iii) The entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver, or
liquidator for the Servicer in any insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar
proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Servicer to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
or similar proceedings of or relating to the Servicer or of or
relating to substantially all of its property; or the Servicer
shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations.
Upon the occurrence of any Event of Servicing Termination as described above,
and in each and every case and for so long as such Event of Servicing
Termination shall not have been remedied, either the Indenture Trustee or the
Holders of Notes evidencing not less than a majority of the Outstanding Amount
of the Notes (or, if the Notes have been paid in full and the Indenture has been
discharged in accordance with its terms, by the Owner
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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.
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As compensation therefor, the Indenture Trustee shall be entitled to such
compensation (whether payable out of the Collection Account or otherwise) as the
Servicer would have been entitled to under this Agreement if no such notice of
termination or resignation had been given. Notwithstanding the above, the
Indenture Trustee may, if it shall be unwilling so to act, or shall, if it shall
be legally unable so to act, appoint, or petition a court of competent
jurisdiction to appoint, any established financial institution (x) having a net
worth of not less than $100,000,000 as of the last day of the most recent fiscal
quarter for such institution and (y) whose regular business shall include the
servicing of automobile receivables, as successor Servicer under this Agreement;
provided, that the appointment of any such successor Servicer is required to
satisfy the Rating Agency Condition. In connection with such appointment, the
Indenture Trustee may make such arrangements for the compensation of such
successor Servicer out of payments on Receivables as it and such successor
Servicer shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Servicer under this Agreement. The Indenture
Trustee and such successor Servicer shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Unless the
Indenture Trustee shall be prohibited by law from so acting, the Indenture
Trustee shall not be relieved of its duties as successor Servicer under this
Section 8.2 until the newly appointed successor Servicer shall have assumed the
responsibilities and obligations of the Servicer under this Agreement.
SECTION 8.3. Notification to Noteholders and
Certificateholders. Upon any Event of Servicing Termination, or appointment of a
successor Servicer pursuant to this Article VIII, the Owner Trustee shall give
prompt written notice thereof to Certificateholders and the Indenture Trustee
shall give prompt written notice thereof to the Noteholders, at their respective
addresses of record, and to the Rating Agencies.
SECTION 8.4. Waiver of Past Defaults. The Holders of Notes
evidencing at least a majority of the Outstanding Amount of the Notes (or, the
Holders of Certificates evidencing not less than a majority of the Certificate
Balance, in the case of any Event of Servicing Termination that does not
adversely affect the Indenture Trustee or the Noteholders) may, on behalf of all
such Holders, waive any default by the Servicer in the performance of its
obligations hereunder and its consequences, except a default in the failure to
make any required deposits to or payments from any of the Trust Accounts or the
Certificate Distribution Account in accordance with this Agreement. Upon any
such waiver of a past default, such default shall cease to exist, and any Event
of Servicing Termination arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement. No such
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waiver shall extend to any subsequent or other default or impair any
right consequent thereon except to the extent expressly so waived. The Servicer
shall give prompt written notice of any waiver to the Rating Agencies; provided,
however, -------- ------- that the Indenture Trustee or the Owner Trustee shall
only be required to give such notice if a Responsible Officer thereof has actual
knowledge of the related event.
ARTICLE IX
TERMINATION
SECTION 9.1. Optional Purchase of All Receivables; Trust
Termination. (a) As of the last day of any Collection Period as of which the
Pool Balance shall be equal to or less than the Optional Purchase Percentage of
the Original Pool Balance, the Servicer shall have the option to purchase the
Owner Trust Estate, other than the Trust Accounts and the Certificate
Distribution Account. To exercise such option, the Servicer shall notify the
Indenture Trustee, the Owner Trustee, the Note Registrar and the Certificate
Registrar in writing, no later than the 25th day of the Collection Period
following which purchase is to be effected, shall pay the aggregate Repurchase
Amount for the Receivables (including Defaulted Receivables) and shall succeed
to all interests in, to and under such property. The payment shall be made in
the manner specified in Section 5.4, and shall be distributed pursuant to
Section 5.5. The Indenture Trustee shall not permit the purchase of the Owner
Trust Estate pursuant to this Section 9.1 unless (i) the Servicer's long-term
unsecured debt is rated at the time of such purchase at least "BBB-" by Standard
& Poor's and Fitch (if rated by Fitch) and "Baa3" by Moody's or (ii) the
Servicer provides to the Indenture Trustee an Opinion of Counsel in form and
substance satisfactory to the Rating Agencies to the effect that such purchase
will not constitute a fraudulent transfer under applicable state and federal
law.
(b) Upon any sale of the assets of the Issuer pursuant to
Article V of the Indenture, the Servicer shall instruct the Indenture Trustee in
writing to deposit the proceeds from such
sale after all payments and reserves therefrom (including the expenses of such
sale) have been made (the "Sale Proceeds") in the Collection Account. On the
Distribution Date on which the Sale Proceeds are deposited in the Collection
Account (or, if such proceeds are not so deposited on a Distribution Date, on
the Distribution Date immediately following such deposit), the Servicer shall
instruct the Indenture Trustee in writing to make, and the Indenture Trustee
shall make, the following deposits and distributions (after the application on
such Distribution Date of the Total Distribution Amount pursuant to Section 5.5)
from the
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Sale Proceeds and any funds remaining on deposit in the Reserve Account
(including the proceeds of any sale of investments therein):
(i) to the Note Distribution Account, any portion
of the Noteholders' Interest Distributable Amount not
otherwise deposited into the Note Distribution Account on such
Distribution Date;
(ii) to the Note Distribution Account, the
Outstanding Amount of the Notes (after giving effect to the
reduction in the Outstanding Amount of the Notes resulting
from the deposits made in the Note Distribution Account on
such Distribution Date);
(iii) to the Certificate Distribution Account, any
portion of the Certificateholders' Interest Distributable
Amount not otherwise deposited into the Certificate
Distribution Account on such Distribution Date; and
(iv) to the Certificate Distribution Account, the
Certificate Balance and any Certificateholders' Principal
Carryover Shortfall (after giving effect to the reduction in
the Certificate Balance resulting from the deposits made in
the Certificate Distribution Account on such Distribution
Date).
Any Sale Proceeds remaining after the deposits described above shall be paid to
the Seller.
(c) Notice of any termination of the Issuer shall be given by
the Servicer to the Owner Trustee, the Indenture Trustee and the Rating Agencies
as soon as practicable after the Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture
and the payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder and
the Owner Trustee will succeed to the rights of, and assume the obligations of,
the Indenture Trustee pursuant to this Agreement.
(e) After the payment to the Indenture Trustee, the Owner
Trustee, the Holders and the Servicer of all amounts required to be paid under
this Agreement, the Indenture and the Trust Agreement, any amounts on deposit in
the Reserve Account or the Collection Account shall be paid to the Seller, and
any other assets remaining in the Owner Trust Estate shall be distributed to the
Seller.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Amendment. This Agreement may be amended by the
Seller, the Servicer and the Owner Trustee, with the prior consent of the
Indenture Trustee and prior notice to the Rating Agencies but without prior
notice to or the consent of any of the Holders, (i) to cure any ambiguity, to
correct or supplement any provisions in this Agreement which may be inconsistent
with any other provisions herein, to evidence a succession to the Servicer or
the Seller pursuant to this Agreement or to add any other provisions with
respect to matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however, that such
action shall not, as evidenced by an Officer's Certificate and/or an Opinion of
Counsel reasonably acceptable and delivered to the Owner Trustee and the
Indenture Trustee, adversely and materially affect the interests of the Issuer
or any of the Holders; provided, further, that the Servicer shall deliver
written notice of such changes to each Rating Agency prior to the execution of
any such amendment, or (ii) to effect a transfer or assignment in compliance
with Section 10.6(a) of this Agreement. Notwithstanding the foregoing, no
amendment modifying the provisions of Section 5.5 shall become effective without
satisfaction of the Rating Agency Condition.
This Agreement may also be amended from time to time by the
Seller, the Servicer and the Owner Trustee, with the consent of the Indenture
Trustee, the Holders of Certificates evidencing at least a majority of the
Certificate Balance of the Certificates and the consent of the Holders of Notes
evidencing at least a majority of the Outstanding Amount of the Notes, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Noteholders or the Certificateholders (including effecting a transfer or
assignment in compliance with Section 10.6(a) of this Agreement); provided,
however, that no such amendment, except with the consent of the Holders of all
Certificates or Notes, as applicable, then outstanding, shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments of Receivables, or distributions that shall be required
to be made on any Certificate or Note, or (b) reduce the aforesaid percentage of
the Certificate Balance of the Certificates or the Outstanding Amount of the
Notes required to consent to any such amendment.
Promptly after the execution of any amendment or consent
referred to in this Section 10.1, the Owner Trustee shall furnish a copy of such
amendment or consent to the Indenture
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Trustee and each Noteholder and Certificateholder and to the Rating Agencies.
It shall not be necessary for the consent of the Indenture
Trustee, the Certificateholders or the Noteholders pursuant to this Section 10.1
to approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders or Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee or the Owner Trustee may
prescribe.
Prior to the execution of any amendment to this Agreement, the
Indenture Trustee and the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Indenture Trustee and the Owner
Trustee shall not be obligated to enter into any such amendment which affects
the Indenture Trustee's and the Owner Trustee's own rights, duties or immunities
under this Agreement.
Satisfaction of the Rating Agency Condition is required prior
to the execution of any amendment to this Agreement, other than an amendment
permitted pursuant to clause (i) of the first paragraph of this Section 10.1.
SECTION 10.2. Protection of Title to Owner Trust Estate.
(a) The Seller shall execute and file such financing
statements and cause to be executed and filed such continuation statements, all
in such manner and in such places as may be required by law fully to preserve,
maintain, and protect the interests of the Issuer and the Indenture Trustee in
the Receivables and in the proceeds thereof. The Servicer shall deliver (or
cause to be delivered) to the Owner Trustee and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Neither the Seller nor the Servicer shall change its name,
identity, or corporate structure in any manner that would, could, or might make
any financing statement or continuation statement filed by the Seller in
accordance with paragraph (a) above seriously misleading within the meaning of
ss. 9-402(7) (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.
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(c) The Seller and the Servicer shall give the Owner Trustee
and the Indenture Trustee at least 60 days prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the Relevant UCC would require the filing of any
amendment of any previously filed financing or continuation statement or of any
new financing statement. The Servicer shall at all times maintain each office
from which it shall service Receivables, and its principal executive office,
within the United States of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of sale under this Agreement of the Receivables to the
Issuer, the Servicer's master computer records (including archives) that shall
refer to a Receivable indicate clearly, by numerical code or otherwise, that
such Receivable is owned by the Issuer and has been pledged to the Indenture
Trustee. Indication of the Issuer's and Indenture Trustee's interest in a
Receivable shall be deleted from or modified on the Servicer's computer systems
when, and only when, the Receivable shall have been paid in full, repurchased or
assigned pursuant hereto.
(f) If at any time the Seller or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in a new
or used automobile receivable to any prospective purchaser, creditor, or other
transferee, the Seller or the Servicer, as the case may be, shall give to such
prospective purchaser, creditor, or other transferee computer tapes, records, or
print-outs (including any restored from archives) that, if they shall refer in
any manner whatsoever to any Receivable, shall indicate clearly that such
Receivable has been sold and is owned by the Issuer and has been pledged to the
Indenture Trustee.
(g) The Servicer shall permit the Indenture Trustee and the
Owner Trustee and their respective agents upon reasonable notice at any time
during normal business hours which does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations to inspect,
audit, and make copies of and abstracts from the Servicer's records regarding
the Receivables.
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(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 contract number and name of Obligor then held by the Issuer,
together with a reconciliation of such list to the Schedule of Receivables
attached as Schedule A to this Agreement and to each of the Servicer
Certificates indicating removal of Receivables from the Owner Trust Estate.
(i) The Servicer shall deliver to the Owner Trustee and the
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, 1998, an Opinion of Counsel, dated as of such
date, either (a) stating that, in the opinion of such counsel,
all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Issuer and the Indenture Trustee
in the Receivables, and reciting the details of such filings
or referring to prior opinions of Counsel in which such
details are given, or (b) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and
protect such interest. Notwithstanding the provisions of
Section 10.4, such Opinion of Counsel may be sent by regular
non-certified mail, and such mailed opinion shall be deemed
delivered when so mailed.
(j) The Seller shall, to the extent required by applicable
law, cause the Certificates and the Notes to be registered with the Securities
and Exchange Commission pursuant to Section 12(b) or Section 12(g) of the
Exchange Act within the time periods specified in such sections.
(k) For the purpose of facilitating the execution of this
Agreement and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and all of
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which counterparts shall constitute but one and the same instrument.
SECTION 10.3. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED 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 Manhattan
Automotive Finance Corporation, 900 Stewart Avenue, Garden City, New York 11530
Attention: Financial Controller, or at such other address as shall be designated
by the Seller in a written notice to the Indenture Trustee, (b) in the case of
the Servicer, c/o Chase Manhattan Automotive Finance Corporation, 900 Stewart,
Garden City, New York 11530, Attention: Financial Controller, or at such other
address as shall be designated by the Servicer in a written notice to the
Indenture Trustee, (c) in the case of the Indenture Trustee, at Sixth Street and
Marquette Avenue, Minneapolis, Minnesota 55479-0070, Attention: Corporate Trust
Office, (d) in the case of the Issuer and the Owner Trustee, at c/o Wilmington
Trust Company, Rodney Square North, 1100 Market Street, Wilmington, Delaware
19890, Attention: Corporate Trust Administration and, (e) in the case of the
Luxembourg Stock Exchange, c/o Banque Generale du Luxembourg, S.A., 50 Avenue
JF. Kennedy-L-2951 Luxembourg. Any notice required or permitted to be mailed to
a Holder shall be given by first class mail, postage prepaid, at the address of
record of such Holder. Any notice to a Holder so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder shall receive such notice.
SECTION 10.5. Severability of Provisions. If any one or more
of the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or of
the Certificates or of the Notes or the rights of the Holders thereof.
SECTION 10.6. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 6.3, 7.3, 7.5 and 8.2,
neither the Seller nor the Servicer may assign all, or a portion of, its rights,
obligations and duties under this Agreement unless such transfer or assignment
satisfies the Rating Agency Condition. In the event of a transfer or
73
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assignment pursuant to this Section 10.6, the Rating Agencies shall be provided
with notice of such transfer or assignment.
SECTION 10.7. Certificates and Notes Nonassessable and Fully
Paid. The interests represented by the Certificates and Notes shall be
nonassessable for any losses or expenses of the Issuer or for any reason
whatsoever, and, upon authentication thereof by the Indenture Trustee and the
Owner Trustee pursuant to the Trust Agreement and the Indenture, respectively,
each Certificate and Note shall be deemed fully paid.
SECTION 10.8. Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, and their
respective successors and permitted assigns. The Administrator, the Owner
Trustee, individually and on behalf of the Certificateholders, and the Indenture
Trustee, individually and on behalf of the Noteholders are third-party
beneficiaries to this Agreement and are entitled to the rights and benefits
hereunder and may enforce the provisions hereof as it were a party hereto.
Except as otherwise provided in this Agreement, no other person will have any
right or obligation hereunder.
SECTION 10.9. Assignment to Indenture Trustee. The Seller
hereby acknowledges and consents to any mortgage, pledge, assignment and grant
of a security interest by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and interest of
the Issuer in, to and under the Receivables and the other property constituting
the Owner Trust Estate and/or the assignment of any or all of the Issuer's
rights and obligations hereunder to the Indenture Trustee.
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 beneficial
owner of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
of this Agreement, in the performance of its duties or obligations hereunder or
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles VI, VII and VIII of the Trust Agreement.
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(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been acknowledged and accepted 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.
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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, N.A.,
as Seller and Servicer
By: /s/ Keith Schuck
----------------------------------
Name: Keith Schuck
Title: Vice President
CHASE MANHATTAN AUTO OWNER TRUST,
1997-B, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Owner Trustee on behalf
of the Issuer
By: /s/ Patricia Evans
----------------------------------
Name: Patricia Evans
Title: Financial Services Officer
Acknowledged and Accepted:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
not in its individual capacity,
but solely in its capacity
as Indenture Trustee
By: /s/ Marianna Stershic
-------------------------------
Name: Marianna Stershic
Title: Corporate Trust Officer
<PAGE>
SCHEDULE A
LIST OF RECEIVABLES
DELIVERED TO THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE
ON THE CLOSING DATE.
