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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): April 15, 1998
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
(Exact Name of registrant specified in its charter)
United States 333-36939 22-2382028
(State or other Jurisdiction of (Commission File Number) (I.R.S. employer
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 April 15, 1998, the Sale and Servicing Agreement,
dated as of April 1, 1998, between Chase Manhattan Auto Owner Trust
1998-B, as Issuer and Chase Manhattan Bank USA, National Association, as
Seller and Servicer, was executed and entered into by the parties
thereto.
On April 15, 1998, the Indenture, dated as of April 1,
1998, between Chase Manhattan Auto Owner Trust 1998-B, as Issuer, and
Norwest Bank Minnesota, National Association, as Indenture Trustee, was
executed and entered into by the parties thereto.
On April 15, 1998, the amended and restated Trust
Agreement, dated as of April 1, 1998, between Chase Manhattan Bank USA,
National Association, as Depositor, and Wilmington Trust Company, as
Owner Trustee, was executed and entered into by the parties thereto.
On April 15, 1998, the Administration Agreement, dated
as of April 1, 1998, between Chase Manhattan Auto Owner Trust 1998-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
4.1(B)(2) Sale and Servicing Agreement, dated April 1, 1998.
4.2(2) Indenture, dated April 1, 1998.
4.3(C)(2) Amended and Restated Trust Agreement, dated April 1, 1998.
4.4(2) Administration Agreement, dated April 1, 1998.
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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,
NATIONAL ASSOCIATION (Registrant)
By: /s/ Keith Schuck
----------------------
Name: Keith Schuck
Title: Controller
Date: April 15, 1998
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4
INDEX TO EXHIBITS
Exhibit Number Exhibit Sequentially
- -------------- ------- Numbered Pages
--------------
4.1(B)(2) Sale and Servicing Agreement, dated April 1, 1998.
4.2(2) Indenture, dated April 1, 1998.
4.3(C)(2) Amended and Restated Trust Agreement, dated April 1, 1998.
4.4(2) Administration Agreement, dated April 1, 1998.
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CONFORMED COPY
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
a National Banking Association,
as Seller and Servicer
and
CHASE MANHATTAN AUTO OWNER TRUST 1998-B,
as Issuer
SALE AND SERVICING AGREEMENT
Dated as of April 1, 1998
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TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.......................................... 1
SECTION 1.2 Usage of Terms....................................... 24
SECTION 1.3 Simple Interest and Actuarial Method; Methods of
Allocating Payments or Receivables; Allocations................. 24
SECTION 1.4 Calculations Relating to the May 1999 Distribution
Date............................................................ 25
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.1 Conveyance of Receivables............................ 25
SECTION 2.2 Closing.............................................. 26
ARTICLE III
THE RECEIVABLES
SECTION 3.1 Representations and Warranties of Seller; Conditions
Relating to Receivables......................................... 26
SECTION 3.2 Repurchase Upon Breach or Failure of a Condition..... 30
SECTION 3.3 Custody of Receivable Files.......................... 31
SECTION 3.4 Duties of Servicer as Custodian...................... 31
SECTION 3.5 Instructions; Authority to Act....................... 32
SECTION 3.6 Custodian's Indemnification.......................... 33
SECTION 3.7 Effective Period and Termination..................... 33
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1 Duties of Servicer................................... 33
SECTION 4.2 Collection of Receivable Payments; Refinancing....... 34
SECTION 4.3 Realization Upon Receivables......................... 35
SECTION 4.4 Maintenance of Security Interests in Financed
Vehicles........................................................ 35
SECTION 4.5 Covenants of Servicer................................ 35
SECTION 4.6 Purchase of Receivables Upon Breach.................. 36
SECTION 4.7 Servicing Fee........................................ 36
SECTION 4.8 Servicer's Certificate............................... 37
i
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SECTION 4.9 Annual Statement as to Compliance.................... 37
SECTION 4.10 Annual Audit Report................................. 38
SECTION 4.11 Access by Holders to Certain Documentation and
Information Regarding Receivables............................... 38
SECTION 4.12 Reports to Holders and the Rating Agencies.......... 39
SECTION 4.13 Reports to the Securities and Exchange Commission... 39
ARTICLE V
ACCOUNTS; DISTRIBUTIONS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.1 Establishment of Accounts............................ 39
SECTION 5.2 Collections.......................................... 40
SECTION 5.3 [Reserved]........................................... 41
SECTION 5.4 Additional Deposits.................................. 41
SECTION 5.5 Distributions........................................ 41
SECTION 5.6 Reserve Account...................................... 43
SECTION 5.7 Net Deposits......................................... 45
SECTION 5.8 Statements to Certificateholders and Noteholders..... 45
ARTICLE VI
THE SELLER
SECTION 6.1 Representations of Seller............................ 46
SECTION 6.2 Liability of Seller; Indemnities..................... 48
SECTION 6.3 Merger or Consolidation of Seller.................... 48
SECTION 6.4 Limitation on Liability of Seller and Others......... 48
SECTION 6.5 Seller May Own Notes and Certificates................ 49
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer.......................... 49
SECTION 7.2 Liability of Servicer; Indemnities................... 50
SECTION 7.3 Merger or Consolidation of Servicer.................. 51
SECTION 7.4 Limitation on Liability of Servicer and Others....... 51
SECTION 7.5 Servicer Not To Resign............................... 52
SECTION 7.6 Delegation of Duties................................. 53
ARTICLE VIII
EVENTS OF SERVICING TERMINATION
ii
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Page
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SECTION 8.1 Events of Servicing Termination...................... 53
SECTION 8.2 Indenture Trustee to Act; Appointment of Successor
Servicer........................................................ 55
SECTION 8.3 Notification to Noteholders and Certificateholders... 55
SECTION 8.4 Waiver of Past Defaults.............................. 55
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables; Trust
Termination..................................................... 56
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment........................................... 57
SECTION 10.2 Protection of Title to Owner Trust Estate........... 59
SECTION 10.3 GOVERNING LAW....................................... 61
SECTION 10.4 Notices............................................. 61
SECTION 10.5 Severability of Provisions.......................... 61
SECTION 10.6 Assignment.......................................... 61
SECTION 10.7 Certificates and Notes Nonassessable and Fully Paid. 61
SECTION 10.8 Third-Party Beneficiaries........................... 61
SECTION 10.9 Assignment to Indenture Trustee..................... 62
SECTION 10.10 Limitation of Liability of Owner Trustee and
Indenture Trustee............................................... 62
iii
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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
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This SALE AND SERVICING AGREEMENT, dated as of April 1, 1998,
(as amended, supplemented or otherwise modified and in effect from time to
time, this "Agreement") is made between CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association having its principal executive
offices located at 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 1998-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.
"Actuarial Method" means the method of allocating a
fixed level payment to principal and interest, pursuant to which each
monthly installment consists of an amount of interest equal to the 1/12
of the annual contract rate of interest on the loan multiplied by the
scheduled principal balance of the loan and an amount of principal equal
to the remainder of the monthly payment.
"Actuarial Receivable" means any Receivable providing
for the allocation of payments made thereunder to principal and interest
in accordance with the Actuarial Method.
"Adjusted Contract Value" of an Actuarial Receivable,
as of the close of business on the last day of any Collection Period,
means the excess of the Contract Value of such Actuarial Receivable at
the close of business on such date over the Carryover Scheduled Interest
Payment on such Actuarial Receivable for such Collection Period.
"Administration Agreement" means the Administration
Agreement, dated as of April 1, 1998, among the Issuer, the Administrator
and the Indenture Trustee, as the same may be amended and supplemented
from time to time.
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2
"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 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 all
Receivables that became Defaulted Receivables during the related
Collection Period minus (ii) the Liquidation Proceeds allocable to
principal collected during such Collection Period with respect to any
Defaulted Receivables.
"Amount Financed" in respect of a Receivable means the
amount advanced under the Receivable toward the purchase price of the
Financed Vehicle and related costs.
"Assertion" has the meaning specified in Section 4.10.
"Authenticating Agent" has the meaning specified in
Section 2.13 of the Indenture and shall initially be the corporate trust
office of Chase, and its successors and assigns in such capacity.
"Authorized Officer" means any officer of the Owner
Trustee, Indenture Trustee or Servicer who is authorized to act on behalf
of the Owner Trustee, Indenture Trustee or Servicer, as applicable, and
who is identified as such on the list of authorized officers delivered by
each such party on the Closing Date.
"Available Interest" means, for any Distribution Date,
the sum of (i) with respect to each Simple Interest Receivable, that
portion of Collections on such Simple Interest Receivable received during
the related Collection Period allocated to interest, (ii) with respect to
each Actuarial Receivable, the lesser of (A) the amount of Collections
received during the related Collection Period on such Actuarial
Receivable and (B) the Scheduled Interest Payment on such Actuarial
Receivable for such Collection Period and (iii) with respect to each
Receivable repurchased by the Seller or purchased by the Servicer under
an obligation that arose during the related Collection Period, that
portion of the Repurchase Amount received with respect to such
Repurchased Receivable that would have been treated as
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3
Available Interest if the Obligor thereof had prepaid such Receivable in
full on the date as of which such Receivable was repurchased or
purchased.
"Available Principal" means, for any Distribution Date,
the sum of (i) with respect to each Simple Interest Receivable, that
portion of Collections on such Simple Interest Receivable received during
the related Collection Period allocated to the principal balance of such
Simple Interest Receivable, (ii) with respect to each Actuarial
Receivable, the lesser of (A) the excess, if any, of (x) the amount of
Collections received during the related Collection Period on such
Actuarial Receivable over (y) the Scheduled Interest Payment on such
Actuarial Receivable for such Collection Period and (B) the amount (not
less than zero) equal to (x) the Adjusted Contract Value of such
Receivable as of the close of business on the last day of the Collection
Period preceding the related Collection Period less (y) the Adjusted
Contract Value of such Receivable as of the close of business on the last
day of the related Collection Period and (iii) with respect to each
Receivable repurchased by the Seller or purchased by the Servicer under
an obligation that arose during the related Collection Period, that
portion of the Repurchase Amount received with respect to such
Repurchased Receivable that would have been treated as Available
Principal if the Obligor thereof had prepaid such Receivable in full on
the date as of which such Receivable was repurchased or purchased.
"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.
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4
"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.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as amended from time to time.
"Carryover Scheduled Interest Payment" on any Actuarial
Receivable means, for any Collection Period, the excess, if any, of (i)
the Scheduled Interest Payment on such Actuarial Receivable for such
Collection Period over (ii) the amount of Collections received during
such Collection Period on such Actuarial Receivable.
"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" means an amount equal to
$32,604,142.65 as of the Closing Date and, thereafter, shall be an amount
equal to such initial Certificate Balance, reduced by all amounts
allocable to principal previously distributed to Certificateholders. The
Certificate Balance shall also be reduced on any 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 such
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 or any
similar agreement with any successor Clearing Agency.
"Certificate Distribution Account" has the meaning specified
in Section 5.1 of the Trust Agreement.
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5
"Certificate Final Scheduled Distribution Date" means
the October 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 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 initial Certificate Balance. The Certificate Pool
Factor will be 1.00000000 as of the Cutoff Date; thereafter, the
Certificate Pool Factor will decline to reflect reductions in the
Certificate Balance.
"Certificate Rate" means 6.050% per annum.
"Certificate Register" and "Certificate Registrar"
means the register maintained and the registrar appointed pursuant to
Section 3.4 of the Trust Agreement.
"Certificated Security" means a "certificated security" within
the meaning of the Relevant UCC.
"Certificateholder" means the Person in whose name a
Certificate is registered in the Certificate Register, except that,
solely for the purpose of giving any consent, request, waiver or demand
pursuant to any of the Basic Documents (other than pursuant to Section
4.3 of the Trust Agreement), the interest evidenced by any Certificate
registered in the name of the Seller, the Servicer or any Person actually
known by an Authorized Officer of the Owner Trustee to be an Affiliate of
the Seller or the Servicer shall not be taken into account in determining
whether the requisite percentage necessary to effect any such consent,
request or waiver shall have been obtained.
"Certificateholders' Distributable Amount" means for any
Distribution Date, the sum of (x) the Certificateholders' Principal
Distributable Amount and (y) the Certificateholders' Interest Distributable
Amount.
"Certificateholders' Interest Carryover Shortfall"
means, (a) for the initial 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,
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6
at the Certificate Rate from and including such preceding Distribution
Date to, but excluding, the current Distribution Date.
"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 payments of
principal to the Certificateholders on or prior to 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 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.
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"Chase Direct Receivable" means a Receivable originated
by Chase directly with an Obligor without the involvement of a Dealer.
"Class A-1 Event" shall have occurred if any Class A-1
Notes are outstanding on the April 1999 Distribution Date (after giving
effect to any payments made on such date).
"Class A-1 Interest Rate" means 5.578% per annum.
"Class A-1 Notes" means the Class A-1 5.578% Asset
Backed Notes, substantially in the form of Exhibit B to the Indenture.