77
<PAGE>
SCHEDULE B
Location of Receivable Files
The Chase Manhattan Bank
20 Clinton Avenue South
5th Floor
SENECA Building
Rochester, New York 14604
Iron Mountain
Route 9-W South
P.O. Box 477
Pt. Ewen, NY 12466
Chase Manhattan Automotive Finance Corporation
900 Stewart Avenue
Garden City, NY 11530
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EXHIBIT A
[FORM OF SERVICER'S CERTIFICATE]
A-1
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATEHOLDER AND NOTEHOLDER REPORT]
E-1
<PAGE>
EXECUTION COPY
- --------------------------------------------------------------------------------
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
Class A-1 5.744% Money Market Asset Backed Notes
Class A-2 6.100% Asset Backed Notes
Class A-3 6.350% Asset Backed Notes
Class A-4 6.500% Asset Backed Notes
Class A-5 6.600% Asset Backed Notes
-------------------------------
INDENTURE
Dated as of June 1, 1997
Norwest Bank Minnesota, National Association
as Indenture Trustee
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.................................................. 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act............ 2
SECTION 1.3 Usage of Terms............................................... 3
SECTION 1.4 Calculations of Interest..................................... 3
ARTICLE II
THE NOTES
SECTION 2.1 Form......................................................... 3
SECTION 2.2 Execution, Authentication and Delivery....................... 4
SECTION 2.3 Temporary Notes.............................................. 4
SECTION 2.4 Registration of Transfer and Exchange........................ 5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes................... 7
SECTION 2.6 Persons Deemed Owner......................................... 8
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest........ 8
SECTION 2.8 Cancellation................................................. 9
SECTION 2.9 Release of Collateral........................................ 9
SECTION 2.10 Book-Entry Notes............................................ 9
SECTION 2.11 Notices to Clearing Agency.................................. 10
SECTION 2.12 Definitive Notes............................................ 11
SECTION 2.13 Authenticating Agent........................................ 11
SECTION 2.14 Appointment of Paying Agent................................. 13
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest............................ 14
SECTION 3.2 Maintenance of Office or Agency.............................. 15
SECTION 3.3 Money for Payments To Be Held in Trust....................... 15
SECTION 3.4 Existence.................................................... 16
SECTION 3.5 Protection of Trust Estate................................... 16
SECTION 3.6 Opinions as to Trust Estate.................................. 17
SECTION 3.7 Performance of Obligations; Servicing of Receivables......... 17
SECTION 3.8 Negative Covenants........................................... 18
SECTION 3.9 Annual Statement as to Compliance............................ 19
SECTION 3.10 The Issuer May Consolidate, Etc. Only on Certain Terms...... 19
SECTION 3.11 Successor or Transferee..................................... 21
i
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Page
----
SECTION 3.12 No Other Business........................................... 22
SECTION 3.13 No Borrowing................................................ 22
SECTION 3.14 Servicer's Obligations...................................... 22
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities........... 22
SECTION 3.16 Capital Expenditures........................................ 22
SECTION 3.17 Restricted Payments......................................... 22
SECTION 3.18 Notice of Events of Default................................. 23
SECTION 3.19 Further Instruments and Acts................................ 23
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture...................... 23
SECTION 4.2 Application of Trust Money................................... 24
SECTION 4.3 Repayment of Moneys Held by Paying Agent..................... 24
SECTION 4.4 Duration of the Position of the Indenture Trustee for
the Benefit of Certificateholders..................................... 25
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default............................................ 25
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment........... 26
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by the Indenture Trustee.............................................. 26
SECTION 5.4 Remedies; Priorities......................................... 29
SECTION 5.5 Optional Preservation of the Receivables..................... 30
SECTION 5.6 Limitation of Suits.......................................... 30
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest................................................ 31
SECTION 5.8 Restoration of Rights and Remedies........................... 31
SECTION 5.9 Rights and Remedies Cumulative............................... 31
SECTION 5.10 Delay or Omission Not a Waiver.............................. 31
SECTION 5.11 Control by Noteholders...................................... 32
SECTION 5.12 Waiver of Past Defaults..................................... 32
SECTION 5.13 Undertaking for Costs....................................... 33
SECTION 5.14 Waiver of Stay or Extension Laws............................ 33
SECTION 5.15 Action on Notes............................................. 33
SECTION 5.16 Performance and Enforcement of Certain Obligations.......... 33
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of the Indenture Trustee.............................. 34
ii
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Page
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SECTION 6.2 Rights of the Indenture Trustee.............................. 36
SECTION 6.3 Individual Rights of the Indenture Trustee................... 37
SECTION 6.4 The Indenture Trustee's Disclaimer........................... 37
SECTION 6.5 Notice of Defaults........................................... 37
SECTION 6.6 Reports by the Indenture Trustee to Holders.................. 38
SECTION 6.7 Compensation and Indemnity................................... 38
SECTION 6.8 Replacement of the Indenture Trustee......................... 38
SECTION 6.9 Successor Indenture Trustee by Merger........................ 40
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee..................................................... 40
SECTION 6.11 Eligibility; Disqualification............................... 41
SECTION 6.12 Preferential Collection of Claims Against the Issuer........ 42
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Indenture Trustee Names
and Addresses of the Noteholders...................................... 42
SECTION 7.2 Preservation of Information; Communications
to the Noteholders.................................................... 42
SECTION 7.3 Reports by the Issuer........................................ 43
SECTION 7.4 Reports by the Indenture Trustee............................. 43
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.......................................... 44
SECTION 8.2 Trust Accounts............................................... 44
SECTION 8.3 General Provisions Regarding Accounts........................ 46
SECTION 8.4 Release of Trust Estate...................................... 46
SECTION 8.5 Opinion of Counsel........................................... 47
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders....... 48
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders...... 49
SECTION 9.3 Effect of Supplemental Indenture............................. 51
SECTION 9.4 Conformity with Trust Indenture Act.......................... 51
SECTION 9.5 Reference in Notes to Supplemental Indentures................ 51
SECTION 9.6 Execution of Supplemental Indentures......................... 51
iii
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Page
----
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.................................................. 51
SECTION 10.2 Form of Redemption Notice................................... 52
SECTION 10.3 Notes Payable on Redemption Date............................ 52
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc................... 53
SECTION 11.2 Form of Documents Delivered to the Indenture Trustee........ 55
SECTION 11.3 Actions of Noteholders...................................... 55
SECTION 11.4 Notices, etc., to the Indenture Trustee, the Issuer,
and Rating Agencies................................................... 56
SECTION 11.5 Notices to Noteholders; Waiver.............................. 57
SECTION 11.6 Alternate Payment and Notice Provisions..................... 57
SECTION 11.7 Conflict with Trust Indenture Act........................... 58
SECTION 11.8 Effect of Headings and Table of Contents.................... 58
SECTION 11.9 Successors and Assigns...................................... 58
SECTION 11.10 Separability............................................... 58
SECTION 11.11 Benefits of Indenture...................................... 58
SECTION 11.12 Legal Holidays............................................. 58
SECTION 11.13 GOVERNING LAW.............................................. 59
SECTION 11.14 Counterparts............................................... 59
SECTION 11.15 Recording of Indenture..................................... 59
SECTION 11.16 Trust Obligation........................................... 59
SECTION 11.17 No Petition................................................ 59
SECTION 11.18 Inspection................................................. 59
Exhibit A - Schedule of Receivables
Exhibit B - Form of Class A-1 Note
Exhibit C - Form of Class A-2 Note
Exhibit D - Form of Class A-3 Note
Exhibit E - Form of Class A-4 Note
Exhibit F - Form of Class A-5 Note
Exhibit G - Form of Note Depository Agreement
iv
<PAGE>
CROSS REFERENCE TABLE(1)
TIA Section Indenture Section
- ----------- -----------------
310 (a)(1)............................................... 6.11
(a)(2)............................................... 6.11
(a)(3)............................................... 6.10
(a)(4)............................................... N.A.(2)
(a)(5)............................................... 6.11
(b) ............................................ 6.8; 6.11
(c) ............................................ N.A.
311 (a) ............................................ 6.12
(b) ............................................ 6.12
(c) ............................................ N.A.
312 (a) ............................................ 7.1; 7.2
(b) ............................................ 7.2
(c) ............................................ 7.2
313 (a) ............................................ 7.4
(b)(1)............................................... 7.4
(b)(2)............................................... 7.4
(c) ............................................ 7.4
(d) ............................................ 7.3
314 (a) ............................................ 7.3
(b) ............................................ 3.6
(c)(1)............................................... 11.1
(c)(2)............................................... 11.1
(c)(3)............................................... 11.1
(d) ............................................ 11.1
(e) ............................................ 11.1
(f) ............................................ N.A.
315 (a) ............................................ 6.1
(b) ............................................ 6.5; 11.5
(c) ............................................ 6.1
(d) ............................................ 6.1
(e) ............................................ 5.13
316 (a) (last sentence).................................. 1.1
(a)(1)(A)............................................ 5.11
- --------
(1) Note: This Cross Reference Table shall not, for any purpose,
be deemed to be part of this Indenture.
(2) N.A. means Not Applicable.
<PAGE>
(a)(1)(B)............................................ 5.12
(a)(2)............................................... N.A.
(b) ............................................ 5.7
(c) ............................................ N.A.
317 (a)(1)............................................... 5.3
(a)(2)............................................... 5.3
(b) ............................................ 3.3
318 (a) ............................................ 11.7
<PAGE>
INDENTURE dated as of June 1, 1997, between CHASE MANHATTAN AUTO OWNER
TRUST 1997-B, a Delaware business trust (the "Issuer"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, solely as
trustee and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuer's Class A-1 5.744%
Money Market Asset Backed Notes (the "Class A-1 Notes"), Class A-2 6.100% Asset
Backed Notes (the "Class A-2 Notes"), Class A-3 6.350% Asset Backed Notes (the
"Class A-3 Notes"), Class A-4 6.500% Asset Backed Notes (the "Class A-4 Notes"
and Class A-5 6.600% Asset Backed Notes (the "Class A-5 Notes") and, together
with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as Indenture Trustee for the benefit of the Holders of the Notes and (only to
the extent expressly provided herein) the Certificateholders, all of the
Issuer's right, title and interest in, to and under (a) the Receivables listed
in Schedule A hereto, all proceeds thereof and all amounts and monies received
thereon on or after the Cutoff Date (including proceeds of the repurchase of
Receivables by the Seller pursuant to Section 3.2 of the Sale and Servicing
Agreement or the purchase of Receivables by the Servicer pursuant to Section 4.6
or 9.1 of the Sale and Servicing Agreement); (b) the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables and in any
repossessed Financed Vehicles; (c) Liquidation Proceeds and in any proceeds of
any extended warranties, theft and physical damage, credit life or credit
disability policies relating to the Financed Vehicles or the Obligors; (d) any
proceeds from Dealer repurchase obligations relating to the Receivables; (e)
funds on deposit from time to time in the Trust Accounts (including without
limitation the Reserve Account Initial Deposit), and in all investments and
proceeds thereof (but excluding all investment income on funds on deposit in the
Collection Account); (f) the Sale and Servicing Agreement; and (g) all present
and future claims, demands, causes and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
contract rights, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all
<PAGE>
or part of or are included in the proceeds of any of the foregoing
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction except as set
forth herein, and to secure compliance with the provisions of this Indenture,
all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Holders of the
Notes, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes and (only to the extent expressly provided
herein) Holders of the Certificates may be adequately and effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Capitalized terms are used in this Indenture
as defined in Section 1.1 to the Sale and Servicing Agreement dated as of June
1, 1997, between the Issuer and Chase Manhattan Bank USA, N.A., as Seller and
Servicer (the "Sale and Servicing Agreement").
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
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SECTION 1.3 Usage of Terms. With respect to all terms in this
Indenture, 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 Indenture; 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 Indenture unless
otherwise specified, and each such Exhibit is part of the terms of this
Indenture.
SECTION 1.4 Calculations of Interest. All calculations of interest made
hereunder shall be made on the basis of a year of 360 days of twelve 30-day
months, other than the calculation of interest accrued on the Class A-1 Notes at
the Class A-1 Interest Rate, which will be calculated on the basis of a 360-day
year based upon the actual number of days elapsed (which will be 25 days for the
April 1998 Distribution Date for the Class A-1 Notes).
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes and the Class A-5 Notes, in each case together
with the Indenture Trustee's or Authenticating Agent's certificate of
authentication, shall be in substantially the forms set forth in Exhibits B, C,
D, E and F, respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined to be appropriate by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note. Each Note shall be dated the date of its
authentication. The Notes shall be issuable as registered Notes in the minimum
denomination of $1,000 and in integral multiples thereof (except, if applicable,
for one Note representing a residual portion of each class which may be issued
in a denomination other than an integral multiple of $1,000).
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the date of
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authentication and delivery of such Notes or did not hold such offices at such
date. No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee or an Authenticating Agent by the manual signature of one of
its authorized signatories, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. The terms of the Notes set forth in
Exhibits B, C, D, E and F are part of the terms of this Indenture.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers or by any
other authorized signatory of the Issuer. The signature of any such Authorized
Officer on the Notes may be manual or facsimile.
The Indenture Trustee shall, upon written order of the Seller,
authenticate and deliver Class A-1 Notes for original issue in an aggregate
principal amount of $200,000,000.00, Class A-2 Notes for original issue in an
aggregate principal amount of $294,000,000.00, Class A-3 Notes for original
issue in the aggregate principal amount of $227,000,000.00, Class A-4 Notes for
original issue in the aggregate principal amount of $133,000,000.00 and Class
A-5 Notes for original issue in the aggregate principal amount of
$70,000,000.00. The respective aggregate principal amount of Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class A-5 Notes
outstanding at any time may not exceed such amounts, except as provided in
Section 2.5.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and at the direction of the Issuer, the Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the
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Issuer shall execute and the Indenture Trustee shall authenticate and deliver in
exchange therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. The Issuer shall
cause to be kept a register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Note Registrar shall provide for
the registration of the Notes and the registration of transfers of the Notes.
Chase shall initially be "Note Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided. In the event that, subsequent to the
date of issuance of the Notes, Chase notifies the Indenture Trustee that it is
unable to act as Note Registrar, the Indenture Trustee shall act, or the
Indenture Trustee shall, with the consent of the Issuer, appoint another bank or
trust company, having an office or agency located in the City of New York and
which agrees to act in accordance with the provisions of this Indenture
applicable to it, to act, as successor Note Registrar under this Indenture.
The Indenture Trustee may revoke such appointment and remove Chase as
Note Registrar if the Indenture Trustee determines in its sole discretion that
Chase failed to perform its obligations under this Indenture in any material
respect. Chase shall be permitted to resign as Note Registrar upon 30 days'
written notice to the Indenture Trustee, the Seller and the Servicer; provided,
however, that such resignation shall not be effective and Chase shall continue
to perform its duties as Note Registrar until the Indenture Trustee has
appointed a successor Note Registrar with the consent of the Issuer.
If a Person other than the Indenture Trustee is appointed by the Issuer
as the Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to
conclusively rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Holders of the
Notes and the principal amounts and number of such Notes.
An institution succeeding to the corporate agency business of the Note
Registrar shall continue to be the Note Registrar without the execution or
filing of any paper or any further act on the part of the Indenture Trustee or
such Note Registrar.
The Note Registrar shall maintain in Luxembourg (for so long as any
Notes are listed on the Luxembourg Stock Exchange) and in the City of New York
an office or offices or agency or agencies where Notes may be surrendered for
registration of transfer or
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exchange. The Note Registrar initially designates its corporate trust office
located at 450 West 33rd Street, New York, New York 10001-2697 as its office for
such purposes. The Note Registrar shall give prompt written notice to the
Indenture Trustee, the Seller, the Servicer and to the Noteholders of any change
in the location of such office or agency.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the Relevant UCC are met, the Issuer shall
execute, the Indenture Trustee shall authenticate and (if the Note Registrar is
different than the Indenture Trustee, then the Note Registrar shall) deliver to
the Noteholder, in the name of the designated transferee or transferees, one or
more new Notes, in any authorized denominations, of the same class and a like
aggregate principal amount.
At the option of the Holder, the Notes may be exchanged for other Notes
in any authorized denominations, of the same class and a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, if the requirements
of Section 8-401(1) of the Relevant UCC are met, the Issuer shall execute and
the Indenture Trustee shall authenticate and (if the Note Registrar is different
than the Indenture Trustee, then the Note Registrar shall) deliver to the
Noteholder, the Notes which the Noteholder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange of the
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
in which the Corporate Trust Office is located, or by a member firm of a
national securities exchange, and (ii) accompanied by such other documents as
the Indenture Trustee may require. Each Note surrendered for registration of
transfer or exchange shall be cancelled by the Note Registrar and disposed of by
the Indenture Trustee or Note Registrar in accordance with its customary
practice.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any
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registration of transfer or exchange of Notes, other than exchanges pursuant to
Section 2.3 or 9.5 not involving any transfer.
The preceding provisions of this section notwithstanding, the Issuer
shall not be required to make, and the Note Registrar need not register,
transfers or exchanges of the Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment in full with respect to
such Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Note Registrar, or the Note Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Note Registrar and the Indenture
Trustee such security or indemnity as may be required by them to hold the
Issuer, the Note Registrar and the Indenture Trustee harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the Indenture Trustee
that such Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the Relevant UCC are met, the Issuer shall
execute and the Indenture Trustee or an Authenticating Agent shall authenticate
and (if the Note Registrar is different from the Indenture Trustee, the Note
Registrar shall) deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of like class, tenor and
denomination; provided that if any such destroyed, lost or stolen Note, but not
a mutilated Note, shall have become or within seven days shall be due and
payable, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a bona fide purchaser of
the original Note in lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer, the Note Registrar and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from the Person to whom it was delivered or any Person taking such replacement
Note from such Person to whom such replacement Note was delivered or any
assignee of such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer, the Note Registrar or the
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.5 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the
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Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee, the
Note Registrar and any agent of the Issuer, the Indenture Trustee or the Note
Registrar may treat the Person in whose name any Note is registered (as of the
day of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note shall be overdue, and neither the
Issuer, the Indenture Trustee or the Note Registrar nor any agent of the Issuer,
the Indenture Trustee or the Note Registrar shall be bound by notice to the
contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest. (a)
The Notes shall accrue interest as provided in the forms of the Class A-1 Note,
the Class A-2 Note, the Class A-3 Note, the Class A-4 Note and the Class A-5
Note set forth in Exhibits B, C, D, E and F, respectively, and such interest
shall be payable on each Distribution Date as specified therein. Any installment
of interest or principal, if any, payable on any Note which is punctually paid
or duly provided for by the Issuer on the applicable Distribution Date shall be
paid to the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the preceding Record Date, by check mailed first-class, postage
prepaid, to such Person's address as it appears on the Note Register on such
Record Date, except that, unless Definitive Notes have been issued pursuant to
Section 2.12, with respect to the Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee, except for the final installment of
principal payable with respect to such Note on a Distribution Date or on a Note
Final Scheduled Distribution Date (and except for the Redemption Price for any
Note called for redemption pursuant to Section 10.1 which shall be payable as
provided below. The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments no
later than 12 noon, New York City time, on each Distribution Date as provided in
the forms of the Class A-1 Note, the Class A-2 Note, the Class A-3 Note, the
Class A-4 Note and the Class A-5 Note, set forth in Exhibits B, C, D, E, and F,
respectively. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable, if not
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previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if the Indenture Trustee or the Holders of the Notes
representing a majority of the Outstanding Amount of the Notes have declared the
Notes to be immediately due and payable in the manner provided in Section 5.2.
All principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. The Indenture Trustee shall notify
the Person in whose name a Note is registered at the close of business on the
Record Date preceding the Distribution Date on which the Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be (i) transmitted by facsimile on such Record Date if Book-Entry
Notes are outstanding or (ii) mailed as provided in Section 10.2 not later than
three Business Days after such Record Date if Definitive Notes are outstanding
and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Note Registrar, be delivered to the Note Registrar and
shall be promptly cancelled by the Note Registrar. The Issuer may at any time
deliver to the Note Registrar for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Note Registrar. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Notes may be held or disposed of by the Note
Registrar in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct that they be destroyed or
returned to it; provided that such direction is timely and the Notes have not
been previously disposed of by the Note Registrar.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, the
Indenture Trustee shall release property from the lien of this Indenture only
upon request of the Issuer accompanied by an Officer's Certificate, an Opinion
of Counsel and Independent Certificates in accordance with the TIA ss.ss.314(c)
and 314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates
to the effect that the TIA does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company (the initial Clearing Agency) by,
or on behalf of, the Issuer. Such Notes shall initially be registered on the
Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner will receive a Definitive Note representing such Note
Owner's interest in such
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Note, except as provided in Section 2.12. Unless and until Definitive Notes have
been issued to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar, the Paying Agent and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the Notes and
the giving of instructions or directions hereunder) as the sole Holder of the
Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of the Note Owners shall be exercised only through the
Clearing Agency (or to the extent the Note Owners are not Clearing Agency
Participants, through the Clearing Agency Participants through which such Note
Owners own Book-Entry Notes) and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants, and all references in this Indenture to actions by
the Noteholders shall refer to actions taken by the Clearing Agency upon
instructions from the Clearing Agency Participants, and all references in this
Indenture to distributions, notices, reports and statements to the Noteholders
shall refer to distributions, notices, reports and statements to the Clearing
Agency, as registered holder of the Notes, as the case may be, for distribution
to the Note Owners in accordance with the procedures of the Clearing Agency.
Pursuant to the Note Depository Agreement, unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of the Holders of the Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing Agency
shall be deemed to represent such percentage only to the extent that it has
received instructions to such effect from the Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such required percentage of
the beneficial interest in the Notes and has delivered such instructions to the
Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to the Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to
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be given to the Holders of the Notes to the Clearing Agency, and shall have no
obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (a) the Servicer advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Notes, and
the Servicer is unable to locate a qualified successor, (b) the Servicer at its
option advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (c) after the occurrence of an
Event of Default or an Event of Servicing Termination, the Note Owners
representing beneficial interests aggregating not less than a majority of the
Outstanding Amount of the Notes advise the Indenture Trustee and the Clearing
Agency through the Clearing Agency Participants in writing, and if the Clearing
Agency shall so notify the Indenture Trustee that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Note Owners, then the Clearing Agency shall notify all the Note Owners of
the occurrence of any such event and of the availability of Definitive Notes to
the Note Owners requesting the same. Upon surrender to the Note Registrar of the
typewritten Note or Notes representing the Book-Entry Notes by the Clearing
Agency, accompanied by re-registration instructions, the Issuer shall execute
and the Indenture Trustee shall authenticate and (if the Note Registrar is
different than the Indenture Trustee, then the Note Registrar shall) deliver the
Definitive Notes in accordance with the instructions of the Clearing Agency.
None of the Issuer, the Note Registrar or the Indenture Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of the
Definitive Notes, the Indenture Trustee shall recognize the Holders of the
Definitive Notes as the Noteholders.
SECTION 2.13 Authenticating Agent.
(a) The Indenture Trustee may appoint one or more authenticating agents
(each, an "Authenticating Agent") with respect to the Notes which shall be
authorized to act on behalf of the Indenture Trustee in authenticating the Notes
in connection with the issuance, delivery, registration of transfer, exchange or
repayment of the Notes. The Indenture Trustee hereby appoints Chase as
Authenticating Agent for the authentication of the Notes upon any registration
of transfer or exchange of such Notes. If Definitive Notes are outstanding and
for so long as any Notes are listed on the Luxembourg Stock Exchange, the
Indenture Trustee shall appoint an Authenticating Agent having an office or
agency in Luxembourg. Whenever reference is made in this Indenture to the
authentication of the Notes by the Indenture Trustee or the Indenture Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Indenture Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Indenture Trustee by
an Authenticating Agent.
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Each Authenticating Agent, other than Chase, shall be acceptable to the Issuer.
(b) Any institution succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Indenture
Trustee or such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Issuer. The Indenture
Trustee may at any time terminate the agency of an Authenticating Agent by
giving notice of termination to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time an Authenticating Agent shall cease to be acceptable to the
Indenture Trustee or the Issuer, the Indenture Trustee promptly may appoint a
successor Authenticating Agent with the consent of the Issuer. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless acceptable to the Issuer.