"Class A-2 Interest Rate" means 5.729% per annum.
"Class A-2 Notes" means the Class A-2 5.729% Asset
Backed Notes, substantially in the form of Exhibit C to the Indenture.
"Class A-3 Interest Rate" means 5.750% per annum.
"Class A-3 Notes" means the Class A-3 5.750% Asset
Backed Notes, substantially in the form of Exhibit D to the Indenture.
"Class A-4 Interest Rate" means 5.800% per annum.
"Class A-4 Notes" means the Class A-4 5.800% Asset
Backed Notes, substantially in the form of Exhibit E to the Indenture.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The initial
Clearing Agency shall be The Depository Trust Company.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other person for whom from time to
time a Clearing Agency effects book-entry transfers of securities
deposited with the Clearing Agency (including a Foreign Clearing Agency).
"Closing Date" means April 15, 1998.
"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
April 1, 1998 until Chase Manhattan Auto Owner Trust 1998-B shall
terminate pursuant to Article IX of the Trust Agreement.
"Collections" means all collections in respect of Receivables.
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8
"Contract Rate" of a Receivable means the annual rate
of interest stated in such Receivable.
"Contract Value" of an Actuarial Receivable, as of the
close of business on the last day of any Collection Period means the
amount (excluding any Late Fees with respect to such Actuarial
Receivable) that would have been payable by the Obligor thereof if such
Obligor were to prepay such Actuarial Receivable in full as of such date.
"Control" means (a) with respect to a Security
Entitlement, the Indenture Trustee (i) is identified in the records of
the Securities Intermediary for such Security Entitlement as the person
having such Security Entitlement against such Security Intermediary or
(ii) has obtained the agreement, in writing, of the Securities
Intermediary for such Security Entitlement that it will comply with
orders of the Indenture Trustee regarding the transfer or redemption of
such Security Entitlement without further consent of any other person; or
(b) with respect to a United States Security Entitlement, (i) the
Indenture Trustee is a participant in the book entry system maintained by
the Federal Reserve Bank that is acting as fiscal agent for the issuer of
such United States Security Entitlement and such Federal Reserve Bank has
indicated by book entry that such United States Security Entitlement has
been credited to the Indenture Trustee's securities account in such book
entry system or (ii) (A) the Indenture Trustee (x) is identified in the
records of the Securities Intermediary for such United States Securities
Entitlement as the person having such Securities Entitlement against such
Securities Intermediary or (y) has obtained the agreement, in writing, of
the Securities Intermediary for such Security Entitlement that it will
comply with orders of the Indenture Trustee regarding the transfer or
redemption of such Security Entitlement without further consent of any
other person, (B) the Securities Intermediary for such United States
Securities Entitlement is a participant in the book entry system
maintained by the Federal Reserve Bank that is acting as fiscal agent for
the issuer of such United States Security Entitlement and (C) such
Federal Reserve Bank has indicated by book entry that such United States
Security Entitlement has been credited to such Securities Intermediary's
securities account in such book entry system.
"Corporate Trust Office" means the New York office of
the Indenture Trustee or the Wilmington, Delaware office of the Owner
Trustee, as applicable.
"Cutoff Date" means April 1, 1998.
"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.
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9
"Default" means any occurrence that is, or with notice
or the lapse of time or both would become, an Event of Default.
"Defaulted Receivable" means a Receivable (other than a
Repurchased Receivable) as to which the Servicer has determined based on
its usual collection practices and procedures, during any Collection
Period, that eventual payment in full of the Amount Financed (including
accrued interest thereon) is unlikely; provided that a Receivable shall
become a Defaulted Receivable during the calendar month in which more
than 10% of the 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 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) with respect to any Physical Property (that is not
either a United States Security Entitlement or a Security Entitlement),
physical delivery thereof to the Indenture Trustee or its nominee or
custodian by an effective endorsement, or registered in the name of, the
Indenture Trustee or its nominee or custodian endorsed in blank; and
(b) with respect to any Uncertificated Security (i) if
the issuer of such Uncertificated Security is organized under the laws of
an Old Article 8 Jurisdiction, 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, agent 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, agent
or custodian; and (ii) if the issuer of such Uncertificated Security is
organized under the laws of a jurisdiction that has adopted Revised
Article 8, (A) the issuer registers the Indenture Trustee as the
registered owner thereof or (B) the Indenture Trustee otherwise satisfies
the requirements of Revised Article 8.
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10
"Deposit Date" means the Business Day immediately preceding
each Distribution Date.
"Depositor" means the Seller in its capacity as Depositor
under the Trust Agreement.
"Depository Agreements" means, collectively, the Certificate
Depository Agreement and the Note Depository Agreement.
"Determination Date" means the 10th calendar day of the
month (or, if such 10th calendar day is not a Business Day, the Business
Day preceding the 10th calendar day of the month) immediately succeeding
the related Collection Period.
"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, May 15, 1998, 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 April 1999 Collection
Period means (x) May 10, 1999 with respect to the Class A-1 Notes, and
(y) May 15, 1999 with respect to the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes.
"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.
"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.
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11
"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. Section 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. Section 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.
"Financial Asset" means a "financial asset" within the
meaning of Section 8- 102(a)(9) of Revised Article 8.
"Fitch" means Fitch IBCA, Inc. 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. Section 1511.1.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and 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
<PAGE>
12
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. Section 81.2.
"Indemnified Parties" has the meaning specified in Section 8.2
of the Trust Agreement.
"Indenture" means the Indenture dated as of April 1,
1998, 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 that the signer has read the definition of
"Independent" in this Agreement and that the signer is Independent within
the meaning thereof.
"Insolvency Event" means, for a specified Person, (a)
the filing of a decree or order for relief by a court having jurisdiction
in the premises in respect of such Person or any substantial part of its
property in an involuntary case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver (including any receiver appointed under the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended), liquidator, assignee, custodian, trustee, sequestrator or
similar official for such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall
<PAGE>
13
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 1998-B,
a Delaware business trust, until a successor replaces it and, thereafter,
means such successor and, for purposes of any provision contained in the
Indenture and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written
order or request signed in the name of the Issuer by any of its
authorized officers and delivered to the Indenture Trustee.
"Late Fees" means any late charges, credit related
extension fees, non-credit related extension fees or other administrative
fees or similar charges allowed by applicable law with respect to the
Receivables.
"Lien" means a security interest, lien, charge, pledge
or encumbrance of any kind other than tax liens, mechanics' liens or any
other liens that attach by operation of law.
"Liquidation Proceeds" means, with respect to any
Receivable, (i) insurance proceeds, (ii) the monies collected during a
Collection Period from whatever source on a Defaulted Receivable and
(iii) proceeds of a Financed Vehicle sold after repossession, in each
case net of any liquidation expenses and payments required by law to be
remitted to the Obligor.
"May 1999 Class A-1 Note Distribution" means the amount
distributable from the Collection Account pursuant to Section 5.5(b) to
the Noteholders of the Class A-1 Notes on the May 1999 Distribution Date
with respect to the Class A-1 Notes if the Class A-1 Event has occurred.
"Moody's" means Moody's Investors Service, a division
of Dun & Bradstreet Corporation, and its successors and assigns.
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14
"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 Date and the last day of the
related Collection Period.
"Note" means a Class A-1 Note, a Class A-2 Note, a
Class A-3 Note or a Class A-4 Note.
"Note Depository Agreement" means the agreement among
the Issuer, the Indenture Trustee, Chase, as agent for The Depository
Trust Company and The Depository Trust Company, as the initial Clearing
Agency, dated the Closing Date, relating to the Notes, substantially in
the form of Exhibit F to the Indenture, as the same may be amended or
supplemented from time to time or any similar agreement with any
successor Clearing Agency.
"Note Distribution Account" means the account
designated as such, established and maintained pursuant to Section
5.1(a)(ii).
"Note Final Scheduled Distribution Date" means for (a)
the Class A-1 Notes, the May 1999 Distribution Date, (b) the Class A-2
Notes, the June 2000 Distribution Date, (c) the Class A-3 Notes, the
October 2001 Distribution Date, and (d) the Class A-4 Notes, the February
2003 Distribution Date.
"Note Owner" means, with respect to a Book-Entry Note,
the person who is the owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or Foreign Clearing Agency, or on the books
of a direct or indirect Clearing Agency Participant.
"Note Pool Factor" for each class of Notes as of the
close of business on a 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
class of Notes, (a) for the initial Distribution Date, zero, and (b) for any
other Distribution Date, 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,
<PAGE>
15
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 class of Notes for such Distribution Date.
"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
basis of a 360-day year for the actual number of days elapsed (which will
be 25 days for the May 1999 Distribution Date for the Class A-1 Notes)
and (ii) on the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
"Noteholders' Monthly Principal Distributable Amount"
means, for any 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 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" means the register
maintained and the registrar appointed pursuant to Section 2.4 of the
Indenture.
"Obligor" on a Receivable means the purchaser or the
co-purchasers of the Financed Vehicle purchased in part or in whole by the
execution and delivery of such
<PAGE>
16
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.
"Old Article 8 Jurisdiction" means any jurisdiction
that has not adopted Revised Article 8.
"Opinion of Counsel" means a written opinion of counsel
(who may be counsel to the Seller or the Servicer) reasonably acceptable
in form and substance to the Indenture Trustee, meeting the requirements
of Section 11.1 of the Indenture (or in the case of an Opinion of Counsel
delivered to the Owner Trustee, reasonably acceptable in form and
substance to the Owner Trustee).
"Optional Purchase Percentage" shall be 10%.
"Original Pool Balance" shall be $1,086,404,142.65.
"Outstanding" means, when used with respect to Notes,
as of any date of determination, all Notes theretofore authenticated and
delivered under the Indenture except:
(a) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited
with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes (provided that if such Notes are to be
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
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17
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Indenture Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Seller or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means, when used with respect to
Notes, as of any date of determination, the aggregate principal amount of
all Notes, or a class of Notes, as applicable, Outstanding as of such
date.
"Owner Trust Estate" means all right, title and
interest of the Issuer in and to the property and rights assigned to the
Issuer pursuant to Article II of this Agreement, all funds on deposit
from time to time in the Trust Accounts (other than the Note Distribution
Account) and the Certificate Distribution Account and all other property
of Issuer from time to time, including any rights of the Owner Trustee
and the Issuer pursuant to this Agreement.
"Owner Trustee" means Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely
as owner trustee under the Trust Agreement, and any successor Owner
Trustee thereunder.
"Paying Agent" means: (a) when used in the Indenture or
otherwise with respect to the Notes, the Indenture Trustee or any other
Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 of the Indenture and is authorized by the
Indenture Trustee to make the payments to and distributions from the
Collection Account and the Note Distribution Account, including payment
of principal of or interest on the Notes on behalf of the Issuer; and (b)
when used in the Trust Agreement or otherwise with respect to the
Certificates, the Owner Trustee or any other paying agent or co-paying
agent appointed pursuant to Section 3.9 of the Trust Agreement, and in
the case of the Indenture with respect to the Notes, and the Trust
Agreement with respect to the Certificates, such Paying Agent shall
initially be the corporate trust office of Chase.
"Permitted Investments" means, at any time, any one or
more of the following obligations, securities (certificated or
uncertificated) or instruments (excluding any security with the "r"
symbol attached to its rating):
(i) obligations of the United States of America or any
agency thereof; provided such obligations are backed by the full
faith and credit of the United States of America;
(ii) general obligations of or obligations guaranteed
as to the timely payment of interest and principal by any state
of the United States of America or the District of Columbia then
rated "A-1+" or "AAA" by Standard & Poor's, "F1+" or "AAA" by
Fitch (if rated by Fitch) and "P-1+" or Aaa by Moody's;
(iii) commercial paper which is then rated P-1 by
Moody's, "F1+" by Fitch (if rated by Fitch) and "A-1+" by
Standard & Poor's;
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18
(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, "F1+" by Fitch (if rated by Fitch)
and "A- 1+" by Standard & Poor's;
(v) demand or time deposits of, or certificates of
deposit issued by, any bank, trust company, savings bank or
other savings institution; provided such deposits or
certificates of deposit are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation the short term
unsecured debt or deposits of which are rated P-1 by Moody's,
"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;
(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, "F1" 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
<PAGE>
19
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, limited liability company, estate, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Physical Property" means banker's acceptances,
commercial paper, negotiable certificates of deposits and other
obligations that constitute "instruments" within the meaning of Section
9-105(l)(i) of the Relevant UCC and are susceptible to physical delivery
and Certificated Securities.
"Pool Balance" as of any date of determination means,
the aggregate Principal Balance of the Receivables as of the close of
business on the last day of the preceding Collection Period, after giving
effect to all payments received from Obligors and Repurchase Amounts to
be remitted by the Servicer or the Seller, as the case may be, for such
Collection Period and all losses realized on Receivables liquidated
during such Collection Period.
"Predecessor Note" means, with respect to any
particular Note, every previous Note evidencing all or a portion of the
same debt as that evidenced by such particular Note; and, for the purpose
of this definition, any Note authenticated and delivered under Section
2.5 of the Indenture in lieu of a mutilated, lost, destroyed or stolen
Note shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Note.
"Principal Balance" of a Receivable, as of the close of
business on the last day of any Collection Period, means (i) with respect
to a Simple Interest Receivable, the Amount Financed minus that portion
of all payments received on or prior to such date allocable to principal
and (ii) with respect to an Actuarial Receivable, the Adjusted Contract
Value thereof as of the close of business on such date. 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 the following amounts, without duplication: (i) Available
Principal and (ii) Aggregate Net Losses.
"Principal Prepayment" means a payment or other
recovery of principal on a Receivable (including insurance proceeds and
Liquidation Proceeds applied to principal on a Receivable) which is
received in advance of its due date.
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20
"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.
"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 and all monies received thereunder on or
after the Cutoff Date.
"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.
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21
"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 in the case of a redemption of
the Class A-4 Notes pursuant to Section 10.1 of the Indenture, an amount
equal to the Outstanding Amount of the Class A-4 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 "F1+"
(if rated by Fitch) and from Standard & Poor's of "A-1+," and a long-term
unsecured debt rating of not less than Aa3 by Moody's, "AA" by Fitch (if
rated by Fitch) and "AA-" by Standard & Poor's.
"Reserve Account" means the account designated as such,
established and maintained pursuant to Section 5.6.
"Reserve Account Initial Deposit" means an amount equal to
$16,296,062.14.
"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, Securities Entitlements,
Uncertificated Securities or otherwise).
"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
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22
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Revised Article 8" means Revised Article 8 (1994 Version)
(and corresponding amendments to Article 9) as promulgated by the National
Conference of Commissioners on Uniform State Laws.
"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. Section 354.1.
"Scheduled Interest Payment" on any Actuarial
Receivable means, for any Collection Period, the sum (i) the Carryover
Scheduled Interest Payment, if any, on such Actuarial Receivable for the
immediately preceding Collection Period and (ii) that portion of the
payment scheduled to be made by the Obligor during the Collection Period
immediately following such Collection Period on such Actuarial Receivable
that is allocable to interest using the Actuarial Method.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means a "securities
intermediary" within the meaning of Section 8-102(a)(14) of Revised
Article 8.
"Security Entitlement" means a "security entitlement"
within the meaning of Section 8-102(a)(17) of Revised Article 8.
"Seller" means Chase Manhattan Bank USA, National
Association, 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, National Association (in the same capacity) pursuant to Section
6.3.
"Servicer" means Chase Manhattan Bank USA, National
Association, a national banking association with its principal offices in
Wilmington, Delaware, in its capacity as the servicer of the Receivables
under this Agreement, and each successor to Chase Manhattan Bank USA,
National Association (in the same capacity) pursuant to Section 7.3, and
each successor servicer pursuant to Section 8.2.
"Servicer's Certificate" means a certificate,
substantially in the form of Exhibit A attached hereto, completed and
executed by the Servicer by its chairman of the board, the president,
treasurer, controller or any executive, senior vice president or vice
president pursuant to Section 4.8.
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23
"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.
"Simple Interest Method" means the method of allocating
a fixed level payment to principal and interest, pursuant to which the
portion of such payment that is allocated to interest is equal to the
product of the fixed rate of interest multiplied by the unpaid Principal
Balance multiplied by the period of time elapsed since the preceding
payment of interest was made, and the remainder of such payment is
allocable to principal.
"Simple Interest Receivable" means any Receivable
providing for the allocation of payments made thereunder to principal and
interest in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" with respect to any
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)
$8,148,031.07 and (ii) such Pool Balance; provided that the Specified
Reserve Account Balance will be calculated using a percentage of 6.00%
for any Distribution Date (beginning with the July 1998 Distribution
Date) for which the Average Net Loss Ratio exceeds 1.75% or the Average
Delinquency Percentage exceeds 1.75%. Upon written notification to the
Indenture Trustee by the Seller, the Specified Reserve Account Balance
may be reduced to a lesser amount as determined by the Seller so long as
such reduction satisfies the Rating Agency Condition.
"Standard & Poor's" means Standard & Poor's Ratings
Services and its successors and assigns.
"Total Distribution Amount" means, for any Distribution
Date, the sum of Available Interest and Available Principal for 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. Section 357.2.
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24
"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
April 1, 1998, 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.
"Uncertificated Security" means an "uncertificated security"
within the meaning of the relevant UCC.
"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 attached to this Agreement
unless otherwise specified, and each such Exhibit is part of the terms of
this Agreement.
SECTION 1.3 Simple Interest and Actuarial Method;
Methods of Allocating Payments or Receivables; Allocations. All
allocations of payments to principal and interest and determinations of
periodic charges and the like on the Simple Interest 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. All allocations
of payments to principal and interest on the Actuarial Receivables shall
be based on the Actuarial Method set forth in the related Receivable.
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25
Each payment on a Receivable shall be applied first, to the
payment of accrued and unpaid interest on such Receivable, second, to
reduce the scheduled principal amount outstanding on the Receivable to
the extent of the remaining scheduled payment, third, to any outstanding
fees and Late Fees under the terms of the Receivable and fourth, to
reduce the principal amount outstanding on the Receivable. Amounts paid
by the Seller or the Servicer in respect of Repurchased Receivables shall
be allocated as if the Obligor thereof had prepaid such Receivable in
full on the date as of which such Receivable was repurchased by the
Seller pursuant to Section 3.2 or purchased by the Servicer pursuant to
Section 4.6 or 9.1.
SECTION 1.4 Calculations Relating to the May 1999
Distribution Date. If the Class A-1 Event has occurred, the calculations
hereunder for the May 1999 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 May
1999 Distribution Date. Amounts hereunder will be distributed on the
respective May 1999 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, which is
incorporated by reference herein, all proceeds thereof and all
amounts and monies received thereon on or after the Cutoff Date
(including proceeds of the repurchase of Receivables by the
Seller pursuant to Section 3.2 or the purchase of Receivables by
the Servicer pursuant to Section 4.6 or 9.1), together with the
interest of the Seller in the security interests in the Financed
Vehicles granted by the Obligors pursuant to the Receivables and
in any repossessed Financed Vehicles;
(ii) all right, title and interest of the Seller in any
Liquidation Proceeds and in any proceeds of any extended
warranties, theft and physical damage, 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.
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26
In connection with such sale, the Seller agrees to
record and file, at its own expense, financing statements (and
continuation statements with respect to such financing statements when
applicable) with respect to the Receivables for the sale of accounts and
chattel paper meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the sale and
assignment of the Receivables to the Issuer.
It is the intention of the Seller and the Issuer that
(a) the assignment and transfer herein contemplated constitute a sale of
the Receivables, conveying good title thereto free and clear of any liens
and encumbrances, from the Seller to the Issuer and (b) the Receivables
not be part of the Seller's estate in the event of an insolvency. In the
event that such conveyance is deemed to be a pledge to secure a loan, the
Seller hereby grants to the Issuer a first priority perfected security
interest in all of the Seller's right, title and interest in, to and
under the items of property listed in clauses (i) through (iii) above,
and in all proceeds (as defined in the Relevant UCC) of the foregoing, to
secure the loan deemed to be made in connection with such pledge and, in
such event, this Agreement shall constitute a security agreement under
applicable law.
SECTION 2.2 Closing. The conveyance of the Receivables
shall take place at the offices of Simpson Thacher & Bartlett, New York,
New York on the Closing Date, simultaneously with the closing of the
transactions contemplated by the underwriting agreements related to the
Notes and the Certificates and the other Basic Documents. Upon the
acceptance by the Seller of the Notes and the Certificates, the ownership
of each Receivable and the contents of the related Receivable File will
be vested in the Issuer, subject only to the lien of the Indenture.
ARTICLE III
THE RECEIVABLES
SECTION 3.1 Representations and Warranties of Seller;
Conditions Relating to Receivables.
(a) The Seller makes the following representations and
warranties as to the Receivables on which the Issuer shall rely in
acquiring the Receivables. Such representations and warranties shall
speak as of the Cutoff Date unless otherwise specified, but shall survive
the sale, transfer, and assignment of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(i) Schedule of Receivables. The 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.
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27
(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 (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 six months nor greater
than seventy-two months, and (A) in the case of each Receivable
secured by new Financed Vehicles, had an original maturity of at
least twelve months and not more than seventy-eight months, or
(B) in the case of each Receivable secured by used Financed
Vehicles, had an original maturity of at least twelve months and
not more than seventy-two months.
(iv) Contract Rate. Each Receivable is a
fully-amortizing fixed rate simple interest or actuarial
contract that provides for level scheduled monthly payments over
its remaining term, and has a Contract Rate of at least 6.00%
and not more than 20.00%;
(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;
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28
(viii) Remaining Principal Balance. Each Receivable
had a remaining Principal Balance of at least $2,000 and not greater
than $100,000;
(ix) No Force Placed Insurance. 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;
(x) Receivable Files. The Receivable Files
shall be kept at one or more of the locations specified in
Schedule B hereto;
(xi) 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 or other notes 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, in the case of Simple
Interest Receivables, 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 or the Actuarial Method, as
applicable;
(xii) Compliance with Laws. Each Receivable
and each sale of the related Financed Vehicle complied at the
time it was originated or made, and complied on and after the
Cutoff Date, in all material respects with all requirements of
applicable federal, state, and local laws, and regulations
thereunder, including usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting
Act, the Federal Trade Commission Act, the 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;
(xiii) Binding Obligation. Each Receivable
constitutes the legal, valid, and binding payment obligation in
writing of the Obligor, enforceable by the holder thereof in all
material respects in accordance with its terms, subject, as to
enforcement,
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29
to applicable bankruptcy, insolvency, reorganization,
liquidation and other similar laws and equitable principles
relating to or affecting the enforcement of creditors' rights;
(xiv) No Government Obligor. Each Receivable
is not due from the United States of America or any State or
from any agency, department, instrumentality or political
subdivision of the United States of America or any State or
local municipality, and each Receivable is not due from a
business except to the extent that such Receivable has a
personal guaranty;
(xv) Security Interest in Financed Vehicle.
Immediately prior to the sale and assignment thereof to the
Issuer as herein contemplated, each Receivable was secured by a
validly perfected first priority security interest in the
related Financed Vehicle in favor of or for the benefit of the
Seller as secured party (subject to administrative delays and
clerical errors on the part of the applicable governmental
agency and to any statutory or other lien arising by operation
of law after the Closing Date which is prior to such security
interest), the Seller's security interest (or beneficial
interest therein) is assignable, and has been so assigned by the
Seller to the Issuer (subject to administrative delays and
clerical errors on the part of the applicable governmental
agency and to any statutory or other lien arising by operation
of law after the Closing Date which is prior to such security
interest);
(xvi) Receivables in Force. No Receivable has
been satisfied, subordinated, or rescinded, nor has any Financed
Vehicle been released from the Lien granted by the related
Receivable, in whole or in part;
(xvii) No Waiver. No provision of a Receivable
has been waived in such a manner that such Receivable fails
either to meet all of the representations and warranties made by
the Seller herein with respect thereto or to meet all of the
conditions with respect thereto pursuant to this Section 3.1(b);
(xviii) No Amendments. No Receivable has been
amended except pursuant to either instruments included in the
Receivable Files or instruments to be included in the Receivable
Files pursuant to Section 4.2 (or otherwise maintained by the
Seller in the ordinary course of its business), and no such
amendment has caused such Receivable either to fail to meet all
of the representations and warranties made by the Seller herein
with respect thereto or to fail to meet all of the conditions
with respect thereto pursuant to this Section 3.1(b);
(xix) No Defenses. The Seller had no knowledge
either of any facts which would give rise to any right of
rescission, setoff, counterclaim, or defense, or of the same
being asserted or threatened, with respect to any Receivable;
(xx) No Liens. The Seller had no knowledge of
any Liens or claims that have been filed, including liens for
work, labor, materials or unpaid taxes relating to a Financed
Vehicle, that would be liens prior to, or equal or coordinate
with, the lien granted by the Receivable;
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30
(xxi) No Default. Except for payment defaults
continuing for a period of not more than 30 days as of the close
of business on the Cutoff Date, the Seller has no knowledge that
a default, breach, violation, or event permitting acceleration
under the terms of any Receivable exists; the Seller has no
knowledge that a continuing condition that with notice or lapse
of time would constitute a default, breach, violation, or event
permitting acceleration under the terms of any Receivable
exists; and the Seller has not waived any of the foregoing;
(xxii) Insurance. Each Receivable requires that
the Obligor thereunder maintain comprehensive, liability, theft
and physical damage insurance covering the related Financed
Vehicle;
(xxiii) Lawful Assignment. No Receivable has
been originated in, or is subject to the laws of, any
jurisdiction under which the sale, transfer, and assignment of
such Receivable under this Agreement or pursuant to transfers of
the Certificates or the Notes is unlawful, void or voidable;
(xxiv) All Filings Made. No filings (other than
filings under the Relevant UCC which have been made) or other
actions are necessary in any jurisdiction to give the Issuer a
first perfected security interest in the Receivables;
(xxv) One Original. There is no more than one
original executed copy of each Receivable which, immediately
prior to the delivery thereof to the Servicer (as custodian for
the Issuer), was in the possession of the Seller;
(xxvi) Excluded Loans. Each Receivable (A) is
not 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
(xxvii) 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, as the case may be, of
either any breach of the Seller's representations and warranties set
forth in Section 3.1(a) or the failure of any Receivable to satisfy any
of the conditions set forth in Section 3.1(b) which materially and
adversely affects the Holders' interest in any Receivable. Unless the
breach or failed condition shall have been cured by the last day of the
Collection Period following the Collection Period in which such discovery
occurred (or, at the Seller's option, the last day of
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31
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)(xxvii), 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.