(d) The Servicer shall pay the Authenticating Agent from time to time
reasonable compensation for its services under this Section 2.13.
(e) The provisions of Sections 6.1, 6.2, 6.3, 6.4, 6.7 and 6.9 shall be
applicable, mutatis mutandis, to any Authenticating Agent.
(f) Pursuant to an appointment made under this Section 2.13, the Notes
may have endorsed thereon, in lieu of the Indenture Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Notes referred to in the within mentioned Indenture.
,
------------------------------
as Indenture Trustee
By:
----------------------------
Authorized Officer
or
<PAGE>
-----------------------------
as Authenticating Agent
for the Indenture Trustee,
-----------------------------
Authorized Officer
SECTION 2.14 Appointment of Paying Agent.
(a) The Indenture Trustee may appoint a Paying Agent with respect to
the Notes. The Indenture Trustee hereby appoints Chase as the initial Paying
Agent. If Definitive Notes are outstanding and for so long as any such
Definitive Notes are listed on the Luxembourg Stock Exchange, the Indenture
Trustee shall appoint a co-Paying Agent with an office or agency in Luxembourg
for the purpose of making distributions to the holders of such Definitive Notes.
The Paying Agent shall have the revocable power to withdraw funds from the
Accounts and make distributions to the Noteholders, the Servicer, the
Administrator and the Owner Trustee pursuant to Section 5.5 of the Sale and
Servicing Agreement. The Indenture Trustee may revoke such power and remove the
Paying Agent if the Indenture Trustee determines in its sole discretion that the
Paying Agent shall have failed to perform its obligations under this Indenture
in any material respect or for other good cause. Chase shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Seller and the
Indenture Trustee. In the event that Chase shall no longer be the Paying Agent,
the Indenture Trustee shall appoint a successor to act as Paying Agent (which
shall be a bank or trust company and may be the Indenture Trustee) with the
consent of the Seller, which consent shall not be unreasonably withheld. If at
any time the Indenture Trustee shall be acting as the Paying Agent, the
provisions of Sections 6.1, 6.3 and 6.4 shall apply, mutatis mutandis, to the
Indenture Trustee in its role as Paying Agent.
The Indenture Trustee will cause each Paying Agent, other than itself
and Chase, to execute and deliver to the Indenture Trustee an instrument in
which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect
to the Notes;
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(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
the Notes if at any time it ceases to meet the standards required to be
met by the Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(b) Chase in its capacity as initial Paying Agent hereunder agrees that
it (i) will hold all sums held by it hereunder for payment to the Noteholders in
trust for the benefit of the Noteholders entitled thereto until such sums shall
be paid to such Noteholders and (ii) shall comply with all requirements of the
Code regarding the withholding by the Indenture Trustee of payments in respect
of United States federal income taxes due from Note Owners.
(c) An institution succeeding to the corporate agency business of the
Paying Agent shall continue to be the Paying Agent without the execution or
filing of any paper or any further act on the part of the Indenture Trustee or
such Paying Agent.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer will duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. Without limiting the foregoing, subject
to Section 8.2(c), the Issuer will cause to be distributed all amounts on
deposit in the Note Distribution Account on a Distribution Date deposited
therein pursuant to the Sale and Servicing Agreement (i) for the benefit of the
Class A-1 Notes, to the holders of the Class A-1 Notes, (ii) for the benefit of
the Class A-2 Notes, to the holders of the Class A-2 Notes, (iii) for the
benefit of the Class A-3 Notes, to the holders of the Class A-3 Notes, (iv) for
the benefit of the Class A-4 Notes, to the holders of the Class A-4 Notes and
(v) for the benefit of the Class A-5 Notes, to the holders of the Class A-5
Notes. Amounts properly withheld under the Code by any Person from a payment to
any Noteholder of interest and/or principal shall be considered as having been
paid by the Issuer to such Noteholder for all purposes of this Indenture.
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SECTION 3.2 Maintenance of Office or Agency. The Issuer will maintain
in Luxembourg (if Definitive Notes are outstanding and for so long as such
Definitive Notes are listed on the Luxembourg Stock Exchange) and the City of
New York, an office or agency where Notes may be surrendered for registration of
transfer or exchange. The Issuer hereby initially appoints the Note Registrar to
serve as its agent for the foregoing purposes. The Issuer will give prompt
written notice to the Indenture Trustee of the location, and of any change in
the location, of any such office or agency. If at any time the Issuer shall fail
to maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and
demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Sections 8.2(a) and (b), all payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection Account
and the Note Distribution Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Indenture Trustee or by a Paying Agent, and no
amounts so withdrawn from the Collection Account and the Note Distribution
Account for payments on the Notes shall be paid over to the Issuer except as
provided in this Section 3.3.
On or before each Distribution Date and Redemption Date, at the
direction of the Servicer in accordance with Section 5.5 of the Sale and
Servicing Agreement, the Indenture Trustee or the Paying Agent shall deposit in
the Note Distribution Account an aggregate sum sufficient to pay the amounts
then becoming due under the Notes, such sum to be held in trust for the benefit
of the Persons entitled thereto and (unless the Paying Agent is the Indenture
Trustee or deposit was made by the Indenture Trustee) shall promptly notify the
Indenture Trustee of its action or failure so to act.
The Issuer may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such a
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on its request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts
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so paid to the Issuer), and all liability of the Indenture Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense of the Issuer cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer. The
Indenture Trustee shall also adopt and employ, at the expense of the Issuer, any
other reasonable means of notification of such repayment (including, but not
limited to, mailing notice of such repayment to the Holders whose notes have
been called but have not been surrendered for redemption or whose right to or
interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the provisions
of Section 3.10, the Issuer will keep in full effect its existence, rights and
franchises as a business trust under the laws of the State of Delaware (unless
it becomes, or any successor to the Issuer hereunder is or becomes, organized
under the laws of any other state or of the United States of America, in which
case the Issuer will keep in full effect its existence, rights and franchises
under the laws of such other jurisdiction) and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Indenture, the Notes, the Collateral and each other instrument or agreement
included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate. The Issuer will from time to
time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest
(and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture;
(c) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(d) preserve and defend title to the Trust Estate and
the rights of the Indenture Trustee and the Noteholders in
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such Trust Estate against the claims of all persons and
parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be filed by the Indenture Trustee pursuant to this
Section.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation statements, as
are necessary to perfect and make effective the lien and security interest of
this Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before March 31 of each calendar year, commencing with March
31, 1998, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as are necessary to maintain the
perfection of the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain the perfection of such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, rerecording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the perfection of the lien and security
interest of this Indenture until March 31 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a)
The Issuer will not take any action and will use its best efforts not to permit
any action to be taken by others that would release any Person from any of such
Person's material covenants or obligations under any instrument or agreement
included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, any other Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it
in performing its duties under this Indenture, and any performance
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of such duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer and the Administrator to
assist the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Trust Estate,
including but not limited to preparing (or causing to be prepared) and filing
(or causing to be filed) all UCC financing statements and continuation
statements required to be filed by the terms of this Indenture and the Sale and
Servicing Agreement in accordance with and within the time periods provided for
herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of an Event of
Servicing Termination under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies thereof in
accordance with Section 11.4, and shall specify in such notice the action, if
any, the Issuer is taking in respect of such default. If an Event of Servicing
Termination shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Sale and Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that, unless such action is
specifically permitted hereunder or under the other Basic Documents, it will
not, without the prior written consent of the Indenture Trustee or the Holders
of at least a majority of Outstanding Amount of the Notes, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral or
the Basic Documents, or waive timely performance or observance by the Servicer
or the Seller under the Sale and Servicing Agreement; provided that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment, without the
consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by the Indenture
Trustee or such Holders, the Issuer agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name and at its
own expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate under the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
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(a) except as expressly permitted by this Indenture or the
other Basic Documents, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those included
in the Trust Estate, unless directed to do so by the Indenture Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust
Estate; or
(c) (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly permitted
hereby, (ii) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the
Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens and other
liens that arise by operation of law, in each case on a Financed
Vehicle and arising solely as a result of an action or omission of the
related Obligor) or (iii) permit the lien of this Indenture not to
constitute a valid first priority (other than with respect to any such
tax, mechanics' or other lien) security interest in the Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee on or before March 31 of each year, commencing March
31, 1998, and otherwise in compliance with the requirements of TIA Section
314(a)(4), an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that
(a) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and
covenants in all material respects under this Indenture throughout such
year, or, if there has been a default in the compliance of any such
condition or covenant, specifying each such default known to such
Authorized Officer and the nature and status thereof.
SECTION 3.10 The Issuer May Consolidate, Etc. Only on Certain
Terms. (a) The Issuer shall not consolidate or merge with or into
any other Person, unless
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(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State
thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment of
the principal of and interest on all the Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply
with this Section 3.10 and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not convey or transfer all or
substantially all of its properties or assets, including those included in the
Trust Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State thereof, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all the Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or
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observed, all as provided herein, (C) expressly agree by means
of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights
of the Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend and hold
harmless the Issuer against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E)
expressly agree by means of such supplemental indenture that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply with
this Section 3.10 and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer in accordance with Section 3.10(b), Chase Manhattan Auto Owner Trust
1997-B will be released from every covenant and agreement of this Indenture to
be observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the Indenture Trustee from
the Person acquiring such assets and properties
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stating that Chase Manhattan Auto Owner Trust 1997-B is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the other Basic
Documents, issuing the Notes and the Certificates, making payments thereon, and
such other activities that are necessary, suitable or desirable to accomplish
the foregoing or are incidental to the purposes as set forth in Section 2.3 of
the Trust Agreement.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for money borrowed in respect of the Notes or in accordance
with the Basic Documents.
SECTION 3.14 Servicer's Obligations. The Issuer shall use its best
efforts to cause the Servicer to comply with the Sale and Servicing Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by the Sale and Servicing Agreement or this Indenture, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuming another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty) other than the purchase of the Receivables and
related property pursuant to the Sale and Servicing Agreement.
SECTION 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (b) redeem, purchase, retire, or otherwise acquire for
value any such ownership or equity interest or security or (c) set aside or
otherwise segregate any amounts for any such purpose; provided that the Issuer
may make, or cause to be made, distributions to the Servicer, the Seller, the
Owner Trustee, the Administrator, the Indenture Trustee and the
Certificateholders as permitted by, and to the extent funds are available for
such purpose under, the Basic Documents. The Issuer will not, directly
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or indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture and the other Basic Documents.
SECTION 3.18 Notice of Events of Default. The Issuer agrees to give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default, any Event of Servicing Termination and each default on the part of the
Seller of its obligations under the Sale and Servicing Agreement.
SECTION 3.19 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (a)
rights of registration of transfer and exchange, (b) substitution of mutilated,
destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments
of principal thereof and interest thereon, (d) Sections 3.2, 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.15, 3.16 and 3.18, (e) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee
under Sections 4.2 and 4.4) and (f) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when
(i) either
(A) all Notes theretofore authenticated and delivered
(other than (1) the Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in
Section 2.5 and (2) the Notes for which payment money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have
been delivered to the Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(1) have become due and payable,
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(2) will become due and payable at their
respective Note Final Scheduled Distribution Dates
within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer,
and the Issuer, in the case of clauses (1), (2) or (3) of
Section 4.1(i)(B), has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire unpaid principal
and accrued interest on such Notes not theretofore delivered
to the Indenture Trustee for cancellation when due on their
respective Note Final Scheduled Distribution Dates or
Redemption Date (if the Notes shall have been called for
redemption pursuant to Section 10.1);
(ii) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements
of Section 11.1 and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.1(i)(B) shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Sale and Servicing Agreement or required by
law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied
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according to Section 3.3 and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
SECTION 4.4 Duration of the Position of the Indenture Trustee for the
Benefit of Certificateholders. Notwithstanding (i) the earlier payment in full
of all principal and interest due to the Noteholders under the terms of the
Notes of each class, (ii) the cancellation of such Notes pursuant to Section 2.8
and (iii) the discharge of the Indenture Trustee's duties hereunder with respect
to such Notes, the Indenture Trustee shall continue to act in the capacity of
the Indenture Trustee hereunder for the benefit of the Certificateholders and
the Indenture Trustee, for the benefit of the Certificateholders, shall comply
with its obligations under Sections 5.1, 5.5, 5.6, 7.5, 8.1 and 8.2 of the Sale
and Servicing Agreement, as appropriate, until such time as all distributions in
respect of the Certificate Balance and interest due to the Certificateholders
have been paid in full.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Note
when the same becomes due and payable, and such default shall
continue for a period of five days;
(b) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes
due and payable;
(c) default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with) which
default materially and adversely affects the rights of the Noteholders,
and which default shall continue or not be cured for a period of 30
days (or for such longer period, not in excess of 90 days, as may be
reasonably necessary to remedy such default; provided that such default
is capable of remedy within 90 days or less and the Servicer on behalf
of the Issuer delivers an Officer's Certificate to the Indenture
Trustee to the effect that the Issuer has commenced, or will promptly
commence and diligently pursue, all reasonable efforts to remedy such
default) after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or to the Issuer and
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the Indenture Trustee by the Holders of at least 25% of the Outstanding
Amount of the Notes, a written notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; and
(d) an Insolvency Event shall have occurred for the Issuer.
The Issuer shall deliver to the Indenture Trustee, within five days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clause (c), its status and what action
the Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default shall occur and be continuing, then and in every such case the
Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Notes may declare all the Notes to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if given by the Noteholders), and upon any such declaration
the unpaid principal amount of such Notes, together with accrued and unpaid
interest thereon through the date of acceleration, shall become immediately due
and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V, provided,
the Holders of the Notes representing a majority of the Outstanding Amount of
the Notes, by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences; provided, that, no such
rescission shall affect any subsequent default or impair any right consequent
thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by the
Indenture Trustee. (a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, the Issuer will, upon demand of the Indenture
Trustee, pay to it, for the benefit of the Holders of the Notes, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest, at
the rate borne by the Notes, and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
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(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, proceedings under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in the case of any other comparable judicial proceedings relative to the
Issuer or other obligor upon the Notes, or to the creditors or property of the
Issuer or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of negligence, bad
faith or willful misconduct) and of the Noteholders allowed in such
proceedings;
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(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or person performing similar functions in
any such proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of the Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of
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the Notes, and it shall not be necessary to make any Noteholder a party to any
such proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall have
occurred and be continuing and the Notes have been accelerated under Section
5.2, the Indenture Trustee may do one or more of the following (subject to
Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect
to the Trust Estate;
(iii) exercise any remedies of a secured party under the
Relevant UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights
or interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided that the Indenture Trustee may not sell or otherwise liquidate
the Trust Estate following an Event of Default, unless (A) the Holders
of 100% of the Outstanding Amount of the Notes consent thereto, (B) the
proceeds of such sale or liquidation distributable to the Noteholders
are sufficient to discharge in full all amounts then due and unpaid
upon such Notes for principal and interest, or (C)(1) there has been an
Event of Default described in Section 5.1(a) or (b), (2) the Indenture
Trustee determines that the Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been declared
due and payable, and (3) the Indenture Trustee obtains the consent of
Holders of 66-2/3% of the Outstanding Amount of the Notes. In
determining such sufficiency or insufficiency with respect to clause
(B) and (C), the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm
of national reputation as to the feasibility of such proposed action
and as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out such money or property (and other amounts
including amounts held on deposit in the Reserve Account) held as Collateral for
the benefit of the Noteholders in the following order:
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FIRST: to the Indenture Trustee for amounts due under
Section 6.7; and
SECOND: to the Collection Account for distribution
pursuant to Section 9.1(b) of the Sale and Servicing
Agreement.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount
of the Notes have made written request to the Indenture Trustee to
institute such proceeding in respect of such Event of Default in its
own name as the Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to
institute such proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of the Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of the Notes or to
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obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of the
Notes, each representing less than a majority of the Outstanding Amount of the
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as through no such proceeding had
been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
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SECTION 5.11 Control by Noteholders. The Holders of a majority of the
Outstanding Amount of the Notes shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Trust Estate shall be
by the Holders of the Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any direction to the Indenture Trustee
by Holders of the Notes representing less than 100% of the Outstanding
Amount of the Notes to sell or liquidate the Trust Estate shall be of
no force and effect;
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of the Notes of not less than a majority of the Outstanding Amount of
the Notes may, on behalf of all such Holders, waive any past Default or Event of
Default and its consequences except a Default (a) in payment of principal of or
interest on any of the Notes or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note. In the case of any such waiver, the Issuer, the Indenture Trustee and the
Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto. The
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Issuer shall give prompt written notice of any waiver to the Rating Agencies.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
the Indenture Trustee, the filing by any party litigant in such Proceeding of an
undertaking to pay the costs of such Proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes, or, (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer.
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so and at the
Administrator's expense, the Issuer agrees to take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the
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Seller and the Servicer, as applicable, of each of their respective obligations
to the Issuer under or in connection with the Sale and Servicing Agreement in
accordance with the terms thereof, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default on
the part of the Seller or the Servicer thereunder and the institution of legal
or administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their respective obligations under the Sale
and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall, foreclose upon
its security interest in the Issuer's rights under the Sale and Servicing
Agreement and exercise all rights, remedies, powers, privileges and claims of
the Issuer against the Seller or the Servicer under or in connection with the
Sale and Servicing Agreement, including the right or power to take any action to
compel or secure performance or observance by the Seller or the Servicer of each
of their respective obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Sale and Servicing Agreement, and any right of the Issuer to take such action
shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of the Indenture Trustee. (a) The Indenture Trustee,
both prior to and after the occurrence of an Event of Default, shall undertake
to perform such duties and only such duties as are specifically set forth in
this Indenture and the Sale and Servicing Agreement. If an Event of Default
known to the Indenture Trustee has occurred and is continuing, the Indenture
Trustee shall exercise the rights and powers vested in it by this Indenture and
the Sale and Servicing Agreement and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs; provided, however, that if the
Indenture Trustee shall assume the duties of the Servicer pursuant to Section
8.2 of the Sale and Servicing Agreement, the Indenture Trustee in performing
such duties shall use the degree of skill and attention customarily exercised by
a servicer with respect to automobile receivables that it services for itself.
The Indenture Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments furnished
to the Indenture Trustee that shall be
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specifically required to be furnished pursuant to any provision of this
Indenture or the Sale and Servicing Agreement, shall examine them to determine
whether they conform to the requirements of this Indenture or the Sale and
Servicing Agreement; provided, however, that the Indenture Trustee shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Servicer to the Indenture Trustee pursuant to this Indenture or the Sale and
Servicing Agreement.
(b) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act, or its own bad faith or wilful malfeasance; provided, however,
that:
(i) prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default, the Indenture Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and the Sale and Servicing
Agreement, and no implied covenants or obligations shall be read into
this Indenture or the Sale and Servicing Agreement against the
Indenture Trustee, and in the absence of bad faith on its part or
manifest error, the Indenture Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this Indenture or the
Sale and Servicing Agreement; and
(ii) The Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts nor shall the Indenture Trustee be liable with respect
to any action it takes or omits to take in good faith in accordance
with this Indenture or in accordance with a direction received by it
pursuant to Section 5.11.
(c) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(d) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(e) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not assured to it, and none of the provisions contained in this Indenture shall
in any event require the
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Indenture Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer (including its obligations as
custodian) under this Indenture except during such time, if any, as the
Indenture Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
the Sale and Servicing Agreement.
(f) The Indenture Trustee shall not be charged with knowledge of an
Event of Default until such time as a Responsible Officer shall have actual
knowledge or have received written notice thereof.
(g) Except for actions expressly authorized by this Indenture or, based
upon an Opinion of Counsel, in the best interests of the Noteholders, the
Indenture Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or to impair the value of any
Receivable.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
SECTION 6.2 Rights of the Indenture Trustee. (a) The Indenture Trustee
may conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Opinion of Counsel. The Indenture Trustee shall not be liable for any
action it takes, suffers or omits to take in good faith in reliance on the
Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder. The Indenture Trustee shall have no duty to monitor
the performance of the Issuer.