SECTION 3.3 Custody of Receivable Files. To assure
uniform quality in servicing the Receivables and to reduce administrative
costs, the Issuer, upon the execution and delivery of this Agreement,
agrees to have the Servicer act as custodian of the following documents
or instruments (the "Receivable Files") which are hereby constructively
delivered to the Issuer with respect to each Receivable:
(i) The original executed Receivable; and
(ii) Any and all other documents or records that the
Seller or the Servicer, as the case may be, shall keep on file,
in accordance with its customary procedures, relating to a
Receivable, an Obligor or a Financed Vehicle.
The Servicer hereby agrees to act as custodian and as
agent for the Issuer hereunder. The Servicer acknowledges that it holds
the documents and instruments relating to the Receivables for the benefit
of the Issuer. The Issuer shall have no responsibility to monitor the
Servicer's performance as custodian and shall have no liability in
connection with the Servicer's performance of such duties hereunder.
SECTION 3.4 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as
custodian, shall hold the Receivable Files on behalf of the Issuer, and
maintain such accurate and complete accounts, records (either original
execution documents or copies of such originally executed documents shall
be sufficient) and computer systems pertaining to the Receivables as
shall enable the Issuer to comply with its obligations pursuant to this
Agreement. In performing its duties as
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custodian, the Servicer shall act with reasonable care, using that degree
of skill and attention that the Servicer exercises with respect to the
receivable files of comparable new or used automobile receivables that
the Servicer services for itself. The Servicer shall conduct, or cause to
be conducted, periodic audits of the files of all receivables owned or
serviced by the Servicer which shall include the Receivable Files held by
it under this Agreement and the related accounts, records and computer
systems, in such a manner as shall enable the Owner Trustee or the
Indenture Trustee to identify all Receivable Files and such related
accounts, records and computer systems and to verify, if the Owner
Trustee or the Indenture Trustee so elects, the accuracy of the
Servicer's recordkeeping. The Servicer shall promptly report to the Owner
Trustee or the Indenture Trustee any failure on its part to hold the
Receivable Files and maintain its accounts, records, and computer systems
as herein provided, and promptly take appropriate action to remedy any
such failure.
(b) Maintenance of and Access to Records. The Servicer
shall maintain each Receivable File at one of the locations specified in
Schedule B to this Agreement, or at such other location as shall be
specified to the Owner Trustee and the Indenture Trustee by 30 days'
prior written notice. The Servicer shall make available to the Owner
Trustee, the Indenture Trustee or their respective duly authorized
representatives, attorneys or auditors, the Receivable Files and the
related accounts, records and computer systems maintained by the Servicer
at such times during normal operating hours as the Owner Trustee or
Indenture Trustee shall reasonably instruct which does not unreasonably
interfere with the Servicer's normal operations or customer or employee
relations.
(c) Release of Documents. Upon instruction from the
Indenture Trustee (or, if the Notes have been paid in full, from the
Owner Trustee), the Servicer shall release any document in the Receivable
Files to the Indenture Trustee or Owner Trustee, or their respective
agents or designee, as the case may be, at such place or places as such
Person may reasonably designate as soon as reasonably practicable to the
extent it does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. The Servicer shall not be
responsible for any loss occasioned by the failure of the Owner Trustee
or Indenture Trustee, or their respective agents or designees, to return
any document or any delay in doing so.
(d) Title to Receivables. The Servicer agrees that, in
respect of any Receivable held by it as custodian hereunder, (i) the
Servicer will not at any time have or in any way attempt to assert any
interest in such Receivable or the related Receivable File, other than
solely for the purpose of collecting or enforcing the Receivable for the
benefit of the Issuer and (ii) the related Receivable File shall at all
times be property of the Issuer.
SECTION 3.5 Instructions; Authority to Act. The
Servicer shall be deemed to have received proper instructions with
respect to the Receivable Files upon its receipt of written instructions
signed by an Authorized Officer of the Indenture Trustee (or, if the
Notes have been paid in full, of the Owner Trustee). A certified copy of
a by-law or of a resolution of the Board of Directors of the Owner
Trustee or the Indenture Trustee, as the case may be, shall constitute
conclusive evidence of the authority of any such Authorized Officer to
act and
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shall be considered in full force and effect until receipt by the
Servicer of written notice to the contrary given by the Owner Trustee or
the Indenture Trustee, as the case may be.
SECTION 3.6 Custodian's Indemnification. The Servicer,
as custodian, shall indemnify the Issuer, the Owner Trustee and the
Indenture Trustee for any and all liabilities, obligations, losses,
damages, payments, costs, or expenses of any kind whatsoever that may be
imposed on, incurred or asserted against the Issuer, the Owner Trustee or
the Indenture Trustee as the result of any act or omission in any way
relating to the maintenance and custody by the Servicer, as custodian, of
the Receivable Files; provided, however, that the Servicer shall not be
liable for any portion of any such amount resulting from the 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 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
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Indenture Trustee with respect to distributions. The Servicer shall
follow its customary standards, policies, and procedures in performing
its duties as Servicer hereunder; provided that the Servicer shall be
permitted to take or to refrain from taking any action not specified in
this Agreement with respect to servicing the Receivables if such action
or inaction would not contravene any material term of this Agreement or
materially and adversely affect the interests of Holders. 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, 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.
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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 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
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36
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.
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
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Trustee's and the Indenture Trustee's respective counsel, the Paying
Agent, the Authenticating Agent, the Note Registrar and the Certificate
Registrar except for United States federal, state and local income and
franchise taxes, if any, imposed on the Issuer or any Holder or any
expenses in connection with realizing upon Receivables under Section 4.3.
SECTION 4.8 Servicer's Certificate. On or before each
Determination Date, the Servicer shall deliver to the Indenture Trustee,
the Owner Trustee, the Paying Agent and the Rating Agencies a Servicer's
Certificate, substantially in the form of Exhibit A 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 April 1999 Collection Period to such parties no later than May 6,
1999. 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,
1999, a certificate signed by the chairman of the board, the president,
the treasurer, the controller, any executive or senior vice president or
any vice president of the Servicer, stating that (a) a review of the
activities of the Servicer during the year ended the preceding December
31 (or the period since the Cutoff Date in the case of the first such
certificate) and of its performance under this Agreement has been made
under such officer's supervision and (b) to the best of such officer's
knowledge, based on such review, the Servicer has fulfilled all its
obligations in all material respects under this Agreement throughout such
year (or the period since the Cutoff Date in the case of the first such
certificate), or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and
the nature and status thereof.
(b) The Servicer shall deliver to the Indenture
Trustee, the Owner Trustee and each Rating Agency promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, an Officer's Certificate specifying any event which with the
giving of notice or lapse of time, or both, would become an Event of
Servicing Termination under Section 8.1. The Seller shall deliver to the
Indenture Trustee and the Owner Trustee, promptly after having obtained
knowledge thereof, but in no event later than five Business Days
thereafter, an Officer's Certificate specifying any event which with the
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38
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, 1999, 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:
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
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39
have access to such documentation. Access by the Holders shall be
afforded without charge, but only upon reasonable request and during
normal business hours which does not unreasonably interfere with the
Servicer's normal operations or customer or employee relations. Nothing
in this Section 4.11 shall affect the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access
to information as a result of such obligation shall not constitute a
breach of this Section 4.11.
SECTION 4.12 Reports to Holders and the Rating
Agencies. (a) The Indenture Trustee or the Owner Trustee, as applicable,
shall provide to any Holder who so requests in writing (addressed to the
Corporate Trust Office of such trustee) a copy of any Servicer's
Certificate described in Section 4.8, of the annual statement described
in Section 4.9(a), or of the annual report described in Section 4.10. The
Indenture Trustee or the Owner Trustee, as applicable, may require the
Holder to pay a reasonable sum to cover the cost of the Indenture
Trustee's or the Owner Trustee's complying with such request, as
applicable.
(b) The Indenture Trustee or the Owner Trustee, as
applicable, shall forward to the Rating Agencies the statement to Holders
described in Section 5.8 and any other reports it may receive pursuant to
this Agreement to (i) Standard & Poor's, Asset-Backed Surveillance Group,
25 Broadway, New York, New York 10004, (ii) Moody's, ABS Monitoring
Dept., 99 Church Street, 4th Floor, New York, New York 10007 and (iii) to
Fitch, 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
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"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 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 May
7, 1999, in the case of investments made on or after the Deposit Date in
April 1999 and prior to the Deposit Date in May 1999, in an amount at
least equal to the May 1999 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
Collections collected during the Collection Period. Chase USA has
requested that, so long as it is acting as the Servicer, the Servicer be
permitted to make remittances of Collections on a less frequent basis
than that specified in the immediately preceding sentence. It is
understood that such less frequent remittances may be made only on the
specific terms and conditions set forth below in this Section 5.2 and
only for so long as such terms and conditions are fulfilled. Accordingly,
notwithstanding the provisions of the first sentence of this Section 5.2,
the Servicer shall remit such collections to the Collection Account in
Automated Clearinghouse Corporation next-day funds or immediately
available funds no later than 11:00 a.m., New York City time, on the
Deposit
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Date, but only for so long as (i) the short-term certificate of deposit
ratings of the Servicer are at least P-1 by Moody's, "F1" by Fitch (if
rated by Fitch) and "A-1" by Standard & Poor's, or the Rating Agency
Condition is satisfied as a result of Collections being remitted on a
monthly, rather than daily, basis and (ii) the Servicer shall be Chase
USA or Chase; provided, however, that if the Class A-1 Event has
occurred, with respect to Collections received during the April 1999
Collection Period, the Servicer shall remit to the Collection Account on
May 7, 1999 an amount of such Collections equal to the May 1999 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 May 7, 1999), 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 May 7, 1999), then the Indenture Trustee
and the Owner Trustee shall assume that no deposits were made to the
Collection Account pursuant to this Section 5.2. For purposes of this
Section 5.2 the phrase "payments made on behalf of the Obligors" shall
mean payments made by Persons other than the Seller or the Servicer.
(b) Notwithstanding anything in this Agreement to the
contrary, if the Servicer inadvertently deposits amounts that it
mistakenly believes are Collections resulting in the payment in full of a
Receivable, 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
April 1999 Collection Period is less than the May 1999 Class A-1 Note
Distribution, such remittances (up to the amount of such shortfall) shall
be deposited into the Collection Account no later than May 7, 1999.
SECTION 5.5 Distributions. (a) No later than 12 noon,
New York City time, on each Determination Date, the Servicer shall
calculate all amounts required to determine the amounts to be withdrawn
from the Reserve Account (if any) and deposited into the Collection
Account and the amounts to be withdrawn from the Collection Account and
paid to the Servicer and the Administrator, deposited into the Note
Distribution Account and the Certificate Distribution Account and 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
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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 May 1999 Distribution Date is less than the May 1999 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 May 7, 1999 a portion of the Reserve Account
Transfer Amount for the May 1999 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;
(iv) except as set forth in Section 5.5(d), to the
Owner Trustee for deposit in the Certificate Distribution
Account, the Certificateholders' Interest Distributable
Amount;
(v) except as set forth in Section 5.5(d), to the Note
Distribution Account, the Noteholders' Principal Distributable
Amount; and
(vi) except as set forth in Section 5.5(d), to the
Owner Trustee for deposit in the Certificate Distribution
Account, the Certificateholders' Principal Distributable Amount;
and
(vii) except as set forth in Section 5.5(d), to the
Reserve Account, any remaining portion of the Total Distribution
Amount.
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43
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), (v), (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 May 1999
Class A-1 Note Distribution will be deposited in the Note Distribution
Account on the May 1999 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 May 1999
Distribution Date with respect to the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Certificates pursuant to clauses (i)
through (vi), inclusive, of Section 5.5(c); provided, however if the sum
of the Total Distribution Amount and the Reserve Account Transfer Amount
for the May 1999 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 been
distributable therefrom if the May 1999 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 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 May 7, 1999 to
the extent of the May 1999 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
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44
(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
May 7, 1999 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 (and that is not either a United States
Security Entitlement or a Security Entitlement) 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 or a Security Entitlement, the
Indenture Trustee shall maintain Control over such Reserve
Account Property pending maturity or disposition; and
(iii) any Reserve Account Property that is an
Uncertificated Security (and that is not a United States
Security Entitlement) shall be delivered to the Indenture
Trustee in accordance with paragraph (b) 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 Simpson Thacher & Bartlett, special counsel to the Indenture Trustee,
dated April 15, 1998, 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
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45
such distributed amounts. For purposes of this Section 5.6(d), the May
1999 Distribution Date shall be May 15, 1999 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 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, setting forth at least the following information as to the
Notes (separately stating such information as to the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes) and the
Certificates, to the extent applicable:
(i) the amount of such distribution allocable to principal on
each class of Notes and the Certificates;
(ii) the amount of such distribution allocable to
interest on each class of Notes and the Certificates;
(iii) the amount of the Servicing Fee paid to the
Servicer pursuant to Section 5.5(c);
(iv) the amount of the Administration Fee paid to the
Administrator on such 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 Certificate Balance and the Certificate Pool Factor, in each
case after giving effect to payments allocated to principal
reported under (i) above;
(vi) the Pool Balance as of the last day of the preceding
Collection Period;
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46
(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 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.
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47
(ii) Power and Authority. The Seller has the power and
authority to execute and deliver this Agreement and the other
Basic Documents to which it is a party and to carry out their
respective terms, the Seller has full power and authority to
sell and assign the property to be sold and assigned to the
Issuer as the Owner Trust Estate and has duly authorized such
sale and assignment to the Issuer by all necessary corporate
action; and the execution, delivery, and performance of this
Agreement and the other Basic Documents to which it is a party
has been duly authorized by the Seller by all necessary action.
(iii) Valid Sale; Binding Obligations. This Agreement
effects a valid sale, transfer, and assignment of the
Receivables, enforceable against creditors of and purchasers
from the Seller; this Agreement and each of the other Basic
Documents to which it is a party constitutes a legal, valid, and
binding obligation of the Seller enforceable in accordance with
its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents and
the fulfillment of the terms hereof and thereof do not conflict
with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time) a
default under, the articles of association or bylaws of the
Seller, or conflict with or breach any of the material terms or
provisions of, or constitute (with or without notice or lapse of
time) a default under, any indenture, agreement, or other
instrument to which the Seller is a party or by which it is
bound; nor result in the creation or imposition of any lien upon
any of its properties pursuant to the terms of any such
indenture, agreement, or other instrument; nor violate any law
or, to the best of the Seller's knowledge, any order, rule, or
regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over the
Seller or its properties.
(v) No Proceedings. There are no proceedings or
investigations pending, or, to the Seller's best knowledge,
threatened, before any court, regulatory body, administrative
agency, or other governmental instrumentality having
jurisdiction over the Seller or its properties: (a) asserting
the invalidity of this Agreement, any other Basic Document, the
Notes or the Certificates, (b) seeking to prevent the issuance
of the Notes or the Certificates or the consummation of any of
the transactions contemplated by this Agreement or any other
Basic Document, (c) seeking any determination or ruling that
might materially and adversely affect the performance by the
Seller of its obligations under, or the validity or
enforceability of, this Agreement, any other Basic Document, or
the Notes or the Certificates, or (d) relating to the Seller and
which might adversely affect the federal or state income tax
attributes of the Notes or the Certificates.
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48
SECTION 6.2 Liability of Seller; Indemnities. The
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller in such capacity under
this Agreement and shall have no other obligations or liabilities
hereunder.
The Seller shall indemnify, defend and hold harmless
the Issuer, the Owner Trustee and the Indenture Trustee from and against
any taxes that may at any time be asserted against any such Person with
respect to, and as of the date of, the sale of the Receivables to the
Issuer or the issuance and original sale of the Notes and the
Certificates, including any sales, gross receipts, general corporation,
tangible or intangible personal property, privilege, or license taxes
(but not including any taxes asserted with respect to ownership of the
Receivables or federal or other income taxes, including franchise taxes
measured by net income), arising out of the transactions contemplated by
this Agreement and the other Basic Documents, and costs and expenses in
defending against the same.
The Seller shall indemnify, defend, and hold harmless
the Issuer, the Owner Trustee and the Indenture Trustee from and against
any loss, liability or expense incurred by reason of (i) the Seller's
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.
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49
SECTION 6.5 Seller May Own Notes and Certificates. The
Seller or any of its Affiliates may in its individual or any other
capacity become the owner or pledgee of Notes or Certificates with the
same rights as it would have if it were not the Seller or an Affiliate
thereof, except as otherwise provided in the definition of "Outstanding"
specified in Section 1.1. Notes or Certificates so owned by or pledged to
the Seller or any Affiliate thereof shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference,
priority, or distinction as among all of the Notes or Certificates, as
applicable.
ARTICLE VII
THE SERVICER
SECTION 7.1 Representations of Servicer. The Servicer
makes the following representations on which the Issuer shall rely in
acquiring the Receivables. The representations shall speak as of the
execution and delivery of this Agreement (or as of a date a Person (other
than the Indenture Trustee) becomes Servicer pursuant to Section 7.3 or
Section 8.2), and shall survive the sale of the Receivables to the Issuer
and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(i) Organization and Good Standing. The Servicer has
been duly organized and is validly existing as a national
banking association or corporation and is in good standing under
the laws of the United States of America or the jurisdiction of
its incorporation, with power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and
had at all relevant times, and has, power, authority, and legal
right to acquire, own, sell, and service the Receivables and to
hold the Receivable Files as custodian on behalf of the Issuer.
(ii) Power and Authority. The Servicer has the power
and authority to execute and deliver this Agreement and the
Basic Documents to which it is a party and to carry out the
terms thereof; and the execution, delivery, and performance of
this Agreement and the other Basic Documents has been duly
authorized by the Servicer by all necessary action.
(iii) Binding Obligations. This Agreement and the other
Basic Documents to which it is a party constitute legal, valid,
and binding obligations of the Servicer enforceable in
accordance with their respective terms subject, as to
enforcement, to applicable bankruptcy, insolvency,
reorganization, liquidation or other similar laws and equitable
principles relating to or affecting the enforcement of
creditors' rights, whether considered in a proceeding at law or
in equity.
(iv) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Basic Documents and
the fulfillment of the terms hereof and thereof do not conflict
with, result in any breach of any of the terms and
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50
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, or 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, or the Notes or the
Certificates, or (d) relating to the Servicer and which might
adversely affect the federal or state income tax attributes of
the Notes or the Certificates.
(vi) Fidelity Bond. The Servicer maintains a fidelity
bond in such form and amount as is customary for banks acting as
custodian of funds and documents in respect of retail automotive
installment sales contracts.
SECTION 7.2 Liability of Servicer; Indemnities. The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer under this Agreement
and shall have no other obligations or liabilities hereunder.
(i) The Servicer shall defend, indemnify, and hold
harmless the Issuer, the Owner Trustee, the Indenture Trustee
and the Holders from and against any and all costs, expenses,
losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership, or operation by the Servicer
or any Affiliate thereof of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend, and hold
harmless the Issuer, the Owner Trustee and the Indenture Trustee
from and against any taxes that may at any time be asserted
against the Issuer with respect to the transactions contemplated
in this Agreement, including, without limitation, any sales,
gross receipts, general corporation, tangible or intangible
personal property, privilege, or license taxes (but not
including any taxes asserted with respect to, and as of the date
of, the sale of the Receivables to the Issuer or the issuance
and original sale of the Notes or the Certificates, or asserted
with respect to ownership of the Receivables or federal, state
or other income taxes,
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51
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, 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.
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52
(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
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
assumed the responsibilities and obligations of the Servicer hereunder in
accordance with Section 8.2.
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53
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 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
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54
Outstanding Amount of the Notes (or, if the Notes have been paid
in full, by Holders of the Certificates evidencing not less than
25% of the Certificate Balance);
(iii) The entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver, or
liquidator for the Servicer in any insolvency, readjustment of
debt, marshalling of assets and liabilities, or similar
proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Servicer to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities, or
similar proceedings of or relating to the Servicer or of or
relating to substantially all of its property; or the Servicer
shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations.
Upon the occurrence of any Event of Servicing Termination as described
above, and in each and every case and for so long as such Event of
Servicing Termination shall not have been remedied, either the Indenture
Trustee or the Holders of Notes evidencing not less than a majority of
the Outstanding Amount of the Notes (or, if the Notes have been paid in
full and the Indenture has been discharged in accordance with its terms,
by the Owner Trustee or the Holders of Certificates evidencing not less
than a majority of the Certificate Balance), by notice given in writing
to the Servicer (and to the Indenture Trustee or the Owner Trustee, as
applicable, if given by Holders) may terminate all of the rights and
obligations of the Servicer under this Agreement. On or after the receipt
by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the Certificates,
the Notes or the Receivables or otherwise, shall pass to and be vested in
the Indenture Trustee pursuant to this Section 8.1; and, without
limitation, the Indenture Trustee shall be hereby authorized and
empowered to execute and deliver, on behalf of the predecessor Servicer,
as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement of the Receivable Files,
or otherwise. The predecessor Servicer shall cooperate with the successor
Servicer and the Indenture Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this
Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held
by the predecessor Servicer for deposit, shall have been deposited by the
predecessor Servicer in the Collection Account, or shall thereafter be
received with respect to a Receivable. All reasonable costs and expenses
(including attorneys' fees and disbursements) incurred in connection with
transferring the Receivable Files to the successor Servicer and amending
this Agreement to reflect such succession as Servicer pursuant to this
Section 8.1 shall be paid by the predecessor Servicer upon presentation
of reasonable documentation of such costs and expenses. The Indenture
Trustee and the Owner Trustee shall give written notice of any
termination of the Servicer to their related Holders, and the
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55
Indenture Trustee shall give such notice to the Rating Agencies. Neither
the Indenture Trustee nor any successor Servicer shall be deemed to be in
default hereunder by reason of its failure to make, or any delay in
making, any distribution hereunder or any portion thereof which was
caused by (i) the failure of the predecessor Servicer to deliver, or any
delay in delivering cash, documents or records to it, or (ii)
restrictions imposed by any regulatory authority having jurisdiction over
the predecessor Servicer.
SECTION 8.2 Indenture Trustee to Act; Appointment of
Successor Servicer. Upon the Servicer's receipt of notice of termination
pursuant to Section 8.1 or resignation pursuant to Section 7.5, the
Indenture Trustee shall be the successor in all respects to the Servicer
in its capacity as Servicer under this Agreement, and shall be subject to
all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the Servicer by the terms and provisions of
this Agreement. As compensation therefor, the Indenture Trustee shall be
entitled to such compensation (whether payable out of the Collection
Account or otherwise) as the Servicer would have been entitled to under
this Agreement if no such notice of termination or resignation had been
given. Notwithstanding the above, the Indenture Trustee may, if it shall
be unwilling so to act, or shall, if it shall be legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint,
any established financial institution (x) having a net worth of not less
than $100,000,000 as of the last day of the most recent fiscal quarter
for such institution and (y) whose regular business shall include the
servicing of automobile receivables, as successor Servicer under this
Agreement; provided, that the appointment of any such successor Servicer
is required to satisfy the Rating Agency Condition. In connection with
such appointment, the Indenture Trustee may make such arrangements for
the compensation of such successor Servicer out of payments on
Receivables as it and such successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of that permitted
the Servicer under this Agreement. The Indenture Trustee and such
successor Servicer shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
Unless the Indenture Trustee shall be prohibited by law from so acting,
the Indenture Trustee shall not be relieved of its duties as successor
Servicer under this Section 8.2 until the newly appointed successor
Servicer shall have assumed the responsibilities and obligations of the
Servicer under this Agreement.
SECTION 8.3 Notification to Noteholders and
Certificateholders. Upon any Event of Servicing Termination, or
appointment of a successor Servicer pursuant to this Article VIII, the
Owner Trustee shall give prompt written notice thereof to
Certificateholders and the Indenture Trustee shall give prompt written
notice thereof to the Noteholders, at their respective addresses of
record, and to the Rating Agencies.
SECTION 8.4 Waiver of Past Defaults. The Holders of
Notes evidencing at least a majority of the Outstanding Amount of the
Notes (or, the Holders of Certificates evidencing not less than a
majority of the Certificate Balance, in the case of any Event of
Servicing Termination that does not adversely affect the Indenture
Trustee or the Noteholders) may, on behalf of all such Holders, waive any
default by the Servicer in the performance of its obligations hereunder
and its consequences, except a default in the failure to make any
required deposits to or payments from any of the Trust Accounts or the
Certificate
<PAGE>
56
Distribution Account in accordance with this Agreement. Upon any such
waiver of a past default, such default shall cease to exist, and any
Event of Servicing Termination arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived. The Servicer shall give
prompt written notice of any waiver to the Rating Agencies; provided,
however, that the Indenture Trustee or the Owner Trustee shall only be
required to give such notice if a Responsible Officer thereof has actual
knowledge of the related event.