(d) The Indenture Trustee shall not be personally liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the written
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any
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action taken, omitted or suffered by it hereunder in good faith and in
accordance with the written advice or opinion of such counsel. A copy of such
written advice or Opinion of Counsel shall be provided to the Seller, the
Servicer and the Rating Agencies.
(f) [Reserved].
(g) Prior to the occurrence of an Event of Default and after the curing
of all Events of Default that may have occurred, the Indenture Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, or other paper or document, unless
requested in writing to do so by Holders of the Notes evidencing not less than
25% of the Outstanding Amount of the Notes; provided, however, that if the
payment within a reasonable time to the Indenture Trustee of the costs,
expenses, or liabilities likely to be incurred by it in the making of such
investigation shall be, in the opinion of the Indenture Trustee, not reasonably
assured to the Indenture Trustee by the security afforded to it by the terms of
this Indenture, the Indenture Trustee may require reasonable indemnity against
such cost, expense, or liability or payment of such expenses as a condition
precedent to so proceeding. The reasonable expense of every such examination
shall be paid by the Issuer or by the Servicer at the direction of the Issuer
or, if paid by the Indenture Trustee, shall be reimbursed by the Issuer or by
the Servicer at the direction of the Issuer upon demand. Nothing in this clause
(g) shall affect the obligation of the Issuer or the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors.
SECTION 6.3 Individual Rights of the Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of the Notes and may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not the Indenture Trustee. Any Paying
Agent, the Note Registrar, co-registrar or co-paying agent may do the same with
like rights. However, the Indenture Trustee must comply with Sections 6.11 and
6.12.
SECTION 6.4 The Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, shall not be accountable for the
Issuer's use of the proceeds from the Notes, and shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is either actually known or written notice of the existence thereof
has been delivered to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of the Default within 90
days after such
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knowledge or notice occurs. Except in the case of a Default in accordance with
the provisions of Section 313(c) of the TIA in payment of principal of or
interest on any Note (including payments pursuant to the mandatory redemption
provisions of such Note), the Indenture Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interest of the Noteholders.
SECTION 6.6 Reports by the Indenture Trustee to Holders. Within the
prescribed period of time for tax reporting purposes after the end of each
calendar year during the term of this Indenture, the Indenture Trustee shall
deliver to each Noteholder such information as may be reasonably required to
enable such Holder to prepare its United States federal, state and local income
or franchise tax returns for such calendar year.
SECTION 6.7 Compensation and Indemnity. The Issuer shall cause the
Servicer pursuant to the Sale and Servicing Agreement to pay to the Indenture
Trustee from time to time reasonable compensation for its services. The
Indenture Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Issuer shall cause the Servicer pursuant
to the Sale and Servicing Agreement to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall cause the Servicer pursuant to the Sale and Servicing Agreement
to indemnify the Indenture Trustee against any and all loss, liability or
expense (including the fees of either in-house counsel or outside counsel, but
not both) incurred by it in connection with the administration of this trust and
the performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer and the Servicer promptly of any claim for which it may seek indemnity.
The Servicer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(d) with respect to the Issuer, the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of the Indenture Trustee. (a) The Indenture
Trustee may give notice of its intent to resign at any time by so notifying the
Issuer. The Holders of a majority in Outstanding Amount of the Notes may remove
the Indenture Trustee by so notifying the Indenture Trustee and may appoint a
successor Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
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(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) the Indenture Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to resign or is
removed or if a vacancy exists in the office of the Indenture Trustee for any
reason (the Indenture Trustee in such event being referred to herein as the
retiring Indenture Trustee), the Issuer shall promptly appoint a successor
Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer and
thereupon the resignation or removal of the Indenture Trustee shall become
effective, and the successor Indenture Trustee, without any further act, deed or
conveyance shall have all the rights, powers and duties of the Indenture Trustee
under this Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as the Indenture Trustee to the successor
Indenture Trustee.
(d) If a successor Indenture Trustee does not take office within 60
days after the retiring Indenture Trustee gives notice of its intent to resign
or is removed, the retiring Indenture Trustee, the Issuer or the Holders of a
majority in Outstanding Amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Any resignation or removal of the Indenture Trustee and appointment
of a successor Indenture Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Indenture Trustee pursuant to Section 6.8(c) and payment of all fees
and expenses owed to the outgoing Indenture Trustee.
(g) Notwithstanding the resignation or removal of the Indenture Trustee
pursuant to this Section, the Issuer's and the Servicer's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture Trustee.
The Indenture Trustee shall not be liable for the acts or omissions of any
successor Indenture Trustee.
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SECTION 6.9 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee. The Indenture
Trustee shall provide the Issuer and the Rating Agencies prior written notice of
any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor Indenture Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor Indenture Trustee may authenticate such Notes
either in the name of any predecessor Indenture Trustee hereunder or in the name
of the successor Indenture Trustee; and in all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or in this Indenture with respect to the certificate of authentication of
the Indenture Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Issuer may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all instruments to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Issuer, and to vest in such Person
or Persons, in such capacity and for the benefit of the Noteholders, such title
to the Issuer, or any part hereof, and, subject to the other provisions of this
Section, such power, duties, obligations, rights and trusts as the Indenture
Trustee may consider necessary or desirable. The Administrator will pay all
reasonable fees and expenses of any co-trustee or co-trustees or separate
trustee or separate trustees. The appointment of any separate trustee or
co-trustee shall not absolve the Indenture Trustee of its obligations under this
Indenture. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as an Indenture Trustee under Section 6.11, and no
notice to the Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it
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being understood that such separate trustee or co-trustee is not
authorized to act separately without the Indenture Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed the Indenture
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Issuer or the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder, including
acts or omissions of predecessor or successor trustees; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee (with a copy given to the Issuer).
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA ss.310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $100,000,000 as of the
last day of the most recent fiscal quarter for such institution and shall be
subject to examination or supervision by federal or state authorities. The
long-term unsecured debt of the Indenture Trustee shall at all times be rated
not lower than "BBB-" by Standard & Poor's and Fitch (if rated by
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Fitch) and Baa3 by Moody's or such other ratings as are acceptable to the Rating
Agencies. The Indenture Trustee shall comply with TIA ss.310(b), including the
optional provision permitted by the second sentence of TIA ss.310(b)(9);
provided that there shall be excluded from the operation of TIA ss.310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in the TIA
ss.310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against the Issuer. The
Indenture Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss.311(b). A Indenture Trustee who has resigned or
been removed shall be subject to TIA ss.311(a) to the extent indicated therein.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Indenture Trustee Names and
Addresses of the Noteholders. The Issuer will furnish or cause to be furnished
to the Indenture Trustee (a) not more than five days after each Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the names
and addresses of the Holders as of such Record Date and (b) at such other times
as the Indenture Trustee may request in writing, within 14 days after receipt by
the Issuer of any such request, a list of similar form and content as of a date
not more than 10 days prior to the time such list is furnished, provided that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION 7.2 Preservation of Information; Communications to the
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of the Holders of Notes received by
the Indenture Trustee in its capacity as the Note Registrar. The Indenture
Trustee may destroy any list furnished to it as provided in such Section 7.1
upon receipt of a new list so furnished.
(b) The Noteholders may communicate pursuant to TIA ss.312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA ss.312(c).
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SECTION 7.3 Reports by the Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee and, for so long as any
Notes are listed thereon, the Luxembourg Stock Exchange, within 15 days
after the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and for so long as any
Notes are listed thereon, the Luxembourg Stock Exchange and the
Commission in accordance with rules and regulations prescribed from
time to time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
ss.313(c)), such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii) of
this Section 7.3(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
SECTION 7.4 Reports by the Indenture Trustee. If required by TIA ss.
313(a), within 60 days after each March 31, beginning with March 31, 1998, the
Indenture Trustee shall mail to each Noteholder as required by TIA ss. 313(c) a
brief report dated as of such date that complies with TIA ss. 313(a). The
Indenture Trustee also shall comply with TIA ss. 313(b). A copy of each report
at the time of its mailing to Noteholders shall be filed by the Indenture
Trustee with the Commission and each stock exchange, if any, on which the Notes
are listed. The Issuer shall notify the Indenture Trustee if and when the Notes
are listed on any stock exchange. On each Distribution Date, the Indenture
Trustee shall include with each payment to each Noteholder a copy of the
statement for the related Collection Period provided to the Indenture Trustee
pursuant to Section 5.8 of the Sale and Servicing Agreement.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise provided herein,
the Indenture Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance of any fiscal agent or
other intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply
all such money received by it as provided in this Indenture and the Sale and
Servicing Agreement. Except as otherwise provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided in
Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer and the Seller to establish and maintain, in the
name of the Indenture Trustee, for the benefit of the Noteholders and/or the
Certificateholders, as applicable, the Trust Accounts as provided in Sections
5.1 and 5.6 of the Sale and Servicing Agreement.
(b) Before each Distribution Date, the Servicer and the Seller are
required to deposit the Total Distribution Amount with respect to the preceding
Collection Period in the Collection Account pursuant to Sections 5.2 and 5.4 of
the Sale and Servicing Agreement. On each Deposit Date, the Indenture Trustee
shall withdraw the Reserve Account Transfer Amount for the related Distribution
Date from the Reserve Account and deposit it in the Collection Account in
accordance with Section 5.5(b) of the Sale and Servicing Agreement. On or before
each Distribution Date, the Indenture Trustee or the Paying Agent on behalf of
the Indenture Trustee shall transfer the Noteholders' Distributable Amount for
such Distribution Date from the Collection Account to the Note Distribution
Account in accordance with Section 5.5(c) of the Sale and Servicing Agreement.
(c) Not later than 12:00 noon, New York City time, on each Distribution
Date, the Indenture Trustee or the Paying Agent on behalf of the Indenture
Trustee shall distribute all amounts on deposit in the Note Distribution Account
to Noteholders to the extent of amounts due and unpaid on the Notes for
principal and interest in the following amounts and in the following order of
priority:
(i) to accrued and unpaid interest on the Notes;
provided that if there are not sufficient funds in the
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Note Distribution Account to pay the entire amount of accrued
and unpaid interest then due on the Notes, the amount in the
Note Distribution Account shall be applied to the payment of
such interest on the Notes pro rata on the basis of the total
such interest due on the Notes;
(ii) unless otherwise provided in clause (vii) below,
to the Holders of the Class A-1 Notes until the Outstanding
Amount of the Class A-1 Notes is reduced to zero;
(iii) unless otherwise provided in clause (vii)
below, to the Holders of the Class A-2 Notes until the
Outstanding Amount of the Class A-2 Notes is reduced to zero;
(iv) unless otherwise provided in clause (vii) below,
to the Holders of the Class A-3 Notes until the Outstanding
Amount of the Class A-3 Notes is reduced to zero;
(v) unless otherwise provided in clause (vii) below,
to the Holders of the Class A-4 Notes until the Outstanding
Amount of the Class A-4 Notes is reduced to zero; and
(vi) unless otherwise provided in clause (vii) below,
to the Holders of the Class A-5 Notes until the Outstanding
Amount of the Class A-5 Notes is reduced to zero;
(vii) if the Notes have been declared immediately due
and payable as provided in Section 5.2, any amounts remaining
in the Note Distribution Account after the applications
described in Section 8.2(c)(i) shall be applied to the
repayment of principal on each of the Notes pro rata on the
basis of the respective unpaid principal amount of each such
Note.
(d) Notwithstanding anything in this Section 8.2 to the contrary (but
subject to clause (vii) of Section 8.2(c)), if the Class A-1 Event has occurred,
amounts deposited into the Note Distribution Account with respect to the Class
A-1 Notes on the July 1998 Distribution Date with respect to the Class A-1 Notes
will be distributed pursuant to clauses (i) and (ii) of Section 8.2(c) on such
date, and amounts deposited into the Note Distribution Account with respect to
the Class A-2, Class A-3, Class A-4 and Class A-5 Notes on the applicable July
1998 Distribution Date with respect to the Class A-2 Notes, the Class A-3 Notes,
Class A-4 Notes and the Class A-5 Notes will be distributed pursuant to clauses
(i), (iii), (iv), (v) and (vi) of Section 8.2(c).
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SECTION 8.3 General Provisions Regarding Accounts. (a) In accordance
with Section 5.1(b) and Section 5.6(b) of the Sale and Servicing Agreement, all
funds in the Collection Account and the Reserve Account shall be invested in
Permitted Investments upon written direction of the Servicer or the Seller, as
applicable. All income or other gain from investments of moneys deposited in
such Trust Accounts shall be paid as provided in the Sale and Servicing
Agreement, and any loss resulting from such investments shall be charged to such
account. The Servicer or the Seller, as applicable, will not direct the
Indenture Trustee to make any investment of any funds or to sell any investment
held in any of such Trust Accounts unless the security interest Granted and
perfected in such account will continue to be perfected in such investment or
the proceeds of such sale, in either case without any further action by any
Person, and, in connection with any direction to the Indenture Trustee to make
any such investment or sale, if requested by the Indenture Trustee, the Servicer
or the Seller, as applicable, shall deliver to the Indenture Trustee an Opinion
of Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(b), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Permitted Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Permitted Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
(c) If (i) the Servicer or the Seller, as applicable, shall have failed
to give investment directions for any funds on deposit in the Collection Account
or the Reserve Account, as the case may be, to the Indenture Trustee by 11:00
a.m. New York City time (or such other time as may be agreed by the Servicer or
the Seller, as applicable, and the Indenture Trustee) on any Business Day, or
(ii) a Default or Event of Default shall have occurred and be continuing with
respect to the Notes but the Notes shall not have been declared due and payable
pursuant to Section 5.2, or, if such Notes shall have been declared due and
payable following an Event of Default, amounts collected or receivable from the
Trust Estate are being applied in accordance with Section 5.5 as if there had
not been such a declaration, then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in such Trust Accounts in one or
more Permitted Investments. The Indenture Trustee shall not be liable for losses
in respect of such investments in Permitted Investments that comply with the
requirements of the Basic Documents except for losses attributable to the
Indenture Trustee's failure to make payments on such Permitted Investments
issued by the Indenture Trustee, in its commercial capacity as principal obligor
and not as trustee, in accordance with their terms.
SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of
its fees and expenses pursuant to Section 6.7, the
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Indenture Trustee may, and when required by the provisions of this Indenture
shall, execute instruments to release property from the lien of this Indenture,
or convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding, and all sums due the Indenture Trustee pursuant to Section 6.7 have
been paid, release any remaining portion of the Trust Estate that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Note Distribution
Account. The Indenture Trustee shall (i) release any remaining portion of the
Trust Estate that secures the Certificates from the lien of this Indenture and
(ii) release to the Issuer or any other Person entitled thereto any funds then
on deposit in the Reserve Account or the Collection Account only to such time as
(x) there are no Notes Outstanding, (y) all payments in respect of Certificate
Balance and interest due to the Certificateholders have been paid in full and
(z) all sums due to the Indenture Trustee pursuant to Section 6.7 have been
paid. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and (if required
by the TIA) Independent Certificates in accordance with TIA ss.ss. 314(c) and
314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee may also require as a condition of such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all such action will not materially and
adversely impair the security for the Notes or the rights of the Noteholders;
provided, however that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders. (a)
Without the consent of the Holders of any Notes but with prior notice to the
Rating Agencies (and, for so long as any Notes are listed thereon, to the
Luxembourg Stock Exchange) by the Issuer, when authorized by an Issuer Request,
the Issuer and the Indenture Trustee at any time and from time to time, may
enter into one or more indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Holders of the Notes, or to surrender any right
or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not materially and adversely
affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this
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Indenture such other provisions as may be expressly required by the
TIA.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but with
prior notice to the Rating Agencies (and for so long as any Notes are listed
thereon, to the Luxembourg Stock Exchange) by the Issuer, as evidenced to the
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided
that such action shall not, as evidenced by an Opinion of Counsel, materially
and adversely affect the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders.
The Issuer and the Indenture Trustee, when authorized by the Issuer, also may,
with prior notice to the Rating Agencies (and for so long as any Notes are
listed thereon, to the Luxembourg Stock Exchange) and with the consent of the
Holders of a majority of the Outstanding Amount of the Notes, by Act of such
Holders delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; provided that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Note affected
thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with respect
thereto, change the provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes on or
after the respective due dates thereof (or, in the case of redemption,
on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders
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of which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to sell or liquidate the
Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or any of the other Basic Documents cannot
be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation) or to affect the rights of the Holders of the Notes to the
benefit of any provisions for the mandatory redemption of the Notes
contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein
or in the Basic Documents, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
The Indenture Trustee may determine whether any Notes would be affected
by any supplemental indenture and any such determination shall be conclusive
upon the Holders of all Notes, whether theretofore or thereafter authenticated
and delivered hereunder. The Indenture Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Noteholders shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
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notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be an be deemed to be part of the terms and
conditions of this Indenture and the Notes affected thereby for any and all
purposes.
SECTION 9.4 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall comply in all respects with the TIA.
SECTION 9.5 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so require, new Notes so modified as to conform, in the opinion of
the Indenture Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article IX or the modifications thereby of the trusts created by this
Indenture the Indenture Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Indenture Trustee's own rights, duties or immunities under this Indenture or
otherwise.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Class A-5 Notes are subject to
redemption in whole, but not in part, on any Distribution Date upon
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the exercise by the Servicer of its option to purchase the Receivables pursuant
to Section 9.1(a) of the Sale and Servicing Agreement. The Notes shall be
redeemed for the Redemption Price; provided that the Issuer has available funds
sufficient to pay the Redemption Price. The Servicer shall furnish notice of
such election to the Indenture Trustee and the Note Registrar not later than the
25th day of the month prior to the Redemption Date and the Issuer shall deposit
or cause the Servicer to deposit with the Indenture Trustee in the Collection
Account the Redemption Price of the Class A-5 Notes to be redeemed, whereupon
all such Class A-5 Notes shall be due and payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee by facsimile or by
first-class mail, postage prepaid, transmitted or mailed prior to the applicable
Redemption Date to each Holder of Class A-5 Notes and, for so long as any Notes
are listed thereon, to the Luxembourg Stock Exchange, as of the close of
business on the Record Date preceding the applicable Redemption Date, at such
Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable and that payments shall be made
only upon presentation and surrender of such Class A-5 Notes and the
place where such Class A-5 Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency to be
maintained as provided in Section 3.2); and
(iv) that interest on the Class A-5 Notes shall cease to
accrue on the Redemption Date.
Notice of redemption of the Class A-5 Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Class A-5
Notes shall not impair or affect the validity of the redemption of any other
Class A-5 Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2, on the
Redemption Date become due and payable at the Redemption Price and (unless the
Issuer shall default in the payment of the Redemption Price) no interest shall
accrue on the Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Redemption Price.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, and
(iii) (if required by the TIA) an Independent Certificate from a firm of
certified public accountants or other experts meeting the applicable
requirements of this Section, except that, in the case of any such application
or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
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(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(i), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) and this
clause (ii), is 10% or more of the Outstanding Amount of the Notes, but
such a certificate need not be furnished with respect to any securities
so deposited, if the fair value thereof to the Issuer as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Repurchased Receivables or Defaulted Receivables, whenever any property
or securities are to be released from the lien of this Indenture, the
Issuer shall also furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such release)
of the property or securities proposed to be released and stating that
in the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii), the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property other than Repurchased
Receivables and Defaulted Receivables, or securities released from the
lien of this Indenture since the commencement of the then current
calendar year, as set forth in the certificates required by clause
(iii) and this clause (iv), equals 10% or more of the Outstanding
Amount of the Notes, but such certificate need not be furnished in the
case of any release of property or securities if the fair value thereof
as set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of the Receivables as and to the extent permitted or required
by the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
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SECTION 11.2 Form of Documents Delivered to the Indenture Trustee. In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person my certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his or her certificate or opinion is based are erroneous. Any such
certificate of an Authorized Officer or Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, the Seller or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Servicer, the Seller or the Issuer, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application,
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document (x) as a condition of the granting of such
application, or (y) as evidence of the Issuer's compliance with any term hereof,
it is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in each case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.3 Actions of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by the
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by
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such Noteholders in person or by an agent duly appointed in writing; and except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee and, when
required, to the Issuer or the Servicer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Indenture Trustee, the
Issuer and the Servicer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Noteholder of any such
instrument or writing may be proved in any reasonable manner which the Indenture
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Noteholder shall bind every Holder of every Note issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done, or omitted to be done, by the Indenture
Trustee, the Issuer or the Servicer in reliance thereon, regardless of whether
notation of such action is made upon such Note.
(d) The Indenture Trustee may require such additional proof of any
matter referred to in this Section 11.3 as it shall deem necessary.
SECTION 11.4 Notices, etc., to the Indenture Trustee, the Issuer, and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(a) The Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if personally delivered
or mailed certified mail, return receipt requested and shall be deemed
to have been duly given upon receipt by the Indenture Trustee at its
Corporate Trust Office, or
(b) The Issuer by the Indenture Trustee or any Noteholder
shall be sufficient for every purpose hereunder if personally delivered
or mailed certified mail, return receipt to the Issuer addressed to:
Chase Manhattan Auto Owner Trust 1997-B, in care of Wilmington Trust
Company, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration or at any other address
previously furnished in writing to the Indenture Trustee by the Issuer.
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee, or
(c) The Luxembourg Stock Exchange by the Indenture Trustee
shall be sufficient for every purpose hereunder if in writing and sent
by overnight courier to the Principal Paying
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Agent addressed to: Banque Generale du Luxembourg, S.A., 50
Avenue JF. Kennedy-L-2951 Luxembourg.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Indenture Trustee shall be in writing, personally
delivered or mailed certified mail, return receipt requested to (i) in the case
of Moody's, at the following address: Moody's Investors Service, 99 Church
Street, New York, New York 10004, (ii) in the case of S&P, at the following
address: Standard & Poor's Ratings Service, 26 Broadway (15th Floor), New York,
New York 10004, Attention of Asset Backed Surveillance Department and (iii) in
the case of Fitch Investors Service, L.P., at the following address: Fitch
Investors Service, L.P., One State Street Plaza, New York, New York 10004; or as
to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if (i) so long
as any Notes are listed on the Luxembourg Stock Exchange, such notice is
published in an Authorized Newspaper and (ii) such notice is sent in writing and
mailed, first-class, postage prepaid to each Noteholder affected by such event,
at his address as it appears on the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Noteholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Noteholder shall affect the sufficiency of such notice with respect
to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to the Noteholders when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other right or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
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SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder that is different from the methods provided for in
this Indenture for such payments or notices, provided that such methods are
reasonable and consented to by the Indenture Trustee (which consent shall not be
unreasonably withheld). The Issuer will furnish to the Indenture Trustee a copy
of each such agreement, and the Indenture Trustee will cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this indenture by any of the provisions of the TIA, such required
provision shall control.
The provisions of TIA ss.ss. 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns. All agreements of the Indenture Trustee in this Indenture shall bind
its successors.
SECTION 11.10 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not be affected or impaired
thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders and (only to the
extent expressly provided herein) the Certificateholders, and any other party
secured hereunder, and any other person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect
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as if made on the date on which nominally due, and no interest shall accrue for
the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture or to satisfy any provision of the TIA.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Indenture Trustee
and the Owner Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. For all purposes of this Indenture, 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.
SECTION 11.17 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, 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 the Notes, this Indenture or any of the other Basic
Documents.
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SECTION 11.18 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its Obligations hereunder.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
CHASE MANHATTAN AUTO
OWNER TRUST 1997-B
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Owner Trustee
By: /s/ Patricia Evans
---------------------------------
Name: Patricia Evans
Title: Financial Services Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Indenture Trustee
By: /s/ Marianna Stershic
----------------------------
Name: Marianna Stershic
Title: Corporate Trust
Officer
<PAGE>
EXHIBIT A
SCHEDULE OF RECEIVABLES
Delivered to the Owner Trustee and the Indenture Trustee
on the Closing Date.
<PAGE>
EXHIBIT B
FORM OF A-1 NOTES
REGISTERED $_______________
CUSIP NO.
No. R-____
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
______% CLASS A-1 MONEY MARKET ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or its registered
assigns, the principal sum of __________________ DOLLARS ($________________),
partially payable on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is $__________
and the denominator of which is $200,000,000 by (ii) the aggregate amount, if
any, payable from the Note Distribution Account in respect of principal on the
Class A-1 Notes pursuant to Section 3.1 of the Indenture; provided that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the July 1998 Distribution Date (which is July 10, 1998) and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. The Issuer
will pay interest on this Note at the rate per annum shown above, on each
Distribution Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Sections 2.7, 3.1 and 8.2 of the Indenture. Interest on this Note will accrue
for each Distribution
- --------
(3) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
Date from the most recent Distribution Date on which interest has been paid to
but excluding the then current Distribution Date or, if no interest has yet been
paid, from June 18, 1997. Interest will be computed on the basis of actual days
elapsed in a 360-day year (which is 25 days in the case of July 1998
Distribution Date). Such principal of and interest on this Note shall be paid in
the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: __________, 199_
CHASE MANHATTAN AUTO OWNER TRUST
1997-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
--------------------------------
Name:
Title:
B-2
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
not in its individual capacity
but solely as Indenture Trustee
By:
---------------------------
Authorized Signatory
B-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ______% Class A-1 Money Market Asset Backed Notes (herein
called the "Class A-1 Notes" or the "Notes"), all issued under an Indenture
dated as of June 1, 1997 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and
Class A-5 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders and the
Note Owners, the Issuer, the Certificateholders and the Certificate Owners that
the Notes will be classified as indebtedness of the Issuer for all United States
tax purposes. The
<PAGE>
Noteholders, by acceptance of a Note, agree to treat, and to take no action
inconsistent with the treatment of, the Notes as indebtedness of the Issuer for
such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees 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 the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, N.A., in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purpose of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:______________ ______________________________****
Signature Guaranteed:
- --------
**** NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT C
FORM OF A-2 NOTES
REGISTERED $______________(1)
No. R-____ CUSIP NO.
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
_____% CLASS A-2 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or its registered
assigns, the principal sum of _______________ DOLLARS ($____________), partially
payable on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is $_____________ and the
denominator of which is $294,000,000 by the (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the Class
A-2 Notes pursuant to Section 3.1 of the Indenture; provided that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
the January 2000 Distribution Date and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. No payments of principal of the Class A-2 Notes
will be made until the principal of the Class A-1 Notes has been paid in full.
The Issuer will pay interest on this Note at the rate per annum shown above, on
each Distribution Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain limitations
contained in Sections 2.7, 3.1 and 8.2 of the Indenture. Interest on this Note
- --------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
will accrue for each Distribution Date from the most recent Distribution Date on
which interest has been paid to but excluding the then current Distribution Date
or, if no interest has yet been paid, from June 18, 1997. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified in the
Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: ________ __, 1997
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:
------------------------------------
Name:
Title:
C-2
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Indenture
Trustee
By:
-------------------------------
Authorized Signatory
C-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ____% Class A-2 Asset Backed Notes (herein called the "Class
A-2 Notes" or the "Notes"), all issued under an Indenture dated as of June 1,
1997 (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, Class A-3 Notes, Class A-4 Notes and
Class A-5 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Indenture Trustee or the
Owner Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders, the
Note Owners, the Issuer, the Certificateholders and the Certificate Owners that
the Notes will be classified as indebtedness of the Issuer for all United States
tax purposes. The
<PAGE>
Noteholders, by acceptance of a Note, agree to treat, and to take no action
inconsistent with the treatment of, the Notes as indebtedness of the Issuer for
such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees 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 the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, N.A., in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purpose of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ______________________ ____________________________*
Signature Guaranteed:
___________________________________
- --------
* NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change whatsoever.
<PAGE>
EXHIBIT D
FORM OF A-3 NOTES
REGISTERED $______________(1)
No. R-____ CUSIP NO.
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
____% CLASS A-3 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or its registered
assigns, the principal sum of _____________ DOLLARS ($_____________),
partially payable on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is $_____________
and the denominator of which is $227,000,000 by the (ii) the aggregate amount,
if any, payable from the Note Distribution Account in respect of principal on
the Class A-3 Notes pursuant to Section 3.1 of the Indenture; provided that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the February 2001 Distribution Date and the Redemption Date, if any,
pursuant to Section 10.1 of the Indenture. No payments of principal of the Class
A-3 Notes will be made until the principal of the Class A-1 Notes and the Class
A-2 Notes have been paid in full. The Issuer will pay interest on this Note at
the rate per annum shown above, on each Distribution Date until the principal of
this Note is paid or made available for payment, on the principal amount of this
Note outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Sections 2.7, 3.1 and 8.2 of the
- --------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
Indenture. Interest on this Note will accrue for each Distribution Date from the
most recent Distribution Date on which interest has been paid to but excluding
the then current Distribution Date or, if no interest has yet been paid, from
June 18, 1997. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Such principal of and interest on this Note shall be paid
in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: ____________ __, 199_
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:
--------------------------------------
Name:
Title:
D-2
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Indenture
Trustee
By:
------------------------------
Authorized Signatory
D-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ____% Class A-3 Asset Backed Notes (herein called the "Class
A-3 Notes" or the "Notes"), all issued under an Indenture dated as of June 1,
1997 (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, Class A-2 Notes, Class A-4 Notes and
Class A-5 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Indenture Trustee or the
Owner Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Noteholders, the Note Owners, the
Issuer, the Certificateholders and the Certificate Owners that the Notes will be
classified as indebtedness of the Issuer for all United States tax purposes.
The Noteholders, by
<PAGE>
acceptance of a Note, agree to treat, and to take no action inconsistent with
the treatment of, the Notes as indebtedness of the Issuer for such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees 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 the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, N.A., in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purpose of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ______________________ ________________________________*
Signature Guaranteed:
_____________________________________
- --------
* NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT E
FORM OF A-4 NOTES
REGISTERED $___________________*
No. R-____ CUSIP NO.
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
_________% CLASS A-4 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or its registered
assigns, the principal sum of _____________ DOLLARS ($_____________),
partially payable on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is $_____________
and the denominator of which is $133,000,000 by the (ii) the aggregate amount,
if any, payable from the Note Distribution Account in respect of principal on
the Class A-4 Notes pursuant to Section 3.1 of the Indenture; provided that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the October 2001 Distribution Date and the Redemption Date, if any,
pursuant to Section 10.1 of the Indenture. No payments of principal of the Class
A-4 Notes will be made until the principal of the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes have been paid in full. The Issuer will pay
interest on this Note at the rate per annum shown above, on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Sections 2.7,
- --------
* Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
3.1 and 8.2 of the Indenture. Interest on this Note will accrue for each
Distribution Date from the most recent Distribution Date on which interest has
been paid to but excluding the then current Distribution Date or, if no interest
has yet been paid, from June 18, 1997. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: ____________ __, 199_
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By: ___________________________________
Name: ____________________________
Title: ____________________________
E-2
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Indenture
Trustee
By:
-------------------------------
Authorized Signatory
E-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ____% Class A-4 Asset Backed Notes (herein called the "Class
A-4 Notes" or the "Notes"), all issued under an Indenture dated as of June 1,
1997 (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and
Class A-5 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Indenture Trustee or the
Owner Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Indenture Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity.
It is the intent of the Seller, the Servicer, the Noteholders, the
Note Owners, the Issuer, the Certificateholders and the Certificate Owners that
the Notes will be classified as indebtedness of the Issuer for all United States
tax purposes. The
<PAGE>
Noteholders, by acceptance of a Note, agree to treat, and to take no action
inconsistent with the treatment of, the Notes for such tax purposes as
indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees 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 the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, N.A., in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purpose of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ______________________ __________________________*
Signature Guaranteed:
_______________________________
- --------
* NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change whatsoever.
<PAGE>
EXHIBIT F
FORM OF A-5 NOTES
REGISTERED $________________(1)
No. R-____ CUSIP NO.
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
_____% CLASS A-5 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1997-B, a trust organized and existing
under the laws of the State of Delaware (including any successor, the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or its registered
assigns, the principal sum of _____________ DOLLARS ($ ), partially
payable on each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is $_____________ and the
denominator of which is $70,000,000 by the (ii) the aggregate amount, if any,
payable from the Note Distribution Account in respect of principal on the Class
A-5 Notes pursuant to Section 3.1 of the Indenture; provided that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
the March 2002 Distribution Date and the Redemption Date, if any, pursuant to
Section 10.1 of the Indenture. No payments of principal of the Class A-5 Notes
will be made until the principal of the Class A-1 Notes, the Class A-2 Notes,
Class A-3 Notes and the Class A-4 Notes have been paid in full. The Issuer will
pay interest on this Note at the rate per annum shown above, on each
Distribution Date until the principal of this Note is paid or made available for
payment, on the principal amount of this Note outstanding on the preceding
Distribution Date (after giving effect to all payments of principal made on the
preceding Distribution Date), subject to certain limitations contained in
Sections 2.7,
- --------
1 Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
3.1 and 8.2 of the Indenture. Interest on this Note will accrue for each
Distribution Date from the most recent Distribution Date on which interest has
been paid to but excluding the then current Distribution Date or, if no interest
has yet been paid, from June 18, 1997. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Dated: ____________ __, 199_
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:
------------------------------------
Name:
Title:
F-2
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ________ __, 199_
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Indenture
Trustee
By:
-------------------------------
Authorized Signatory
F-3
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its _________% Class A-5 Asset Backed Notes (herein called the
"Class A-5 Notes" or the "Notes"), all issued under an Indenture dated as of
June 1, 1997 (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, not in its individual capacity but solely as trustee (the
"Indenture Trustee", which term includes any successor Indenture Trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-5 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Indenture Trustee or the
Owner Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
It is the intent of the Seller, the Servicer, the Noteholders, the
Note Owners, the Issuer, the Certificateholders and the Certificate Owners that
the Notes will be classified as indebtedness of the Issuer for all United States
tax purposes. The
<PAGE>
Noteholders, by acceptance of a Note, agree to treat, and to take no action
inconsistent with the treatment of, the Notes as indebtedness of the Issuer for
such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees 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 the Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Chase Manhattan Bank USA, N.A., in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purpose of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- --------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ______________________ ________________________*
Signature Guaranteed:
_____________________________
- --------
* NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
<PAGE>
EXHIBIT G
Note Depository Agreement
<PAGE>
EXECUTION COPY
================================================================================
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, N.A.,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of June 1, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms........................................... 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name........................................................ 2
SECTION 2.2 Office...................................................... 2
SECTION 2.3 Purposes and Powers......................................... 2
SECTION 2.4 Appointment of Owner Trustee................................ 3
SECTION 2.5 Initial Capital Contribution of Trust
Estate.................................................... 3
SECTION 2.6 Declaration of Trust........................................ 3
SECTION 2.7 Title to Issuer Property.................................... 3
SECTION 2.8 Situs of Issuer............................................. 3
SECTION 2.9 Representations and Warranties of the
Depositor................................................. 4
SECTION 2.10 Liability of Certificateholders............................. 4
SECTION 2.11 Guaranteed Payments/Gross Income Allocations................ 4
SECTION 2.12 Deduction and Loss Allocations.............................. 5
SECTION 2.13 Special Allocations......................................... 6
SECTION 2.14 Amended and Restated Trust Agreement........................ 6
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership........................................... 6
SECTION 3.2 The Certificates............................................ 6
SECTION 3.3 Execution, Authentication and Delivery
of Certificates........................................... 7
SECTION 3.4 Registration of Transfer and Exchange
of Certificates........................................... 7
SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates........... 8
SECTION 3.6 Persons Deemed Certificateholders........................... 9
SECTION 3.7 Access to List of Certificateholders'
Names and Addresses......................................... 9
SECTION 3.8 Maintenance of Office or Agency............................. 10
SECTION 3.9 Appointment of Paying Agent................................. 10
SECTION 3.10 Book-Entry Certificates..................................... 11
SECTION 3.11 Notices to Clearing Agency.................................. 12
SECTION 3.12 Definitive Certificates..................................... 12
<PAGE>
SECTION 3.13 Authenticating Agent........................................ 13
SECTION 3.14 Actions of Certificateholders............................... 14
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with
Respect to Certain Matters.................................. 15
SECTION 4.2 Action by Certificateholders with
Respect to Certain Matters................................ 16
SECTION 4.3 Action by Certificateholders with
Respect to Bankruptcy..................................... 16
SECTION 4.4 Restrictions on Certificateholders' Power................... 16
SECTION 4.5 Majority Control............................................ 16
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate
Distribution Account........................................ 16
SECTION 5.2 Application of Funds in Certificate
Distribution Account...................................... 17
SECTION 5.3 Method of Payment........................................... 18
SECTION 5.4 No Segregation of Monies; No Interest....................... 18
SECTION 5.5 Accounting and Reports to the
Noteholders, Certificateholders, the
Internal Revenue Service and Others......................... 18
SECTION 5.6 Signature on Returns; Tax Matters Partner................... 19
SECTION 5.7 Capital Accounts............................................ 19
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority........................................... 20
SECTION 6.2 General Duties.............................................. 20
SECTION 6.3 Action upon Instruction..................................... 21
SECTION 6.4 No Duties Except as Specified in this
Agreement or in Instructions................................ 21
SECTION 6.5 No Action Except under Specified
Documents or Instructions................................... 22
SECTION 6.6 Restrictions................................................ 22
SECTION 6.7 Doing Business in Other Jurisdictions....................... 22
ARTICLE VII
CONCERNING OWNER TRUSTEE
ii
<PAGE>
SECTION 7.1 Acceptance of Trusts and Duties............................. 23
SECTION 7.2 Furnishing of Documents..................................... 25
SECTION 7.3 Representations and Warranties.............................. 25
SECTION 7.4 Reliance; Advice of Counsel................................. 26
SECTION 7.5 Not Acting in Individual Capacity........................... 27
SECTION 7.6 Owner Trustee May Own Certificates and
Notes..................................................... 27
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses........................... 27
SECTION 8.2 Indemnification............................................. 27
SECTION 8.3 Payments to Owner Trustee................................... 28
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement.............................. 28
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner
Trustee..................................................... 30
SECTION 10.2 Resignation or Removal of Owner
Trustee..................................................... 30
SECTION 10.3 Successor Owner Trustee..................................... 31
SECTION 10.4 Merger or Consolidation of Owner
Trustee..................................................... 31
SECTION 10.5 Appointment of Co-Trustee or Separate
Trustee..................................................... 32
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments.................................. 33
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders........................................ 34
SECTION 11.3 Limitations on Rights of Others............................. 35
SECTION 11.4 Notices..................................................... 35
SECTION 11.5 Severability................................................ 35
SECTION 11.6 Separate Counterparts....................................... 35
SECTION 11.7 Successors and Assigns...................................... 35
SECTION 11.8 No Recourse................................................. 36
SECTION 11.9 [Reserved].................................................. 36
SECTION 11.10 Headings.................................................... 36
iii
<PAGE>
SECTION 11.11 GOVERNING LAW............................................... 36
SECTION 11.12 Certificate Transfer Restrictions........................... 36
EXHIBITS
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate of Trust
Exhibit C - Form of Certificate Depository Agreement
iv
<PAGE>
TRUST AGREEMENT dated as of June 1, 1997 between CHASE MANHATTAN BANK
USA, N.A. ("Chase USA"), a national banking association having its principal
executive offices located at 802 Delaware Avenue, Wilmington, Delaware 19801, as
the depositor (in its capacity as the depositor, the "Depositor") and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as the owner trustee (the "Owner
Trustee").
ARTICLE I
DEFINITIONS
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Section 1.1 to the Sale and Servicing Agreement between
the trust established by this Agreement and Chase USA, as Seller and Servicer,
dated as of June 1, 1997, as the same may be amended and supplemented from time
to time (the "Sale and Servicing Agreement").
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder," and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
<PAGE>
(e) All calculations of the amount of interest accrued on the
Certificates shall be made on the basis of a 360-day year consisting of twelve
30-day months.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The trust created hereby shall be known as "Chase
Manhattan Auto Owner Trust 1997-B" (hereinafter, the "Issuer") in which name the
Owner Trustee may conduct the business of such trust, make and execute contracts
and other instruments on behalf of such trust and sue and be sued.
SECTION 2.2 Office. The office of the Issuer shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholders and the
Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Issuer is, and the
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and
the Certificates pursuant to this Agreement, and to sell,
transfer or exchange the Notes and the Certificates;
(b) to acquire the property and assets set forth in the Sale
and Servicing Agreement from the Depositor pursuant to the terms
thereof, to make payments or distributions on the Notes and
Certificates, to make deposits to and withdrawals from the Reserve
Account and other accounts established under this Agreement and the
Sale and Servicing Agreement;
(c) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to the Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the
Basic Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the
2
<PAGE>
making of distributions to the Certificateholders and the Noteholders.