ARTICLE IX
TERMINATION
SECTION 9.1 Optional Purchase of All Receivables; Trust
Termination. (a) As of the last day of any Collection Period as of which
the Pool Balance shall be equal to or less than the Optional Purchase
Percentage of the Original Pool Balance, the Servicer shall have the
option to purchase the Owner Trust Estate, other than the Trust Accounts
and the Certificate Distribution Account. To exercise such option, the
Servicer shall notify the Indenture Trustee, the Owner Trustee, the Note
Registrar and the Certificate Registrar in writing, no later than the
25th day of the Collection Period following which purchase is to be
effected, shall pay the aggregate Repurchase Amount for the Receivables
(including Defaulted Receivables) and shall succeed to all interests in,
to and under such property. The payment shall be made in the manner
specified in Section 5.4, and shall be distributed pursuant to Section
5.5. The Indenture Trustee shall not permit the purchase of the Owner
Trust Estate pursuant to this Section 9.1 unless (i) the Servicer's
long-term unsecured debt is rated at the time of such purchase at least
"BBB-" by Standard & Poor's and Fitch (if rated by Fitch) and Baa3 by
Moody's or (ii) the Servicer provides to the Indenture Trustee an Opinion
of Counsel in form and substance satisfactory to the Rating Agencies to
the effect that such purchase will not constitute a fraudulent transfer
under applicable state and federal law.
(b) Upon any sale of the assets of the Issuer pursuant
to Article V of the Indenture, the Servicer shall instruct the Indenture
Trustee in writing to deposit the proceeds from such sale after all
payments and reserves therefrom (including the expenses of such sale)
have been made (the "Sale Proceeds") in the Collection Account. On the
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 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;
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(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.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendment. This Agreement may be amended
by the Seller, the Servicer and the Owner Trustee, on behalf of the
Issuer, with the prior consent of the Indenture Trustee and prior notice
to the Rating Agencies but without prior notice to or the consent of any
of the Holders, (i) to cure any ambiguity, to correct or supplement any
provisions in this Agreement which may be inconsistent with any other
provisions herein, to evidence a succession to the Servicer or the Seller
pursuant to this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; provided, however,
that such action shall not, as evidenced by an Officer's Certificate
and/or an Opinion of Counsel reasonably acceptable and delivered to the
Owner Trustee and the Indenture Trustee, adversely and materially affect
the interests of the Issuer or any of the Holders; provided, further,
that the
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Servicer shall deliver written notice of such changes to each Rating
Agency prior to the execution of any such amendment, or (ii) to effect a
transfer or assignment in compliance with Section 10.6(a) of this
Agreement. Notwithstanding the foregoing, no amendment modifying the
provisions of Section 5.5 shall become effective without satisfaction of
the Rating Agency Condition.
This Agreement may also be amended from time to time by
the Seller, the Servicer and the Owner Trustee, on behalf of the Issuer,
with the consent of the Indenture Trustee, the Holders of Certificates
evidencing at least a majority of the Certificate Balance of the
Certificates and the consent of the Holders of Notes evidencing at least
a majority of the Outstanding Amount of the Notes, for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement, or of modifying in any manner the
rights of the Noteholders or the Certificateholders (including effecting
a transfer or assignment in compliance with Section 10.6(a) of this
Agreement); provided, however, that no such amendment, except with the
consent of the Holders of all Certificates or Notes, as applicable, then
outstanding, shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments of
Receivables, or distributions that shall be required to be made on any
Certificate or Note, or (b) reduce the aforesaid percentage of the
Certificate Balance of the Certificates or the Outstanding Amount of the
Notes required to consent to any such amendment.
Promptly after the execution of any amendment or
consent referred to in this Section 10.1, the Owner Trustee shall furnish
a copy of such amendment or consent to each Certificateholder and the
Indenture Trustee, who shall promptly furnish a copy to each Noteholder
and to the Rating Agencies.
It shall not be necessary for the consent of the
Indenture Trustee, the Certificateholders or the Noteholders pursuant to
this Section 10.1 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and
of evidencing the authorization of the execution thereof by
Certificateholders or Noteholders shall be subject to such reasonable
requirements as the Indenture Trustee or the Owner Trustee may prescribe.
Prior to the execution of any amendment to this
Agreement, the Indenture Trustee and the Owner Trustee shall be entitled
to receive and rely upon an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Agreement. The
Indenture Trustee and the Owner Trustee shall not be obligated to enter
into any such amendment which affects the Indenture Trustee's and the
Owner Trustee's own rights, duties or immunities under this Agreement.
Satisfaction of the Rating Agency Condition is required
prior to the execution of any amendment to this Agreement, other than an
amendment permitted pursuant to clause (i) of the first paragraph of this
Section 10.1.
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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 Section 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.
(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.
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(g) The Servicer shall permit the Indenture Trustee and
the Owner Trustee and their respective agents upon reasonable notice at
any time during normal business hours which does not unreasonably
interfere with the Servicer's normal operations or customer or employee
relations to inspect, audit, and make copies of and abstracts from the
Servicer's records regarding the Receivables.
(h) Upon request, the Servicer shall furnish to the
Owner Trustee or the Indenture Trustee, within five Business Days, a list
of all Receivables by 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, 1999, an Opinion of Counsel, dated as of such
date, either (a) stating that, in the opinion of such counsel,
all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the interest of the Issuer and the Indenture Trustee in
the Receivables, and reciting the details of such filings or
referring to prior opinions of Counsel in which such details are
given, or (b) stating that, in the opinion of such counsel, no
such action shall be necessary to preserve and protect such
interest. Notwithstanding the provisions of Section 10.4, such
Opinion of Counsel may be sent by regular non-certified mail,
and such mailed opinion shall be deemed delivered when so
mailed.
(j) The Seller shall, to the extent required by
applicable law, cause the Certificates and the Notes to be registered
with the Securities and Exchange Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods specified in
such sections.
(k) For the purpose of facilitating the execution of
this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and all of which counterparts shall
constitute but one and the same instrument.
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61
SECTION 10.3 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.4 Notices. All demands, notices, and
communications under this Agreement shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt (a) in the case of
the Seller, c/o Chase Automotive Finance Corporation, 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 Norwest Bank
Minnesota, National Association, Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479-0070, Attention: Corporate Trust Office and
(d) in the case of the Issuer and the Owner Trustee, at c/o Wilmington
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890, Corporate Trust Administration. Any notice required or
permitted to be mailed to a Holder shall be given by first class mail,
postage prepaid, at the address of record of such Holder. Any notice to a
Holder so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Holder
shall receive such notice.
SECTION 10.5 Severability of Provisions. If any one or
more of the covenants, agreements, provisions, or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Agreement
and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or of the Notes or
the rights of the Holders thereof.
SECTION 10.6 Assignment. Notwithstanding anything to
the contrary contained herein, except as provided in Sections 6.3, 7.3,
7.5 and 8.2, neither the Seller nor the Servicer may assign all, or a
portion of, its rights, obligations and duties under this Agreement
unless such transfer or assignment satisfies the Rating Agency Condition.
In the event of a transfer or assignment pursuant to this Section 10.6,
the Rating Agencies shall be provided with notice of such transfer or
assignment.
SECTION 10.7 Certificates and Notes Nonassessable and
Fully Paid. The interests represented by the Certificates and Notes shall
be nonassessable for any losses or expenses of the Issuer or for any
reason whatsoever, and, upon authentication thereof by the Indenture
Trustee and the Owner Trustee pursuant to the Trust Agreement and the
Indenture, respectively, each Certificate and Note shall be deemed fully
paid.
SECTION 10.8 Third-Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties hereto, and
their respective successors and permitted assigns. The Administrator, the
Owner Trustee, individually and on behalf of the Certificateholders, and
the Indenture Trustee, individually and on behalf of the Noteholders
<PAGE>
62
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 Owner Trustee of the Issuer have any liability
for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of its duties or
obligations hereunder or in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII
and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been acknowledged and accepted by 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.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed by their respective officers as of the day
and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Seller and Servicer
By: /s/ Keith Schuck
---------------------
Title: Vice President
CHASE MANHATTAN AUTO OWNER TRUST,
1998-B, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solel as Owner Trustee on
behalf of the Issuer
By: /s/ Emmett Harmon
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Title: Vice President
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
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Title: Assistant Vice President
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SCHEDULE A
LIST OF RECEIVABLES
Delivered to the Owner Trustee and the Indenture Trustee
on the Closing Date.
<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
<PAGE>
EXHIBIT A
[FORM OF SERVICER'S CERTIFICATE]
A-1
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATEHOLDER AND NOTEHOLDER REPORT]
B-1
<PAGE>
CONFORMED COPY
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CHASE MANHATTAN AUTO OWNER TRUST 1998-B
Class A-1 5.578% Asset Backed Notes
Class A-2 5.729% Asset Backed Notes
Class A-3 5.750% Asset Backed Notes
Class A-4 5.800% Asset Backed Notes
----------------------
INDENTURE
Dated as of April 1, 1998
----------------------
Norwest Bank Minnesota, National Association
as Indenture Trustee
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<PAGE>
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.1 Definitions...................................................................... 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act................................ 2
SECTION 1.3 Usage of Terms................................................................... 2
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............................................ 4
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes....................................... 6
SECTION 2.6 Persons Deemed Owner............................................................. 7
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest............................ 7
SECTION 2.8 Cancellation..................................................................... 8
SECTION 2.9 Release of Collateral............................................................ 8
SECTION 2.10 Book-Entry Notes................................................................ 8
SECTION 2.11 Notices to Clearing Agency...................................................... 9
SECTION 2.12 Definitive Notes................................................................ 9
SECTION 2.13 Authenticating Agent............................................................ 10
SECTION 2.14 Appointment of Paying Agent..................................................... 11
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest................................................ 12
SECTION 3.2 Maintenance of Office or Agency.................................................. 13
SECTION 3.3 Money for Payments To Be Held in Trust........................................... 13
SECTION 3.4 Existence........................................................................ 14
SECTION 3.5 Protection of Trust Estate....................................................... 14
SECTION 3.6 Opinions as to Trust Estate...................................................... 15
SECTION 3.7 Performance of Obligations; Servicing of Receivables............................. 15
SECTION 3.8 Negative Covenants............................................................... 16
SECTION 3.9 Annual Statement as to Compliance................................................ 17
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SECTION 3.10 The Issuer May Consolidate, Etc. Only on Certain Terms.......................... 17
SECTION 3.11 Successor or Transferee......................................................... 19
SECTION 3.12 No Other Business............................................................... 19
SECTION 3.13 No Borrowing.................................................................... 19
SECTION 3.14 Servicer's Obligations.......................................................... 19
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities............................... 19
SECTION 3.16 Capital Expenditures............................................................ 20
SECTION 3.17 Restricted Payments............................................................. 20
SECTION 3.18 Notice of Events of Default..................................................... 20
SECTION 3.19 Further Instruments and Acts.................................................... 20
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.......................................... 20
SECTION 4.2 Application of Trust Money....................................................... 21
SECTION 4.3 Repayment of Moneys Held by Paying Agent......................................... 22
SECTION 4.4 Duration of the Position of the Indenture Trustee for the Benefit
of Certificateholders.................................................................... 22
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default................................................................ 22
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment............................... 23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by the Indenture Trustee.... 23
SECTION 5.4 Remedies; Priorities............................................................. 25
SECTION 5.5 Optional Preservation of the Receivables......................................... 26
SECTION 5.6 Limitation of Suits.............................................................. 27
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest............ 27
SECTION 5.8 Restoration of Rights and Remedies............................................... 28
SECTION 5.9 Rights and Remedies Cumulative................................................... 28
SECTION 5.10 Delay or Omission Not a Waiver.................................................. 28
SECTION 5.11 Control by Noteholders.......................................................... 28
SECTION 5.12 Waiver of Past Defaults......................................................... 29
SECTION 5.13 Undertaking for Costs........................................................... 29
SECTION 5.14 Waiver of Stay or Extension Laws................................................ 29
SECTION 5.15 Action on Notes................................................................. 30
SECTION 5.16 Performance and Enforcement of Certain Obligations.............................. 30
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ARTICLE VI
THE INDENTURE TRUSTEE
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SECTION 6.1 Duties of the Indenture Trustee.................................................. 30
SECTION 6.2 Rights of the Indenture Trustee.................................................. 32
SECTION 6.3 Individual Rights of the Indenture Trustee....................................... 33
SECTION 6.4 The Indenture Trustee's Disclaimer............................................... 33
SECTION 6.5 Notice of Defaults............................................................... 33
SECTION 6.6 Reports by the Indenture Trustee to Holders...................................... 34
SECTION 6.7 Compensation and Indemnity....................................................... 34
SECTION 6.8 Replacement of the Indenture Trustee............................................. 34
SECTION 6.9 Successor Indenture Trustee by Merger............................................ 35
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee............... 36
SECTION 6.11 Eligibility; Disqualification................................................... 37
SECTION 6.12 Preferential Collection of Claims Against the Issuer............................ 37
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Indenture Trustee Names and
Addresses of the Noteholders............................................................. 37
SECTION 7.2 Preservation of Information; Communications to the Noteholders................... 38
SECTION 7.3 Reports by the Issuer............................................................ 38
SECTION 7.4 Reports by the Indenture Trustee................................................. 38
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.............................................................. 39
SECTION 8.2 Trust Accounts................................................................... 39
SECTION 8.3 General Provisions Regarding Accounts............................................ 40
SECTION 8.4 Release of Trust Estate.......................................................... 41
SECTION 8.5 Opinion of Counsel............................................................... 42
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders........................... 42
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders.......................... 43
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SECTION 9.3 Effect of Supplemental Indenture................................................. 45
SECTION 9.4 Conformity with Trust Indenture Act.............................................. 45
SECTION 9.5 Reference in Notes to Supplemental Indentures.................................... 45
SECTION 9.6 Execution of Supplemental Indentures............................................. 45
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption...................................................................... 46
SECTION 10.2 Form of Redemption Notice....................................................... 46
SECTION 10.3 Notes Payable on Redemption Date................................................ 46
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc....................................... 47
SECTION 11.2 Form of Documents Delivered to the Indenture Trustee............................ 48
SECTION 11.3 Actions of Noteholders.......................................................... 49
SECTION 11.4 Notices, etc., to the Indenture Trustee, the Issuer, and Rating Agencies........ 50
SECTION 11.5 Notices to Noteholders; Waiver.................................................. 50
SECTION 11.6 Alternate Payment and Notice Provisions......................................... 51
SECTION 11.7 Conflict with Trust Indenture Act............................................... 51
SECTION 11.8 Effect of Headings and Table of Contents........................................ 51
SECTION 11.9 Successors and Assigns.......................................................... 51
SECTION 11.10 Separability................................................................... 51
SECTION 11.11 Benefits of Indenture.......................................................... 52
SECTION 11.12 Legal Holidays................................................................. 52
SECTION 11.13 GOVERNING LAW.................................................................. 52
SECTION 11.14 Counterparts................................................................... 52
SECTION 11.15 Recording of Indenture......................................................... 52
SECTION 11.16 Trust Obligation............................................................... 52
SECTION 11.17 No Petition.................................................................... 53
SECTION 11.18 Inspection..................................................................... 53
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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 Note Depository Agreement
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<PAGE>
CROSS REFERENCE TABLE(1)
TIA Section Indenture Section
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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
(a)(1)(B)............................................... 5.12
(a)(2) ............................................... N.A.