Issuer is hereby authorized to engage in the foregoing activities. Issuer
shall not engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the other
Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Issuer effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the Reserve Account Initial Deposit. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the initial Owner Trust
Estate and shall be deposited in the Reserve Account pursuant to Section 5.6(a)
of the Sale and Servicing Agreement. The Depositor shall pay the organizational
expenses of the Issuer as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Issuer under the Basic Documents. It is the
intention of the parties hereto that the Issuer constitute a business trust
under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. It is the intention of the parties
hereto that, solely for United States income and franchise tax purposes, the
Issuer shall be treated as a partnership. The parties agree that, unless
otherwise required by appropriate tax authorities, the Issuer will file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Issuer as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and to the extent not inconsistent
herewith, in the Business Trust Statute with respect to accomplishing the
purposes of the Issuer. The Owner Trustee shall file the Certificate of Trust
with the Secretary of State of Delaware.
SECTION 2.7 Title to Issuer Property. Legal title to all the Owner
Trust Estate shall be vested at all times in the Issuer as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case the title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
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SECTION 2.8 Situs of Issuer. The Issuer will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Issuer shall be located in the State of Delaware or the
State of New York. Payments will be received by the Issuer only in Delaware or
New York, and payments will be made by the Issuer only from Delaware or New
York. The only office of the Issuer will be at its office in Delaware.
SECTION 2.9 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor has been duly organized and is validly existing as a national
banking association in good standing under the laws of the United States of
America, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, power, authority and legal
right to acquire and own the Receivables.
(ii) The Depositor has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; the
Depositor has full power and authority to sell and assign the property
to be sold and assigned to and deposited with the Issuer, and the
Depositor has duly authorized such sale and assignment and deposit to
the Issuer by all necessary action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Depositor
by all necessary action.
(iii) The consummation of the transactions contemplated by
this Agreement and the other Basic Documents and the fulfillment of the
terms hereof, do not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the articles of association or bylaws of the
Depositor, 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
Depositor 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 Depositor's knowledge, any
order, rule or regulation applicable to the Depositor of any court or
of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties.
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SECTION 2.10 Liability of Certificateholders. No Certificateholder
shall have any personal liability for any liability or obligation of the Issuer.
SECTION 2.11. Guaranteed Payments/Gross Income Allocations. (a)
Inasmuch as the Certificateholders' Interest Distributable Amount is determined
and paid hereunder without regard to the income of the Issuer, the Issuer shall
treat payments of such amounts as "guaranteed payments" within the meaning of
Section 707(c) of the Code. Consequently, Certificateholders will have ordinary
income equal to their allocable share of the Certificateholders' Interest
Distributable Amount, the Issuer will have an equivalent deduction for United
States federal income tax purposes and no amount of the gross income of the
Issuer shall be allocable to the Certificateholders (and there will be no
corresponding increase in a Certificateholders's Capital Account under Section
5.7). In the event that any taxing authority does not respect such tax
treatment, the gross income of the Issuer for any calendar month as determined
for United States federal income tax purposes shall be allocated, after giving
effect to special allocations set forth in Section 2.12 of this Agreement and
for purposes of maintaining Capital Accounts under Section 5.7 of this Agreement
as follows:
(1) first, among the Certificateholders as of the close of the last day of such
calendar month, in proportion to their ownership of the principal amount of
Certificates outstanding on such date, an amount of gross income equal the
amount of interest that accrues in such calendar month on the Certificates in
accordance with their terms, including interest accruing thereon at the
Certificate Rate monthly and interest on amounts previously due under the
Certificates and not yet paid as provided therein; and
(2) the balance of gross income, if any, to the
Depositor.
If the gross income of the Issuer for any month is insufficient for the
allocations described in clause (1) above, subsequent items of gross income
shall first be allocated to make up such shortfall before being allocated as
provided in clause (2).
(b) In the event the initial issue price of the Certificates differs
from their initial principal amount, there shall be specially allocated to the
Certificateholders the portion, if any, of the offset for premium (in the case
the issue price of the Certificates exceeds their principal amount) or market
discount income (in the case the principal amount of the Certificates exceeds
their issue price) on the Receivables accruing for a calendar month that is
attributable to such difference.
SECTION 2.12. Deduction and Loss Allocations. (a) All items
of deduction and loss of the Issuer shall be allocated to the Depositor.
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(b) To the extent that an allocation of the gross amount of deductions
and losses to the Depositor pursuant to Section 2.12(a) above would cause the
Capital Account of the Depositor to be reduced below zero, such excess
deductions and losses shall be allocated to the Certificateholders on a pro rata
basis until each of their Capital Accounts has been reduced to zero. If any
amount of gross deduction or loss has not been allocated pursuant to the
preceding sentence because all of the Certificateholders' Capital Accounts have
been reduced to zero, the amount of such remaining unallocated deductions or
losses shall be allocated to the Depositor.
(c) If any deductions or losses have been allocated to the
Certificateholders under Section 2.12(b) above, an amount of gross income shall
be allocated to such Certificateholders under this Section 2.12(c) in subsequent
taxable years sufficient to offset the amount of any deductions or losses
previously allocated to such Certificateholders under Section 2.12(b) above and,
thereafter, allocations of gross income and deductions shall be made in
accordance with Sections 2.11 and 2.12(a) of this Agreement.
SECTION 2.13. Special Allocations. In the event any Certificateholder
unexpectedly receives any adjustments, allocations or distributions described in
Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Issuer
income and gain shall be specially allocated to such Certificateholder in an
amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations, the deficit, if any, in the balance of the Capital Account
of such Certificateholder as quickly as possible. This Section 2.13 is intended
to comply with the qualified income offset provision in Section
1.704-1(b)(2)(ii)(d) of the Treasury Regulations.
SECTION 2.14. Amended and Restated Trust Agreement. This Agreement
amends and restates in its entirety the Trust Agreement dated as of May 14, 1997
between the Depositor and Owner Trustee.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1 Initial Ownership. Upon the formation of the Issuer by the
contribution by the Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, the Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2 The Certificates. The Certificates shall be issued in
denominations of $1,000 and integral multiples thereof; provided that one
Certificate that constitutes the residual portion of the initial Certificate
Balance may be issued in the form of a Definitive Certificate in a denomination
less than an integral multiple of $1,000. Upon initial issuance, the
Certificates shall each be in the form of Exhibit A, which is incorporated by
reference, and shall be issued as provided in Section 3.10 in an
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aggregate principal amount equal to the Certificate Balance. The Certificates
shall be executed on behalf of the Issuer by manual or facsimile signature of an
Authorized Officer or other authorized signatory of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Issuer, shall be validly issued and entitled to the benefit of
this Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates. No Certificate shall entitle the Holder to any
benefit under this Agreement, or shall be valid for any purpose, unless there
shall appear on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Owner Trustee or Chase, as
the Owner Trustee's authentication agent, by manual or facsimile signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication. A transferee of a Certificate shall
become a Certificateholder, and shall be entitled to the rights and subject to
the obligations of a Certificateholder hereunder, upon due registration of such
Certificate in such transferee's name pursuant to Section 3.4.
SECTION 3.3 Execution, Authentication and Delivery of Certificates.
Concurrently with the transfer of the Receivables to the Issuer pursuant to the
Sale and Servicing Agreement, the Owner Trustee shall cause the Certificates in
an aggregate principal amount equal to the initial Certificate Balance to be
executed on behalf of the Issuer, authenticated and delivered to or upon the
written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further action by the Depositor, in
authorized denominations.
SECTION 3.4 Registration of Transfer and Exchange of Certificates. The
Owner Trustee shall cause to be kept at the office or agency to be maintained
pursuant to Section 3.8 by a certificate registrar (the "Certificate
Registrar"), a register (the "Certificate Register") in which, subject to such
reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Chase shall be the initial Certificate
Registrar. In the event that, subsequent to the date of issuance of the
Certificates, Chase notifies the Owner Trustee that it is unable to act as the
Certificate Registrar, the Owner Trustee shall act, or the Owner Trustee shall,
with the consent of the Depositor, appoint another bank or trust company, having
an office or agency located in The City of New York and which agrees to act in
accordance with the provisions of this Agreement applicable to it, to act, as
successor Certificate Registrar under this Agreement.
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The Owner Trustee may revoke such appointment and remove Chase as the
Certificate Registrar if the Owner Trustee determines in its sole discretion
that Chase failed to perform its obligations under this Agreement in any
material respect. Chase shall be permitted to resign as the Certificate
Registrar upon 30 days' written notice to the Owner Trustee, the Depositor and
the Issuer; provided, however, that such resignation shall not be effective and
Chase shall continue to perform its duties as the Certificate Registrar until
the Owner Trustee has appointed a successor Certificate Registrar with the
consent of the Depositor.
An institution succeeding to the corporate agency business of the
Certificate Registrar shall continue to be the Certificate Registrar without the
execution or filing of any paper or any further act on the part of the Owner
Trustee or such Certificate Registrar.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute, authenticate and (if the Certificate Registrar is different than the
Owner Trustee, then the Certificate Registrar shall) deliver (or shall cause
Chase as its authenticating agent to authenticate and deliver), in the name of
the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like class and aggregate face amount dated the
date of authentication by the Owner Trustee or any authenticating agent. At the
option of a Holder, Certificates may be exchanged for other Certificates of the
same class in authorized denominations of a like aggregate amount upon surrender
of the Certificates to be exchanged at the office or agency maintained pursuant
to Section 3.8.
Whenever any Certificate is surrendered for exchange, the Owner Trustee
shall execute, authenticate and (if the Certificate Registrar is different than
the Owner Trustee, then the Certificate Registrar shall) deliver the
Certificates which the Cer-tificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder, which signature on such assignment must be guaranteed by a member of
the New York Stock Exchange or a commercial bank or trust company.
Each Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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SECTION 3.5 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, of
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of Issuer shall execute and the Owner Trustee, or
Chase, as the Owner Trustee's authenticating agent, shall authenticate and (if
the Certificate Registrar is different from the Owner Trustee, then the
Certificate Registrar shall) deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
class, tenor and denomination. If, after delivery of such replacement
Certificate, a bona fide purchaser of the original Certificate in lieu of which
such replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee or the Certificate Registrar shall be entitled to
recover such replacement Certificate from such Person to whom such replacement
Certificate was delivered or any assignee of such Person, except a bona fide
purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Owner Trustee or the Certificate Registrar in connection therewith. In
connection with the issuance of any new Certificate under this Section 3.5, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of an ownership interest in Issuer, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. The provisions of this Section 3.5 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 5.2 and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the Servicer
and the Depositor (and to the Owner Trustee, if the Owner Trustee is not the
Certificate Registrar) within 15 days after receipt by the Certificate Registrar
of a request therefor from the Servicer or the Depositor (or the Owner Trustee)
in writing, a list, in such form as the Servicer or the
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Depositor (or the Owner Trustee) may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. If, at
such time, if any, as Definitive Certificates have been issued, if three or more
Holders of Certificates or one or more Holders of Certificates evidencing not
less than 25% of the Certificate Balance apply in writing to the Certificate
Registrar, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Certificate
Registrar shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed to hold none of the Depositor, the
Certificate Registrar, the Servicer or the Owner Trustee accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
SECTION 3.8 Maintenance of Office or Agency. The Owner Trustee shall
maintain in the City of New York, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange.
The Owner Trustee initially designates the offices of The Chase Manhattan Bank
located at 450 West 33rd Street, New York, New York 10001-2697 as its office for
such purposes. The Owner Trustee shall give prompt written notice to the
Depositor, the Servicer and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Owner Trustee may appoint
a Paying Agent with respect to the Certificates. The Owner Trustee hereby
appoints Chase as the initial Paying Agent. The Paying Agent shall have the
revocable power to withdraw funds from the Certificate Distribution Account,
make distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to the Owner Trustee. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect or for other good cause. The Paying Agent
shall be permitted to resign upon 30 days' written notice to the Owner Trustee
and the Servicer. In the event that Chase shall no longer be the Paying Agent,
the Owner Trustee shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company and may be the Owner Trustee), with the consent of
the Depositor (which consent shall not be unreasonably withheld). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Owner Trustee (unless it is the Owner Trustee) to execute and
deliver to the Owner Trustee an instrument in which such successor Paying Agent
or additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such
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successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Owner Trustee and upon the removal of a Paying Agent, such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 7.1, 7.3, 7.4, 7.6, 8.1 and 8.2 shall apply to the Owner Trustee also
in its role as Paying Agent, for so long as the Owner Trustee shall act as
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
SECTION 3.10 Book-Entry Certificates. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by or on behalf of the
Issuer; provided that one Certificate that constitutes the residual portion of
the Certificate Balance may be issued in the form of a Definitive Certificate in
a denomination less than an integral multiple of $1,000. Such Book-Entry
Certificate or Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no beneficial owner (other than Chase Securities Inc.) will receive a
definitive Certificate representing such beneficial owner's interest in such
Certificate, except as provided in Section 3.12. Unless and until Definitive
Certificates have been issued to beneficial owners pursuant to Section 3.12:
(a) the provisions of this Section 3.10 shall be in
full force and effect;
(b) the Certificate Registrar, the Paying Agent and the
Owner Trustee shall be entitled to deal with the Clearing Agency and
the Clearing Agency Participants for all purposes of this Agreement
relating to the Book-Entry Certificates (including the payment of
principal of and interest on the Book-Entry Certificates and the giving
of instructions or directions to Certificate Owners of Book-Entry
Certificates) as the sole Holder of Book-Entry Certificates and shall
have no obligations to Certificate Owners thereof;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions of
this Section shall control;
(d) the rights of Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Clearing Agency (or to
the extent Certificateholders are not Clearing Agency Participants,
through the Clearing Agency Participants through which such
Certificateholders own Book-Entry
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Certificates), and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency
and/or Clearing Agency Participants, and all references in this
Agreement to actions by Certificateholders shall refer to actions taken
by the Clearing Agency upon instructions from the Clearing Agency
Participants, and all references in this Agreement to distributions,
notices, reports and statements to Certificateholders shall refer to
distributions, notices, reports and statements to the Clearing Agency,
as registered holder of the Certificates, as the case may be, for
distribution to Certificateholders in accordance with the procedures of
the Clearing Agency. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Certificates are issued pursuant to Section
3.12, the initial Clearing Agency will make book-entry transfers among
Clearing Agency Participants and receive and transmit payments of
principal of and interest on the Book-Entry Certificates to such
Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of the Holders of
Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in the Book-Entry Certificates and has delivered
such instructions to the Owner Trustee.
SECTION 3.11 Notices to Clearing Agency. Whenever a notice or other
communication to Certificateholders is required under this Agreement, unless and
until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.12, the Owner Trustee and the Paying Agent shall give all
such notices and communications specified herein to be given to
Certificateholders to the Clearing Agency, and shall have no obligations to
Certificate Owners.
SECTION 3.12 Definitive Certificates. If (a) the Servicer advises the
Owner Trustee in writing that the Clearing Agency is no longer willing or able
to properly discharge its responsibilities with respect to the Certificates, and
the Servicer is unable to locate a qualified successor, (b) the Servicer at its
option elects to terminate the book-entry system through the Clearing Agency, or
(c) after the occurrence of an Event of Servicing Termination or Event of
Default, Certificate Owners of the Certificates representing beneficial
interests aggregating not less than a majority of the Certificate Balance advise
the Clearing Agency through the Clearing Agency Participants, and the Owner
Trustee, in writing, and if the Clearing Agency shall so notify the Owner
Trustee, that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of Certificate Owners, then the Owner
Trustee shall notify the Clearing Agency of
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the occurrence of any such event, which shall be responsible to notify the
Certificate Owners of the occurrence of such event and of the availability of
the Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the typewritten Certificate or
Certificates representing the Book-Entry Certificates by the Clearing Agency,
accompanied by re-registration instructions, the Owner Trustee shall execute,
authenticate, or cause to be authenticated, and (if the Certificate Registrar is
different than the Owner Trustee, then the Certificate Registrar shall) deliver
the Definitive Certificates in accordance with the instructions of the Clearing
Agency. Neither the Certificate Registrar nor the Owner Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, all references herein to obligations imposed upon or to
be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Owner Trustee and the Paying Agent shall
recognize the Holders of the Definitive Certificates as Certificateholders. The
Definitive Certificates shall be printed, lithographed or engraved or may be
produced in any other matter as is reasonably acceptable to the Owner Trustee,
as evidenced by its execution thereof.
SECTION 3.13 Authenticating Agent.
(a) The Owner Trustee may appoint one or more authenticating agents
with respect to the Certificates which shall be authorized to act on behalf of
the Owner Trustee in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Certificates. The Owner Trustee hereby appoints Chase as Authenticating Agent
for the authentication of Certificates upon any registration of transfer or
exchange of such Certificates. Whenever reference is made in this Agreement to
the authentication of Certificates by the Owner Trustee or the Owner Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Owner Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Owner Trustee by an
authenticating agent. Each authenticating agent (other than Chase) shall be
subject to acceptance by the Depositor.
(b) Any institution succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Owner
Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Owner Trustee and the Depositor. The Owner Trustee
may at any time terminate the agency
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of an authenticating agent by giving notice of termination to such
authenticating agent and to the Depositor. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an authenticating
agent shall cease to be acceptable to the Owner Trustee or the Depositor, the
Owner Trustee promptly may appoint a successor authenticating agent with the
consent of the Depositor. Any successor authenticating agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an authenticating agent.
(d) The Depositor shall pay the authenticating agent from time to time
reasonable compensation for its services under this Section 3.13.
(e) The provisions of Sections 7.1, 7.3, 7.4, 7.6, 8.1 and 8.2 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 3.13, the
Certificates may have endorsed thereon, in lieu of the Owner Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Certificates referred to in the within mentioned
Agreement.
____________________________,
as Owner Trustee
By:
Authorized Officer
or
____________________________,
as Authenticating Agent
for the Owner Trustee,
____________________________
Authorized Officer
SECTION 3.14 Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Owner Trustee and, when
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required, to the Depositor or the Servicer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Owner Trustee, the
Depositor and the Servicer, if made in the manner provided in this Section 3.14.
(b) The fact and date of the execution by any Certifi-cateholder of any
such instrument or writing may be proved in any reasonable manner which the
Owner Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Owner Trustee, the Depositor or the Servicer in reliance thereon,
regardless of whether notation of such action is made upon such Certificate.
(d) The Owner Trustee may require such additional proof of any matter
referred to in this Section 3.14 as it shall deem necessary.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Issuer (except claims
or lawsuits brought in connection with the collection of the Receivables) and
the compromise of any material action, claim or lawsuit brought by or against
the Issuer (except with respect to the aforementioned claims or lawsuits for
collection of the Receivables);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
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(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder
is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement, except to any amendment where the consent of any
Certificateholder is not required under the terms of the Sale and
Servicing Agreement; or
(f) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note
Registrar, the Paying Agent, the Trustee or the Certificate Registrar
of its obligations under the Indenture or this Agreement, as
applicable.
The Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Paying Agent, Authenticating Agent or Certificate
Registrar within five Business Days thereof.
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) remove the Servicer under the Sale and
Servicing Agreement pursuant to Article VIII thereof, (b) remove the
Administrator under the Administration Agreement pursuant to Section 8 thereof
or (c) except as expressly provided in the Basic Documents, sell the Receivables
or any interest therein after the termination of the Indenture. The Owner
Trustee shall take the actions referred to in the preceding sentence only upon
written instructions signed by the Certificateholders.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Issuer without the unanimous prior approval of all
Certificateholders unless the Owner Trustee reasonably believes that the Issuer
is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Issuer or the Owner Trustee under this Agreement or any of the other
Basic Documents or would be contrary to Section 2.3 nor shall the Owner Trustee
be obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Holders of Certificates evidencing not less than a majority of the
Certificate Balance.
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Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by the Holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account. The
Owner Trustee, for the benefit of Certificateholders, shall establish and
maintain in the name of the Issuer an Eligible Deposit Account (the "Certificate
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders. Except as
otherwise provided herein, the Certificate Distribution Account shall be under
the sole dominion and control of the Owner Trustee for the benefit of the
Certificateholders.
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account and
in all proceeds thereof. If, at any time, the Certificate Distribution Account
ceases to be an Eligible Deposit Account, the Servicer shall establish a new
Certificate Distribution Account as an Eligible Deposit Account in accordance
with Section 5.1(b) of the Sale and Servicing Agreement, and the Owner Trustee
shall transfer any cash and/or any investments to such new Certificate
Distribution Account and shall assist the Servicer in establishing such account
as necessary.
Amounts on deposit in the Certificate Distribution Account shall not be
invested.
SECTION 5.2 Application of Funds in Certificate Distribution Account.
(a) Not later than 12:00 noon, New York City time, on each Distribution Date,
the Owner Trustee or the Paying Agent on behalf of the Owner Trustee will, based
on the information contained in the Servicer's Certificate delivered on the
related Determination Date pursuant to Section 4.8 of the Sale and Servicing
Agreement, distribute to Certificateholders, to the extent of the funds
available, amounts deposited in the Certificate Distribution Account pursuant to
Section 5.5 of the Sale and Servicing Agreement on such Distribution Date in the
following order of priority:
(i) first, to the Certificateholders, on a pro rata
basis, an amount equal to the Certificateholders' Interest
Distributable Amount; and
(ii) second, to the Certificateholders, on a pro rata basis,
an amount equal to the Certificateholders' Principal Distributable
Amount.
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(b) On each Distribution Date, the Owner Trustee shall send, or cause
to be sent, to each Certificateholder the statement provided to the Owner
Trustee by the Servicer pursuant to Section 5.8 of the Sale and Servicing
Agreement on such Distribution Date.
(c) In the event that any withholding tax is imposed on the Issuer's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. Each of the Owner Trustee and the Paying Agent is hereby
authorized and directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is legally
owed by the Issuer (but such authorization shall not prevent the Owner Trustee
from contesting any such tax in appropriate proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a Certificateholder shall
be treated as cash distributed to such Certificateholder at the time it is
withheld by the Issuer and remitted to the appropriate taxing authority. The
Owner Trustee or the Paying Agent, on its behalf, intends to withhold United
States withholding taxes from any amounts allocable or distributed to nonUnited
States Certificateholders at a rate of 35% for non-United States
Certificateholders that are classified as corporations for United States federal
income tax purposes and at a rate of 39.6% for all other non-United States
Certificateholders. In the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee and the Paying Agent shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee and the Paying
Agent for any out-of-pocket expenses incurred.
SECTION 5.3 Method of Payment. Subject to Section 9.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the preceding Record Date either (a) by
wire transfer, in immediately available funds, to the account of such Holder at
a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Distribution Date
and such Holder's Certificates in the aggregate evidence a denomination of not
less than $1,000,000 or (b) by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register; provided that,
unless Definitive Certificates have been issued pursuant to Section 3.12, with
respect to Certificates registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), distributions
will be made by wire transfer in immediately available funds to the account
designated by such nominee.
SECTION 5.4 No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by the Owner Trustee or
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any Paying Agent hereunder need not be segregated in any manner except to the
extent required by law and may be deposited under such general conditions as may
be prescribed by law, and neither the Owner Trustee nor any Paying Agent shall
be liable for any interest thereon.
SECTION 5.5 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Issuer on a
calendar year basis on the accrual method of accounting, (b) deliver (or cause
to be delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including
Schedule K-1) to enable each Certificateholder to prepare its Federal and state
income tax returns, (c) prepare or cause to be prepared and file such tax
returns relating to the Issuer (including a partnership information return, Form
1065), and make such elections as may from time to time be required or
appropriate under any applicable state or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership for
Federal income tax purposes and (d) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.2(c) with
respect to income or distributions to Certificateholders. The Depositor shall
sign all tax information returns filed pursuant to this Section 5.5 and any
other returns as may be required by law. The Owner Trustee shall elect under
Section 1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables. The Owner Trustee shall not make the
election provided under Section 754 of the Code.
SECTION 5.6 Signature on Returns; Tax Matters Partner. Notwithstanding
the provisions of Section 5.5, the Depositor shall sign on behalf of the Issuer
the tax returns of the Issuer, unless applicable law requires the Owner Trustee
to sign such documents, in which case such documents shall be signed by the
Owner Trustee at the written direction of the Depositor.
The Depositor shall be the "tax matters partner" of the Issuer pursuant
to the Code.
SECTION 5.7 Capital Accounts. The Issuer shall maintain accounts
("Capital Accounts") with respect to each Certificateholder and the Depositor
(each an "Owner"). For this purpose, Capital Accounts shall be maintained in
accordance with the following provisions:
(a) Each Owner's Capital Account shall be increased by the
Capital Contributions (as defined below) of such Owner, such Owner's
distributive share of gross income (if any) and any items in the nature
of income or gain that are allocated to such Owner pursuant to Section
2.11, 2.12(c) or 2.13.
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(b) Each Owner's Capital Account shall be reduced by any
amount distributed to such Owner (including, in the case of the
Depositor, any amount released or otherwise distributed to the
Depositor from the Reserve Account under Section 5.6 of the Sale and
Servicing Agreement) and any items in the nature of deductions or
losses that are allocated to such Owner pursuant to Section 2.12 or
2.13.
(c) In the event all or a portion of a Certificate is
transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to
the extent it related to such Certificate or a portion thereof.
"Capital Contribution" means the amount of any cash contributed to the
Issuer by an Owner (including any amounts deemed to be contributed in connection
with the original issuance of the Certificates), including, in the case of the
Depositor, the amount of any Receivables deemed to have been contributed by the
Depositor (with such amount for Receivables intended to reflect the amount of
the Receivables and monies due thereon or with respect thereto, including
accrued but unpaid interest and finance charges, conveyed to the Issuer by the
Depositor on the Closing Date under Article II of the Sale and Servicing
Agreement). The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Section 1.704-l(b) of the Treasury Regulations and shall be interpreted in a
manner consistent therewith.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Issuer is named
as a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Issuer is named as a party and
any amendment thereto, in each case, in such form as the Depositor shall approve
as evidenced conclusively by the Owner Trustee's execution thereof, and, on
behalf of the Issuer at the written direction of the Depositor, to direct the
Indenture Trustee to authenticate and deliver Class A-1 Notes in the aggregate
principal amount of $200,000,000.00, Class A-2 Notes in the aggregate principal
amount of $294,000,000.00, Class A-3 Notes in the aggregate principal amount of
$227,000,000.00, Class A-4 Notes in the aggregate principal amount of
$133,000,000.00 and Class A-5 Notes in the aggregate principal amount of
$70,000,000.00. In addition to the foregoing, the Owner Trustee is authorized,
but shall not be obligated, to take all actions required of the Issuer pursuant
to the Basic Documents. The Owner Trustee is further authorized from time to
time to take such action as the
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Administrator recommends or directs in writing with respect to the Basic
Documents.
SECTION 6.2 General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the other Basic Documents and to
administer the Issuer in the interest of Certificateholders, subject to the
Basic Documents and in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee or
the Issuer hereunder or under any other Basic Document, and the Owner Trustee
shall not be liable for the default or failure of the Administrator to carry out
its obligations under the Administration Agreement.
SECTION 6.3 Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct the Owner Trustee in the
management of the Issuer. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any other Basic Document if the
Owner Trustee shall reasonably determine, or shall have been advised by counsel
in writing, that such action is likely to result in personal liability to the
Owner Trustee (in such capacity or individually), is contrary to the terms of
this Agreement or any other Basic Document or is contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document or is unsure as to the application of any provision of this
Agreement or any Basic Document, or if any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable
provision, or in the event that this Agreement permits any determination by the
Owner Trustee or is silent or is incomplete as to the course of action that the
Owner Trustee is required to take with respect to a particular set of facts, the
Owner Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the course
of action to be adopted, and to the extent the Owner Trustee acts in good faith
in accordance with any written instruction of the Certificateholders received,
the Owner Trustee shall not be liable on account of such action to any Person.
If the Owner Trustee shall not have received appropriate instruction within ten
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the other Basic Documents, as it shall deem
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to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall undertake to perform such duties and only
such duties as are specifically set forth in this Agreement and the other Basic
Documents, and no implied covenants or obligations shall be read into this
Agreement or the other Basic Documents. The Owner Trustee shall not have any
duty or obligation to manage, make any payment with respect to, register,
record, sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Owner Trustee is a party, except
as expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any Basic
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to prepare or file any
Commission filing for the Issuer or to record this Agreement or any other Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any Liens
on any part of the Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee, in its individual capacity, that are not related to
the ownership or the administration of the Owner Trust Estate.
SECTION 6.5 No Action Except under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents, and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Owner Trustee shall not (a) take any
action that is inconsistent with the purposes of the Issuer set forth in Section
2.3 or (b) take any action or amend this Agreement in any manner that, to the
best knowledge of the Owner Trustee, would result in the Issuer's becoming
taxable as a corporation for United States federal income tax purposes. The
Owner Trustee and Depositor agree that no election to treat the Issuer other
than as a partnership for United States federal income tax purposes or any
relevant state tax purposes shall be made by or on behalf of the Issuer. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
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SECTION 6.7 Doing Business in Other Jurisdictions. (a) Notwithstanding
anything contained herein to the contrary, the Owner Trustee shall not be
required to take any action in any jurisdiction other than in the State of
Delaware, other than as set forth in the last sentence of this Section 6.7, if
the taking of such action will (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivisions thereof in existence on the date
hereof other than the State of Delaware becoming payable by the Owner Trustee;
or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee, as the
case may be, contemplated hereby. The Owner Trustee shall be entitled to obtain
advice of counsel (which advice shall be an expense of the Depositor) to
determine whether any action required to be taken pursuant to this Agreement
results in the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence. In the event that said counsel advises the Owner Trustee
that such action will result in such consequences, the Owner Trustee will
appoint an additional trustee pursuant to Section 10.5 to proceed with such
action.
ARTICLE VII
CONCERNING OWNER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the other Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or gross negligence or (ii)
in the case of the breach of any representation or warranty contained in Section
7.3 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Owner Trustee unless it is proved that the
Owner Trustee was grossly negligent in ascertaining the pertinent facts;
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(b) The Owner Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with the
instructions of the Certificateholders given pursuant to Section 6.3;
(c) No provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in its own performance of any of its
rights or powers hereunder or under any other Basic Document if the
Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the
Notes;
(e) The Owner Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Agreement or
for the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of the
Owner Trust Estate or for or in respect of the validity or sufficiency
of the Basic Documents, other than the certificate of authentication on
the Certificates, shall not be accountable for the use or application
by the Depositor of the proceeds from the Certificates, and the Owner
Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the Basic Documents. The Owner
Trustee shall at no time have any responsibility or liability for or
with respect to the legality, validity and enforceability of any
Receivable, or the perfection and priority of any security interest
created by any Receivable in any Financed Vehicle or the maintenance of
any such perfection and priority; or the ability of the Owner Trust
Estate to generate the payments to be distributed to Certificateholders
under this Agreement or the Noteholders under the Indenture, including:
the existence, condition and ownership of any Financed Vehicle; the
existence and enforceability of any insurance thereon; the existence
and contents of any Receivable on any computer or other record thereof;
the validity of the assignment of any Receivable to the Issuer or of
any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the
Depositor or the Servicer with any warranty or representation made
under any Basic Document or in any related document or the accuracy of
any such warranty or representation or any action of the Indenture
Trustee, the Administrator or the Servicer or any subservicer taken in
the name of the Owner Trustee;
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(f) The Owner Trustee shall not be liable for the default or
misconduct of the Indenture Trustee, the Administrator or the Servicer
under any of the Basic Documents or otherwise, and the Owner Trustee
shall have no obligation or liability to perform the obligations of the
Issuer under this Agreement or the Basic Documents that are required to
be performed by the Administrator under the Administration Agreement,
the Indenture Trustee under the Indenture or the Servicer under the
Sale and Servicing Agreement;
(g) The Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement,
or to institute, conduct or defend any litigation under this
Agreement or otherwise or in relation to this Agreement or any other
Basic Document, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the
Owner Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that may be incurred by the Owner
Trustee therein or thereby. The right of the Owner Trustee to perform
any discretionary act enumerated in this Agreement or in any other
Basic Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable for other than its negligence, bad faith or
willful misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically
required to be furnished pursuant to any provision of this Agreement or
the other Basic Documents, shall examine them to determine whether they
conform to the requirements of this Agreement or such other Basic
Document; provided, however, that the Owner Trustee shall not be
responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other
instrument furnished to the Owner Trustee pursuant to this Agreement or
the other Basic Documents.
SECTION 7.2 Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 7.3 Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and having an office within the
State of Delaware. It has all
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requisite corporate power, authority and legal right to execute, deliver and
perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement,
and this Agreement will be executed and delivered by one of
its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of
this Agreement, nor the consummation by it of the
transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of the Owner Trustee or
any judgment, writ, decree or order applicable to it, or
constitute any default under its charter documents or by-laws
or, with or without notice or lapse of time, any indenture,
mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound.
(d) The execution, delivery and performance by the
Owner Trustee of this Agreement does not require the
authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any
other action in respect of, any governmental authority or
agency of the State of Delaware or the United States of
America regulating the corporate trust activities of the Owner
Trustee.
(e) This Agreement has been duly authorized, executed
and delivered by the Owner Trustee and shall constitute the
legal, valid, and binding agreement of the Owner Trustee,
enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization and other laws affecting the rights of
creditors generally, and by general principles of equity
regardless of whether enforcement is pursuant to a proceeding
in equity or at law.
SECTION 7.4 Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice
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president or by the treasurer, secretary or other authorized officers of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee 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 Owner
Trustee with due care and (ii) may consult with counsel, accountants and other
skilled persons knowledgeable in the relevant area to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such persons
and not contrary to this Agreement or any Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as the Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 7.6 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of the Certificates or the Notes and may deal with the Depositor, the Indenture
Trustee and the Servicer in banking transactions with the same rights as it
would have if it were not the Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses. In accordance with
Section 4.7 of the Sale and Servicing Agreement, the Owner Trustee shall receive
as compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Servicer and the Owner Trustee,
and the Owner Trustee shall be entitled to be reimbursed by the Servicer for its
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as the Owner Trustee may employ in connection with the exercise and performance
of its rights and its duties hereunder except any such expenses as may arise
from its gross negligence, wilful misfeasance, or bad faith
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or that is the responsibility of Certificateholders under this Agreement.
SECTION 8.2 Indemnification. In accordance with Section 4.7 of the Sale
and Servicing Agreement, the Servicer shall be liable as primary obligor for,
and shall indemnify the Owner Trustee (in such capacity or individually) and its
successors, assigns, agents and servants (collectively, the "Indemnified
Parties") from and against, any and all liabilities, obligations, losses,
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement, the
other Basic Documents, the Owner Trust Estate, the administration of the Owner
Trust Estate or the action or inaction of the Owner Trustee hereunder, except
only that the Servicer shall not be liable for or required to indemnify the
Owner Trustee from and against Expenses arising or resulting from any of the
matters described in the third sentence of Section 7.1. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against any Indemnified Party in respect of
which indemnity may be sought pursuant to this Section 8.2, such Indemnified
Party shall promptly notify the Servicer in writing, and the Servicer upon
request of the Indemnified Party shall retain counsel reasonably satisfactory to
the Indemnified Party (or, with the consent of the Servicer, counsel selected by
the Indemnified Party acceptable to the Servicer) to represent the Indemnified
Party and any others the Servicer may designate in such proceeding and shall pay
the reasonable fees and expenses of such counsel related to such proceeding. The
Servicer shall not be liable for any settlement of any claim or proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Servicer agrees to indemnify
any Indemnified Party from and against any loss or liability by reason of such
settlement or judgment. The Servicer shall not, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such proceeding.
SECTION 8.3 Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement. (a) This Agreement (other
than Article VIII) and the Issuer shall terminate and be of no further force or
effect, on the Distribution Date next succeeding the month which is six months
after the final distribution by the Owner Trustee of all moneys or other
property or proceeds of the Owner Trust Estate in accordance with the terms of
the Indenture, the Sale and Servicing Agreement and Article V, including the
payment to the Certificateholders of all amounts required to be paid to them
pursuant to this Agreement; provided, however, that in no event shall the Trust
created by this Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador to the Court of St. James's, living on the date of this Agreement.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder or Certificate Owner shall not (x) operate to terminate this
Agreement or the Issuer, nor (y) entitle such Certificateholder's or Certificate
Owner's legal representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of all or any
part of the Issuer or the Owner Trust Estate nor (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in clause (a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Issuer, specifying the
Distribution Date upon which the Certificateholders shall surrender their
Certificates to the Owner Trustee or the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner Trustee by letter to
the Certificateholders mailed within five Business Days of receipt of notice of
such termination from the Servicer given pursuant to Section 9.1(c) of the Sale
and Servicing Agreement, stating (i) the Distribution Date upon or with respect
to which final payment of the Certificates shall be made upon or with respect to
which final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Owner Trustee or the Paying
Agent therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Owner Trustee or the Paying Agent therein
specified. The Owner Trustee shall give such notice to the Certificate Registrar
(if other than the Owner Trustee) and the Paying Agent at the time such notice
is given to the Certificateholders. Upon presentation and surrender of the
Certificates, the Owner Trustee or the Paying Agent shall cause to be
distributed to the Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.2.
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If all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Owner Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Owner Trust Estate after
exhaustion of such remedies shall be distributed, subject to applicable escheat
laws, by the Owner Trustee to the Depositor.
(d) Any funds remaining in the Issuer after funds for final
distribution have been distributed or set aside for distribution shall be
distributed by the Owner Trustee to the Depositor.
(e) Upon the winding up of the Issuer and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation authorized to exercise corporate
trust powers; and having a combined capital and surplus of at least $100,000,000
and subject to supervision or examination by Federal or state authorities. If
such corporation shall publish reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 10.2. In addition, at all
times the Owner Trustee or a co-trustee shall be a person that satisfies the
requirements of Section 3807(a) of the Business Trust Statute (the "Delaware
Trustee").
SECTION 10.2 Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator. Upon receiving such
notice of resignation, the
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Administrator shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy of which shall be delivered to the successor Owner Trustee, and payment of
all fees owed to the outgoing Owner Trustee shall be made to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.3 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as the Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
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No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Trustee, the Noteholders and the Rating
Agencies. If the Administrator shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Owner Trustee, the successor
Owner Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.4 Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting form any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.1,
without the execution or filing of any instrument or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided further that the Owner Trustee shall mail notice of
such merger or consolidation to the Rating Agencies.
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Issuer, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. If the Delaware Trustee shall become incapable
of acting, resign or be removed, unless the Owner Trustee is qualified to act as
the Delaware Trustee, a successor co-trustee shall promptly be appointed in the
manner specified in this Section 10.5 to act as the Delaware Trustee. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 10.1 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.3.
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Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the
Owner Trustee shall be conferred upon and exercised or performed by the Owner
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Owner Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Issuer or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments. This Agreement may be amended
by the Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided that such action shall not, as evidenced by an
Opinion of Counsel, materially and adversely affect the interests of any
Noteholder or Certificateholder; provided, further, that the Depositor shall
deliver written notice of such amendments to each Rating Agency prior to the
execution of any such amendment. Notwithstanding the foregoing, no amendment
modifying the provisions of Section 5.2 shall become effective without
satisfaction of the Rating Agency Condition.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and, to the extent affected thereby, the consent
of the Holders of Certificates evidencing not less than 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 modifying
in any manner the rights of the Noteholders or the Certificateholders; provided
that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on the Receivables
or distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders, or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes and the Certificate Balance required to
consent to any such amendment.
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders or the
Noteholders pursuant to this Section 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 any
other consents of the Certificateholders provided for in this Agreement or in
any other Basic Document) and of evidencing the authorization of the execution
thereof by the Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
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Promptly after the execution of any amendment to the Certificate of the
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of the Trust, 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 Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for Sections 2.7
and 2.10, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Depositor, the Certificateholders and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 11.4 Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight courier
or mailed certified mail, return receipt requested and shall be deemed to have
been duly given upon receipt, if to the Owner Trustee, addressed to Wilmington
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attn: Corporate Trust Administration; if to the Depositor,
addressed to, Chase Manhattan Bank USA, N.A., c/o Chase Manhattan Automotive
Finance Corporation, 900 Stewart Avenue, Garden City, New York 11530, Attn:
Financial Controller; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this
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Agreement shall be conclusively presumed to have been duly given, regardless of
whether the Certificateholder receives such notice.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
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 11.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8 No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
equity interests in the Issuer only and do not represent interests in or
obligations of the Depositor, the Servicer, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof, and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, the Certificates or the other Basic Documents.