(b) ............................................... 5.7
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(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.
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(c) ............................................... N.A.
317 (a)(1) ............................................... 5.3
(a)(2) ............................................... 5.3
(b) ............................................... 3.3
318 (a) ............................................... 11.7
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<PAGE>
INDENTURE dated as of April 1, 1998, between CHASE MANHATTAN
AUTO OWNER TRUST 1998-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 5.578% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 5.729%
Asset Backed Notes (the "Class A-2 Notes"), Class A-3 5.750% Asset Backed
Notes (the "Class A-3 Notes") and Class A-4 5.800% Asset Backed Notes (the
"Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, the "Notes"):
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 Exhibit A hereto, which is incorporated by reference herein, all
proceeds thereof and all amounts and monies received thereon on or after the
Cutoff Date (including proceeds of the repurchase of Receivables by the Seller
pursuant to Section 3.2 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 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
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2
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 April 1, 1998, between the Issuer and Chase Manhattan Bank USA, National
Association, 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.
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
<PAGE>
3
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 May 1999 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 and the Class A-4 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 and E,
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 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 and E 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.
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4
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 $250,000,000.00, Class A-2 Notes for original
issue in an aggregate principal amount of $200,000,000.00, Class A-3 Notes for
original issue in the aggregate principal amount of $321,000,000.00 and Class
A-4 Notes for original issue in the aggregate principal amount of
$282,800,000.00. The respective aggregate principal amount of Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes and Class A-4 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 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
<PAGE>
5
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 the City of New York an
office or offices or agency or agencies where Notes may be surrendered for
registration of transfer or 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(a) 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(a) 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.
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6
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 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
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7
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 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 and the Class A-4 Note
set forth in Exhibits B, C, D and E, 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.
<PAGE>
8
(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 and the Class A-4 Note, set forth in Exhibits B, C, D and E,
respectively. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable, if not 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 Note, except as provided in
Section 2.12. Unless and until Definitive Notes have been issued to Note Owners
pursuant to Section 2.12:
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9
(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 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
<PAGE>
10
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. 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. 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
<PAGE>
11
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
---------------------------------------
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. 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.
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12
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;
(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
<PAGE>
13
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 and (iv) for the benefit
of the Class A-4 Notes, to the holders of the Class A-4 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.
SECTION 3.2 Maintenance of Office or Agency. The Issuer will
maintain in 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
<PAGE>
14
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 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 such Trust
Estate against the claims of all persons and parties.
<PAGE>
15
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, 1999, 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, re-recording 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 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
<PAGE>
16
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:
(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
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17
(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, 1999, 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
(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;
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(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 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;
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(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 1998-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 stating
that Chase Manhattan Auto Owner Trust 1998-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.
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20
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 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:
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21
(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,
(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
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22
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 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
<PAGE>
23
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 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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24
(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;
(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
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25
(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 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;
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26
(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 and the Certificateholders
are sufficient to discharge in full all amounts then due and unpaid upon such
Notes for principal and interest and the Certificate Balance plus accrued
interest thereon, 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:
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
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27
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 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.
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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.
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
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(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 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
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30
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 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
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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 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.
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(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 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
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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 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) 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
(f) 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 knowledge or notice occurs. Except in the
case of a Default in accordance with the provisions of Section 313(c) of the
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34
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:
(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
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(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.
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
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36
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 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.
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(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 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
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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).
SECTION 7.3 Reports by the Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee 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 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,
1999 the Indenture Trustee shall mail to each Noteholder as required by TIA
ss.313(c) a brief report dated as of such date
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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.
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 the Noteholders to the
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40
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 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 (vi) 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 (vi) below, to the
Holders of the Class A-2 Notes until the Outstanding Amount of the
Class A-2 Notes is reduced to zero;
(vi) unless otherwise provided in clause (vi) 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 (vi) 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) 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 (vi) 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 May 1999 Distribution Date with respect to the
Class A-1 Notes will 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, the Class A-3 and the Class A-4 on the
applicable May 1999 Distribution Date with respect to the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes will be distributed pursuant to clauses
(i), (iii), (iv), and (v) of Section 8.2(c).
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
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41
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 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
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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.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.
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 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;
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(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; and
(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 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 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 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
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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 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.
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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 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.
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46
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Class A-4 Notes are subject to
redemption in whole, but not in part, on any Distribution Date upon 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-4 Notes to be redeemed,
whereupon all such Class A-4 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-4 Notes, 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-4 Notes and
the place where such Class A-4 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-4 Notes shall cease
to accrue on the Redemption Date.
Notice of redemption of the Class A-4 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-4 Notes shall not impair or affect the validity of the redemption of any
other Class A-4 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
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Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating the Redemption Price.
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.
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.
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49
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
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
<PAGE>
50
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 1998- B, in care
of Wilmington Trust Company, 1100 North Market Street, Wilmington,
Delaware, 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.
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 Standard & Poor's, at the following address: Standard & Poor's Ratings
Service, 26 Broadway (15th Floor), New York, New York 10004, Attention: Asset
Backed Surveillance Department and (iii) in the case of Fitch, at the following
address: Fitch IBCA Inc., 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 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.
<PAGE>
51
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.
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.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.
<PAGE>
52
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 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.
<PAGE>
53
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.
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.
<PAGE>
54
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 1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Emmett Harmon
-----------------------------------
Title: Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Marianna Stershic
--------------------------------------
Title: Assistant Vice President
<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 $ (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 1998-B
5.578% CLASS A-1 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-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 $___________ 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 May 1999
Distribution Date (which is May 10, 1999). 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 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 April 15, 1998. Interest will be computed on the basis of actual
days elapsed in a 360-day year (which is 25 days in the case
- ------------------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
2
of May 1999 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
1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
----------------------------------------------
Name:
Title:
<PAGE>
3
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
<PAGE>
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.578% Class A-1 Asset Backed Notes (herein called
the "Class A-1 Notes" or the "Notes"), all issued under an Indenture dated as
of April 1, 1998 (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 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-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 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.
<PAGE>
5
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,
National Association 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>
6
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 1998-B
5.729% CLASS A-2 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-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 $___________ 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 June 2000
Distribution Date. 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 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 April 15, 1998. 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.
- ------------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
2
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
1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
----------------------------------------------
Name:
Title:
<PAGE>
3
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
<PAGE>
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.729% Class A-2 Asset Backed Notes (herein called
the "Class A-2 Notes" or the "Notes"), all issued under an Indenture dated as
of April 1, 1998 (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 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-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 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.
<PAGE>
5
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,
National Association, 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>
6
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 1998-B
5.750% CLASS A-3 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-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 $___________ 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 October 2001 Distribution Date. 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 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 April 15, 1998. Interest will be computed on the basis of a 360-day
year of twelve 30-day
- -----------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
2
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
1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
----------------------------------------------
Name:
Title:
<PAGE>
3
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
<PAGE>
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.750% Class A-3 Asset Backed Notes (herein called
the "Class A-3 Notes" or the "Notes"), all issued under an Indenture dated as
of April 1, 1998 (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 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-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 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.
<PAGE>
5
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,
National Association, 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>
6
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 $ (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 1998-B
5.800% CLASS A-4 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-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 $___________ 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 February 2003 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, 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
- -----------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
<PAGE>
2
yet been paid, from April 15, 1998. 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
1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
-------------------------------------------
Name:
Title:
<PAGE>
3
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
<PAGE>
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.800% Class A-4 Asset Backed Notes (herein called
the "Class A-4 Notes" or the "Notes"), all issued under an Indenture dated as
of April 1, 1998 (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 and Class
A-3 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 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.
<PAGE>
5
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,
National Association, 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>
6
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
Note Depository Agreement
<PAGE>
CONFORMED COPY
CHASE MANHATTAN AUTO OWNER TRUST 1998-B
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of April 1, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
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...................................... 3
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.................................................................. 5
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............................... 6
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.................................................... 8
SECTION 3.7 Access to List of Certificateholders' Names and
Addresses............................................................................ 9
SECTION 3.8 Maintenance of Office or Agency...................................................... 9
SECTION 3.9 Appointment of Paying Agent.......................................................... 9
SECTION 3.10 Book-Entry Certificates.............................................................. 10
SECTION 3.11 Notices to Clearing Agency........................................................... 11
SECTION 3.12 Definitive Certificates.............................................................. 11
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 3.13 Authenticating Agent.................................................................. 12
SECTION 3.14 Actions of Certificateholders......................................................... 13
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to
Certain Matters....................................................................... 14
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters............................................................................... 14
SECTION 4.3 Action by Certificateholders with Respect to
Bankruptcy............................................................................ 15
SECTION 4.4 Restrictions on Certificateholders' Power............................................. 15
SECTION 4.5 Majority Control...................................................................... 15
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account..................................... 15
SECTION 5.2 Application of Funds in Certificate Distribution
Account............................................................................... 16
SECTION 5.3 Method of Payment..................................................................... 16
SECTION 5.4 No Segregation of Monies; No Interest................................................. 17
SECTION 5.5 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others........................... 17
SECTION 5.6 Signature on Returns; Tax Matters Partner............................................. 17
SECTION 5.7 Capital Accounts...................................................................... 17
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1 General Authority..................................................................... 18
SECTION 6.2 General Duties........................................................................ 19
SECTION 6.3 Action upon Instruction............................................................... 19
SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions.......................................................................... 19
SECTION 6.5 No Action Except under Specified Documents or
Instructions.......................................................................... 20
SECTION 6.6 Restrictions.......................................................................... 20
SECTION 6.7 Doing Business in Other Jurisdictions................................................. 20
ARTICLE VII
CONCERNING OWNER TRUSTEE
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 7.1 Acceptance of Trusts and Duties...................................................... 21
SECTION 7.2 Furnishing of Documents.............................................................. 23
SECTION 7.3 Representations and Warranties....................................................... 23
SECTION 7.4 Reliance; Advice of Counsel.......................................................... 24
SECTION 7.5 Not Acting in Individual Capacity.................................................... 24
SECTION 7.6 Owner Trustee May Own Certificates and Notes......................................... 24
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.1 Owner Trustee's Fees and Expenses.................................................... 25
SECTION 8.2 Indemnification...................................................................... 25
SECTION 8.3 Payments to Owner Trustee............................................................ 26
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement....................................................... 26
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.1 Eligibility Requirements for Owner Trustee........................................... 27
SECTION 10.2 Resignation or Removal of Owner Trustee.............................................. 27
SECTION 10.3 Successor Owner Trustee.............................................................. 28
SECTION 10.4 Merger or Consolidation of Owner Trustee............................................. 29
SECTION 10.5 Appointment of Co-Trustee or Separate Trustee........................................ 29
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments........................................................... 30
SECTION 11.2 No Legal Title to Owner Trust Estate in
Certificateholders................................................................... 31
SECTION 11.3 Limitations on Rights of Others...................................................... 32
SECTION 11.4 Notices.............................................................................. 32
SECTION 11.5 Severability......................................................................... 32
SECTION 11.6 Separate Counterparts................................................................ 32
SECTION 11.7 Successors and Assigns............................................................... 32
SECTION 11.8 No Recourse.......................................................................... 32
SECTION 11.9 [Reserved]........................................................................... 33
SECTION 11.10 Headings............................................................................. 33
SECTION 11.11 GOVERNING LAW........................................................................ 33
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 11.12 Certificate Transfer Restrictions.................................................... 33
EXHIBITS
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate of Trust
Exhibit C - Form of Certificate Depository Agreement
</TABLE>
iv
<PAGE>
TRUST AGREEMENT dated as of April 1, 1998 between CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION ("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 April 1, 1998, 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.