SECTION 11.9 [Reserved].
SECTION 11.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12 Certificate Transfer Restrictions. (a) The
Certificates may not be acquired by or for the account of (i) an employee
benefit plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) which is subject to the provisions
of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of the Code
other than a governmental or church plan described in Section 4975(g)(2) or (3)
of the Code), or (iii) any entity whose underlying assets include "plan assets"
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by reason of any such plan's investment in the entity (excluding any investment
company that is registered under the Investment Company Act of 1940, as amended)
(each, a "Benefit Plan"). By accepting and holding a Certificate, the Holder
thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan, and that no assets of a Benefit Plan were used to acquire the
Certificate. The foregoing restrictions shall not apply to acquisitions or
holdings of Certificates with assets of the general account of an insurance
company, to the extent that the acquisition or holding, respectively, of such
Certificates (i) is and will be permissible under Section 401(c) of ERISA and
final regulations
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thereunder or another exemption under ERISA and (ii) does not and will not
result in the contemplated operations of the Trust being treated as non-exempt
prohibited transactions.
(b) The Certificates may not be acquired by or for the account of an
individual or entity that is not a U.S. person as defined in Section 7701(a)(30)
of the Code and any transfer of a Certificate to a person that is not a U.S.
Person shall be void. By accepting and holding a Certificate, the Holder shall
be deemed to have represented and warranted under penalties of perjury that it
(or, if it is acting as a nominee, the beneficial owner) is a U.S. Person.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized as of
the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Patricia Evans
---------------------------------
Name: Patricia Evans
Title: Financial Services Officer
CHASE MANHATTAN BANK USA, N.A.,
as Depositor
By: /s/ Keith Schuck
---------------------------------
Name: Keith Schuck
Title: Vice President
<PAGE>
EXHIBIT A
NUMBER $
R- CUSIP NO.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) WHICH IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN (AS DEFINED IN SECTION 4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OTHER THAN A PLAN
DESCRIBED IN SECTION 4975(g)(2) OR (3) OF THE CODE), OR (iii) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF A PLAN'S INVESTMENT IN THE
ENTITY (EXCLUDING ANY INVESTMENT COMPANY THAT IS REGISTERED UNDER THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED) (EACH, A "PLAN"). BY ACCEPTING AND HOLDING THIS
CERTIFICATE, THE HOLDER HEREOF AND THE CERTIFICATE OWNER SHALL EACH BE DEEMED TO
HAVE REPRESENTED AND WARRANTED THAT IT IS NOT SUCH A PLAN AND THAT NO ASSETS OF
SUCH A PLAN WERE USED TO ACQUIRE THIS CERTIFICATE. THE FOREGOING RESTRICTIONS
SHALL NOT APPLY TO ACQUISITIONS OR HOLDINGS OF CERTIFICATES WITH ASSETS OF THE
GENERAL ACCOUNT OF AN INSURANCE COMPANY, TO THE EXTENT THAT THE ACQUISITION OR
HOLDING, RESPECTIVELY, OF SUCH CERTIFICATES (i) IS AND WILL BE PERMISSIBLE UNDER
SECTION 401(c) OF ERISA AND FINAL REGULATIONS THEREUNDER OR ANOTHER EXEMPTION
UNDER ERISA AND (ii) DOES NOT AND WILL NOT RESULT IN THE CONTEMPLATED OPERATIONS
OF THE TRUST BEING TREATED AS NON-EXEMPT PROHIBITED TRANSACTIONS.
THE CERTIFICATES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF AN
INDIVIDUAL OR ENTITY THAT IS NOT A U.S. PERSON AS DEFINED IN SECTION 7701(A)(30)
OF THE CODE. BY ACCEPTING AND HOLDING A CERTIFICATE, THE HOLDER SHALL BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT (OR, IF IT IS ACTING AS A NOMINEE, THE
BENEFICIAL OWNER) IS A U.S. PERSON.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN
INSTALLMENTS AS SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ON THE FACE HEREOF.]
Exhibit A, Page 1
<PAGE>
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
_____% ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Issuer, as defined below, the property of which includes a pool of retail
installment sales contracts or purchase money notes and security agreements and
other notes secured by new or used automobiles or light duty trucks and sold to
the Issuer by Chase Manhattan Bank USA, N.A., a national banking association.
(This Certificate does not represent an interest in or obligation of Chase
Manhattan Bank USA, N.A. or any of its Affiliates, except to the extent
described below.)
THIS CERTIFIES THAT ___________________________ is the registered owner
of ___________________________ nonassessable, fully-paid, beneficial ownership
interest in certain distributions of Chase Manhattan Auto Owner Trust 1997-B
(the "Issuer") formed by Chase Manhattan Bank USA, N.A., a national banking
association (the "Depositor"). This Certificate has a Certificate Rate of
% per annum.
Exhibit A, Page 2
<PAGE>
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Trust Agreement.
- ------------------------ -----------------------------
or
as Owner Trustee as Owner Trustee
By:_____________________ By:__________________________
Authenticating Agent
Exhibit A, Page 3
<PAGE>
Issuer was created pursuant to a Trust Agreement dated as of June 1,
1997 (the "Trust Agreement"), between the Depositor and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in Section 1.1 of the Sale and Servicing Agreement between the Issuer and
Chase Manhattan Bank USA, N.A., as Seller and Servicer, dated as of June 1,
1997, as the same may be amended or supplemented from time to time (the "Sale
and Servicing Agreement").
This Certificate is one of the duly authorized Certificates of the
Issuer designated as "______% Asset Backed Certificates" (herein called the
"Certificates"). Issued under the Indenture dated as of June 1, 1997, between
the Issuer and Norwest Bank Minnesota, National Association, as trustee (the
"Indenture"), are five classes of Notes designated as "Class A-1 ____% Money
Market Asset Backed Notes" (the "Class A-1 Notes"), "Class A-2 _____% Asset
Backed Notes" (the "Class A-2 Notes"), "Class A-3 ____% Asset Backed Notes" (the
"Class A-3 Notes"), "Class A-4 ____% Asset Backed Notes" (the "Class A-4
Notes"), and "Class A-5 ____% Asset Backed Notes" (the "Class A-5 Notes" and,
together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes, the "Notes"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement, to which
Trust Agreement the holder of this Certificate by virtue of the acceptance
hereof assents and by which such holder is bound.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
It is the intent of the Depositor and Certificateholders that, for
United States federal income tax purposes, the Issuer will be treated as a
partnership and the Depositor and the Certificateholders will be treated as
partners in that partnership. The Certificateholders by acceptance of a
Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as equity (i.e.,
partnership interests) in the Issuer.
Each Certificateholder, by its acceptance of a Certificate or a
beneficial interest in a Certificate, acknowledges and agrees that neither the
Depositor nor the Owner Trustee is authorized to elect to treat the Issuer other
than as a partnership for United States federal income tax purposes or any
relevant state tax purposes. Each Certificateholder, by its acceptance of a
Certificate or a beneficial interest in a Certificate, agrees not to take any
actions (or direct the Owner Trustee to take such acts or actions) that would
violate such restriction.
Exhibit A, Page 4
<PAGE>
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Servicer, the Owner Trustee, the Indenture Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein or in
the Trust Agreement, the Indenture or the other Basic Documents.
This certificate may not be acquired by or for the account of (i) an
employee benefit plan (as defined in section 3(3) of the employee retirement
income security act of 1974, as amended ("ERISA")) which is subject to the
provisions of Title I of ERISA, (ii) a plan (as defined in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the "Code") other than a plan
described in Section 4975(g)(2) or (3) of the Code), or (iii) any entity whose
underlying assets include "plan assets" by reason of a plan's investment in the
entity (excluding any investment company that is registered under the Investment
Company Act of 1940, as amended) (each, a "Plan"). By accepting and holding this
Certificate, the holder hereof and the Certificate Owner shall each be deemed to
have represented and warranted that it is not such a Plan and that no assets of
such a Plan were used to acquire this Certificate. The foregoing restrictions
shall not apply to acquisitions or holdings of Certificates with assets of the
general account of an insurance company, to the extent that the acquisition or
holding, respectively, of such Certificates (i) is and will be permissible under
Section 401(c) of ERISA and final regulations thereunder or another exemption
under ERISA and (ii) does not and will not result in the contemplated operations
of the Trust being treated as non-exempt prohibited transactions.
The Certificates may not be acquired by or for the account of an
individual or entity that is not a U.S. Person as defined in Section 7701(A)(30)
of the Code. By accepting and holding a Certificate, the Holder shall be deemed
to have represented and warranted that it (or, if it is acting as a nominee, the
Beneficial Owner) is a U.S. Person.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee or the Authentication
Agent, by manual or facsimile signature, this Certificate shall not entitle the
holder hereof to any benefit under the Trust Agreement or the Sale and Servicing
Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A, Page 5
<PAGE>
IN WITNESS WHEREOF, the Owner Trustee, on behalf of Issuer and not in
its individual capacity, has caused this Certificate to be duly executed.
CHASE MANHATTAN AUTO
OWNER TRUST 1997-B
By:_______________________________
not in its individual
capacity, but solely as
Owner Trustee
Dated: By:_______________________________
Exhibit A, Page 6
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or type name and address, including postal zip code,
of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing _________________________ as Attorney to transfer
said Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
___________________________________*
Signature Guaranteed:
___________________________________*
- --------
* NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or any
change whatever. Such signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or trust company.
Exhibit A, Page 7
<PAGE>
EXHIBIT B
CERTIFICATE OF TRUST
Exhibit B, Page 1
<PAGE>
EXHIBIT C
CERTIFICATE DEPOSITORY AGREEMENT
Exhibit C, Page 1
EXECUTION COPY
- --------------------------------------------------------------------------------
CHASE MANHATTAN AUTO OWNER TRUST 1997-B
Class A-1 5.744% Money Market Asset Backed Notes
Class A-2 6.100% Asset Backed Notes
Class A-3 6.350% Asset Backed Notes
Class A-4 6.500% Asset Backed Notes
Class A-5 6.600% Asset Backed Notes
------------------------
ADMINISTRATION AGREEMENT
Dated as of June 1, 1997
------------------------
The Chase Manhattan Bank
Administrator
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
1. Duties of Administrator............................................... 2
2. Records............................................................... 8
3. Compensation.......................................................... 8
4. Additional Information To Be Furnished to Issuer...................... 8
5. Independence of Administrator......................................... 8
6. No Joint Venture...................................................... 8
7. Other Activities of Administrator..................................... 8
8. Term of Agreement; Resignation and Removal of Administrator........... 9
9. Action upon Termination, Resignation or Removal....................... 11
10. Notices............................................................... 11
11. Amendments............................................................ 12
12. Successors and Assigns................................................ 12
13. GOVERNING LAW......................................................... 13
14. Headings.............................................................. 13
15. Counterparts.......................................................... 13
16. Severability.......................................................... 13
17. Not Applicable to The Chase Manhattan Bank in Other Capacities........ 13
18. Limitation of Liability of Owner Trustee, Indenture
Trustee and Administrator............................................. 13
19. Third-Party Beneficiary............................................... 14
20. Nonpetition Covenants................................................. 14
21. Liability of Administrator............................................ 14
21. Liability of Administrator............................................ 14
EXHIBIT A - Form of Power of Attorney
i
<PAGE>
ADMINISTRATION AGREEMENT dated as of June 1, 1997, among CHASE
MANHATTAN AUTO OWNER TRUST 1997-B, 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 5.744% Money Market Asset
Backed Notes (the "Class A-1 Notes"), the Class A-2 6.100% Asset Backed Notes
(the "Class A-2 Notes"), the Class A-3 6.350% Asset Backed Notes (the "Class A-3
Notes"), the Class A-4 6.500% Asset Backed Notes (the "Class A-4 Notes") and the
Class A-5 6.600% Asset Backed Notes (the "Class A-5 Notes" and, together with
the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, the "Notes") pursuant to the Indenture dated as of June 1, 1997 (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 6.750% Asset Backed Certificates (the "Certificates") pursuant
to the Trust Agreement dated as of June 1, 1997 (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 June 1, 1997 (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, N.A. ("Chase USA"), as Servicer and Seller,
(ii) a Depository Agreement dated June 18, 1997 (the "Note Depository
Agreement") among the Issuer, the Indenture Trustee, The Chase Manhattan Bank,
as Agent (the "Agent") and The Depository Trust Company, (iii) a Depository
Agreement dated June 18, 1997 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;
<PAGE>
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;
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:
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);
2
<PAGE>
(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 and, if applicable, Luxembourg, for registration of
transfer or exchange of Notes (Section 3.2);
(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
3
<PAGE>
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);
(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);
4
<PAGE>
(W) the preparation and, after execution by the Issuer,
the filing with the Commission, the Luxembourg Stock Exchange (if
applicable), 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);
(AA) provide the Indenture Trustee with the form of
notice necessary to deliver the notification of Noteholders and the
Luxembourg Stock Exchange (if applicable) 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);
(EE) the recording of the Indenture, if applicable
(Section 11.15); and
(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
5
<PAGE>
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.
(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 July 15, 1997, 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) [Reserved.]
(vi) 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
6
<PAGE>
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.
(vii) 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.
(viii) 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:
(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
7
<PAGE>
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.
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.
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.
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(c) hereof.
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.
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 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.
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
8
<PAGE>
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.
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
(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
9
<PAGE>
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.
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9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
8(a) or the 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.
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
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
with a copy to:
Chase Manhattan Bank USA, N.A.,
c/o Chase Manhattan Automotive Finance Corporation
900 Stewart Avenue
Garden City, New York 11530
Attention: Financial Controller
(b) if to the Administrator, to
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001-2697
(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
900 Stewart Avenue
Garden City, New York 11530
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.
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.
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
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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 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.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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.
15. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute but one and the same
agreement.
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.
17. Not Applicable to The Chase Manhattan Bank in Other Capacities.
Nothinin this Agreement shall affect any obligation The Chase Manhattan Bank may
have in any other capacity.
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.
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(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.
(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.
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.
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.
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
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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.
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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
1997-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee,
By: /s/ Patricia Evans
--------------------------------
Name: Patricia Evans
Title: Financial Services Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual
capacity but solely as Indenture
Trustee,
By: /s/ Marianna Stershic
---------------------------------
Name: Marianna Stershic
Title: Corporate Trust Officer
THE CHASE MANHATTAN BANK,
as Administrator,
By: /s/ Kimberly Costa
----------------------------------
Name: Kimberly Costa
Title: Second Vice President
<PAGE>
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 1997-B ("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 June 1, 1997 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 _______, 199_.
WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Owner Trustee
By:
-------------------------------
Name:
Title:
<PAGE>
EXECUTION COPY
SIDE AGREEMENT
Side Agreement (the "Side Agreement"), dated as of June 1, 1997,
between The Chase Manhattan Bank (the "Administrator") and Chase Manhattan
Bank USA, N.A. ("Chase USA").
WHEREAS, Chase Manhattan Auto Owner Trust 1997-B (the "Issuer") is
issuing the Class A-1 5.744% Money Market Asset Backed Notes (the "Class A-1
Notes"), the Class A-2 6.100% Asset Backed Notes (the "Class A-2 Notes"), the
Class A-3 6.350% Asset Backed Notes (the "Class A-3 Notes"), the Class A-4
6.500% Asset Backed Notes (the "Class A-4 Notes") and the Class A-5 6.600% Asset
Backed Notes (the "Class A-5 Notes" and, together with the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the "Notes")
pursuant to the Indenture, dated as of June 1, 1997 (as amended, modified or
supplemented from time to time in accordance with the provisions thereof, the
"Indenture"), between the Issuer and Norwest Bank Minnesota, National
Association, as indenture trustee (the "Indenture Trustee") and the 6.750% Asset
Backed Certificates (the "Certificates") pursuant to the Trust Agreement, dated
as of June 1, 1997 (as amended, modified or supplemented from time to time in
accordance with the provisions thereof, the "Trust Agreement"), between Chase
USA, 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 June 1, 1997 (as amended, modified or
supplemented from time to time in accordance with the provisions thereof, the
"Sale and Servicing Agreement"), between the Issuer and Chase USA, as Servicer
and the Seller, (ii) a Depository Agreement dated June 18, 1997 (the "Note
Depository Agreement"), among the Issuer, the Indenture Trustee, The Chase
Manhattan Bank, as Agent (the "Agent") and The Depository Trust Company, (iii) a
Depository Agreement dated June 18, 1997 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 Indenture, and (v) the Administration Agreement dated as
of June 1, 1997 among the Issuer, the Administrator and the Indenture Trustee
(the "Administration Agreement" and, together with the Sale and Servicing
Agreement, the Trust Agreement, the Depository Agreements and the Indenture, 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 therefor pledged
<PAGE>
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 the
Administration Agreement and the Related Agreements as the Issuer may from time
to time request;
WHEREAS Chase USA has the capacity to perform certain services required
by the Administration Agreement and is willing to perform such services for the
Administrator on the terms set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. Duties of Chase USA. (a) Chase USA agrees to assist the
Administrator in the performance of such duties under the Administration
Agreement as the Administrator shall reasonably request, including without
limitation by assuming primary responsibility for the performance of the
foregoing, Chase USA shall perform the following obligations on behalf of the
Administrator:
i) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of collateral in accordance with
the provisions of the Indenture (Section 1(a)(i)(D) of the
Administration Agreement);
ii) 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 (Section 1(a)(i)(K) of the Administration Agreement);
iii) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligation under the Indenture (Section 1(a)(i)(N) of the
Administration Agreement);
iv) 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 1(a)(i)(Q) of the
Administration Agreement);
v) 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
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shall have occurred and be continuing (Section 1(a)(i)(R) of the
Administration Agreement);
vi) 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 (Section 1(a)(i)(X) of the
Administration Agreement);
vii) 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 1(a)(i)(BB) of the Administration Agreement); and
viii) 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 1(a)(i)(CC)
of the Administration Agreement).
(b) Chase USA shall, from its own funds, directly pay, or
reimburse the Administrator for the payment of, all expenses incurred by the
Administrator in connection with the performance of its duties and obligations
under the Administration Agreement, including but not limited to the expenses of
legal counsel and accountants.
(c) In addition to the foregoing, Chase USA shall indemnify
the Administrator and its successors, assigns, agents and servants (the
"Indemnified Parties") from and against any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever (the "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Administrator or any
Indemnified Party in any way relating to or arising out of the Administration
Agreement, provided, that Chase USA shall not be liable for or required to
indemnify the Administrator from and against Expenses arising or resulting from
the Administrator's willful misconduct, bad faith or gross negligence.
(d) The services of Chase USA to the Issuer under this
Agreement are not to be deemed exclusive, and Chase USA shall be free to render
similar services to others. In addition, it is understood and agreed that,
notwithstanding anything contained herein to the contrary, Chase USA or any of
its affiliates, in addition to its services for the Issuer pursuant to this
Agreement, shall be entitled to engage in any other kind of business, agency or
trust relationship with the Issuer, and to perform all services in connection
therewith, as if it were not acting on behalf of the Administrator hereunder.
Chase USA shall not, by virtue of its or any of its affiliates acting in any
3
<PAGE>
other capacity under any other agreement or arrangement with the Issuer or in
connection with its other relationships with the Issuer be deemed to have duties
or responsibilities hereunder or be deemed to be held to a standard of care in
connection with the performance of its duties on behalf of the Administrator
hereunder, other than as expressly provided in this Agreement. Chase USA may act
on behalf of the Administrator hereunder without regard to and without
additional duties or obligations arising from its or any of its affiliates
acting in any other capacity under any other agreement or arrangement with the
Issuer or in connection with its other relationships with the Issuer.
2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3. 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.
4. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
5. 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.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Sale and Servicing Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Side Agreement
to be duly executed by their respective officers as of the date first above
written.
THE CHASE MANHATTAN BANK,
as Administrator
By: /s/ Kimberly Costa
--------------------------
Name: Kimberly Costa
Title: Second Vice President
CHASE MANHATTAN BANK USA, N.A.
By: /s/ Keith Schuck
--------------------------
Name: Keith Schuck
Title: Vice President