(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.
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The trust created hereby shall be
known as "Chase Manhattan Auto Owner Trust 1998-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 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.
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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.
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:
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(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.
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 (as
defined herein) 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 2.13 of this Agreement and for purposes
of maintaining Capital Accounts under Section 5.7 of this Agreement as
follows:
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(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 to 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.
(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 gross 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;
provided, that
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subsequent allocations of gross income and gain, or deductions, shall
take into account any special allocations made to a Certificateholder
under this Section 2.13 and shall be adjusted so that the amount of gross
income and gain, or deductions, allocated to a Certificateholder will
equal the amount of gross income and gain, or deductions, that would have
been allocated to such Certificateholder had no such special allocations
been made to such Certificateholder under this Section 2.13. 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
March 11, 1998 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 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
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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.
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 Certificateholder
making
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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.
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
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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 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
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additional Paying Agent shall agree with the Owner Trustee that as Paying Agent,
such 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 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 Cer-tificateholders
shall refer to actions taken by the Clearing Agency
upon in-
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structions from the Clearing Agency Participants, and
all references in this Agreement to distributions,
notices, reports and statements to
Certificate-holders 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 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
<PAGE>
12
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 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.
<PAGE>
13
(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: /s/
--------------------
Authorized Officer
or
/s/
------------------------
as Authenticating Agent
for the Owner Trustee,
/s/
--------------------
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 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
Certificateholder 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.
<PAGE>
14
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);
(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
<PAGE>
15
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. 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.
<PAGE>
16
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.
(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
<PAGE>
17
$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 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:
<PAGE>
18
(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.
(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 $250,000,000.00, Class A-2 Notes in
the aggregate principal amount of $200,000,000.00, Class A-3 Notes in the
aggregate principal amount of $321,000,000.00 and Class A-4 Notes in the
aggregate principal amount of $282,800,000.00. 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 Administrator
recommends or directs in writing with respect to the Basic Documents.
<PAGE>
19
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 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
<PAGE>
20
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.
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)
<PAGE>
21
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;
(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
<PAGE>
22
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;
(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
<PAGE>
23
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 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
<PAGE>
24
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 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.
<PAGE>
25
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 or that is the responsibility of Certificateholders under this Agreement.
SECTION 8.2 Indemnification. In accordance with Section 7.2
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.
<PAGE>
26
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.
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.
<PAGE>
27
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 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
<PAGE>
28
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.
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
<PAGE>
29
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.
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
<PAGE>
30
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.
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.
<PAGE>
31
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.
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.
<PAGE>
32
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 Department, if to the
Depositor, addressed to, Chase Manhattan Bank USA, National Association, 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 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
<PAGE>
33
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"
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 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.
<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/ Emmett Harmon
--------------------
Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By: /s/ 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.
<PAGE>
2
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.
CHASE MANHATTAN AUTO OWNER TRUST 1998-B
6.050% 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, National
Association, a national banking association.
(This Certificate does not represent an interest in or obligation of
Chase Manhattan Bank USA, National Association 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 1998-B (the "Issuer") formed by Chase
Manhattan Bank USA, National Association, a national banking association
(the "Depositor"). This Certificate has a Certificate Rate of 6.050% per
annum.
<PAGE>
3
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY, WILMINGTON TRUST COMPANY,
not in its individual capacity or not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By:_____________________ By:__________________________
Authenticating Agent
<PAGE>
4
Issuer was created pursuant to a Trust Agreement dated as of
April 1, 1998 (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,
National Association, as Seller and Servicer, dated as of April 1, 1998,
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 "6.050% Asset Backed Certificates" (herein
called the "Certificates"). Issued under the Indenture dated as of April
1, 1998, between the Issuer and Norwest Bank Minnesota, National
Association, as trustee (the "Indenture"), are four classes of Notes
designated as "Class A-1 5.578% Asset Backed Notes" (the "Class A-1
Notes"), "Class A-2 5.729% Asset Backed Notes" (the "Class A-2 Notes"),
"Class A-3 5.750% Asset Backed Notes" (the "Class A-3 Notes") and "Class
A-4 5.800% Asset Backed Notes" (the "Class A-4 Notes" and, together with
the Class A-1 Notes, the Class A-2 Notes, 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.
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.
<PAGE>
5
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.
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 1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
Dated: By: /s/
----------------------------
<PAGE>
6
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.
<PAGE>
EXHIBIT B
CERTIFICATE OF TRUST
<PAGE>
EXHIBIT C
CERTIFICATE DEPOSITORY AGREEMENT
<PAGE>
CONFORMED COPY
- -------------------------------------------------------------------------------
CHASE MANHATTAN AUTO OWNER TRUST 1998-B
Class A-1 5.578% Asset Backed Notes
Class A-2 5.729% Asset Backed Notes
Class A-3 5.750% Asset Backed Notes
Class A-4 5.800% Asset Backed Notes
------------------------------------
ADMINISTRATION AGREEMENT
Dated as of April 1, 1998
------------------------------------
The Chase Manhattan Bank,
Administrator
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. Duties of Administrator......................................... 2
SECTION 2. Records......................................................... 7
SECTION 3. Compensation.................................................... 7
SECTION 4. Additional Information To Be Furnished to Issuer................ 7
SECTION 5. Independence of Administrator................................... 7
SECTION 6. No Joint Venture................................................ 7
SECTION 7. Other Activities of Administrator............................... 8
SECTION 8. Term of Agreement; Resignation and Removal of Administrator..... 8
SECTION 9. Action upon Termination, Resignation or Removal................. 9
SECTION 10. Notices........................................................ 10
SECTION 11. Amendments..................................................... 11
SECTION 12. Successors and Assigns......................................... 11
SECTION 13. GOVERNING LAW.................................................. 12
SECTION 14. Headings....................................................... 12
SECTION 15. Counterparts................................................... 12
SECTION 16. Severability................................................... 12
SECTION 17. Not Applicable to The Chase Manhattan Bank in Other
Capacities............................................................ 12
SECTION 18. Limitation of Liability of Owner Trustee, Indenture Trustee and
Administrator......................................................... 12
SECTION 19. Third-Party Beneficiary........................................ 13
SECTION 20. Nonpetition Covenants.......................................... 13
SECTION 21. Liability of Administrator..................................... 13
EXHIBIT A - Form of Power of Attorney
<PAGE>
ADMINISTRATION AGREEMENT dated as of April 1, 1998,
among CHASE MANHATTAN AUTO OWNER TRUST 1998-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 5.578%
Asset Backed Notes (the "Class A-1 Notes"), the Class A-2 5.729% Asset
Backed Notes (the "Class A-2 Notes"), the Class A-3 5.750% Asset Backed
Notes (the "Class A-3 Notes") and the Class A-4 5.800% Asset Backed Notes
(the "Class A-4 Notes") and, together with the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes, the "Notes") pursuant to the Indenture
dated as of April 1, 1998 (as amended, modified or supplemented from time
to time in accordance with the provisions thereof, the "Indenture"),
between the Issuer and the Indenture Trustee and the 6.050% Asset Backed
Certificates (the "Certificates") pursuant to the Trust Agreement dated
as of April 1, 1998 (as amended, modified or supplemented from time to
time in accordance with the provisions thereof, the "Trust Agreement")
between Chase USA (defined below), as Depositor, and Wilmington Trust
Company, as owner trustee (the "Owner Trustee").
WHEREAS the Issuer has entered into certain agreements
in connection with the issuance of the Notes and the Certificates,
including (i) a Sale and Servicing Agreement dated as of April 1, 1998
(the "Sale and Servicing Agreement") (capitalized terms used herein and
not defined herein shall have the meanings assigned such terms in the
Sale and Servicing Agreement) between the Issuer and Chase Manhattan Bank
USA, National Association ("Chase USA"), as Servicer and Seller, (ii) a
Depository Agreement dated April __, 1998 (the "Note Depository
Agreement") among the Issuer, the Indenture Trustee, The Chase Manhattan
Bank, as Agent (the "Agent") and The Depository Trust Company, and (iii)
a Depository Agreement dated April __, 1998 among the Issuer, the Owner
Trustee, the Agent and The Depository Trust Company (the "Certificate
Depository Agreement," and together with the Note Depository Agreement,
the "Depository Agreements"), (iv) the Trust Agreement, and (v) the
Indenture (the Sale and Servicing Agreement, the Trust Agreement, the
Depository Agreements and the Indenture being hereinafter referred to
collectively as the "Related Agreements");
WHEREAS pursuant to the Related Agreements, the Issuer
and the Owner Trustee are required to perform certain duties in
connection with (a) the Notes and the collateral pledged therefor
pursuant to the Indenture (the "Collateral") and (b) the Certificates;
WHEREAS the Issuer desires to have the Administrator
perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause, and to provide such additional
services consistent with the terms of this Agreement and the Related
Agreements as the Issuer may from time to time request;
<PAGE>
2
WHEREAS the Administrator has the capacity to provide
the services required hereby and is willing to perform such services for
the Issuer and the Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties
agree as follows:
SECTION 1. Duties of Administrator. (a) Duties with
Respect to the Related Agreements. (i) The Administrator agrees to
perform all its duties as Administrator and the duties of the Issuer and
the Owner Trustee under the Depository Agreements. In addition, the
Administrator shall consult with the Owner Trustee regarding the duties
of the Issuer and the Owner Trustee under the Related Agreements.
The Administrator shall monitor the performance of the
Issuer and shall advise the Owner Trustee when action is necessary to
comply with the Issuer's or the Owner Trustee's duties under the
Indenture and the Depository Agreements. The Administrator shall prepare
for execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant
to the Indenture and the Depository Agreements. In furtherance of the
foregoing, the Administrator shall take all appropriate action that it is
the duty of the Issuer or the Owner Trustee to take pursuant to the
Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture
(references are to sections of the Indenture):
(A) the preparation of or obtaining of the documents
and instruments required for authentication of the Notes, if
any, and delivery of the same to the Indenture Trustee (Section
2.2);
(B) the duty to cause the Note Register to be kept and
to give the Indenture Trustee notice of any appointment of a new
Note Registrar and the location, or change in location, of the
Note Register and the office or offices where Notes may be
surrendered for registration of transfer or exchange (Section
2.4);
(C) the notification of Noteholders of the final
principal payment on their Notes (Section 2.7(b));
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of collateral (Section 2.9);
(E) the preparation of Definitive Notes and arranging
the delivery thereof (Section 2.12);
(F) the maintenance of an office or agency in the City
of New York for registration of transfer or exchange of Notes
(Section 3.2);
<PAGE>
3
(G) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust
(Section 3.3);
(H) the direction to Paying Agents to pay to the
Indenture Trustee all sums held in trust by such Paying Agents
(Section 3.3);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity
and enforceability of the Indenture, the Notes, the Collateral
and each other instrument and agreement included in the Trust
Estate (Section 3.4);
(J) the preparation of all supplements, amendments,
financing statements, continuation statements, if any,
instruments of further assurance and other instruments, in
accordance with Section 3.5 of the Indenture, necessary to
protect the Trust Estate (Section 3.5);
(K) the obtaining of the Opinion of Counsel on the
Closing Date and the annual delivery of Opinions of Counsel, in
accordance with Section 3.6 of the Indenture, as to the Trust
Estate, and the annual delivery of the Officers' Certificate and
certain other statements, in accordance with Section 3.9 of the
Indenture, as to compliance with the Indenture (Sections 3.6 and
3.9);
(L) the identification to the Indenture Trustee in an
Officers' Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.7(b));
(M) the notification of the Indenture Trustee and the
Rating Agencies of an Event of Servicing Termination pursuant to
the Sale and Servicing Agreement and, if such Event of Servicing
Termination arises from the failure of the Servicer to perform
any of its duties under the Sale and Servicing Agreement, the
taking of all reasonable steps available to remedy such failure
(Section 3.7(d));
(N) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligation under the Indenture (Section 3.11(b));
(O) the delivery of notice to the Indenture Trustee of
each Event of Default, Event of Servicing Termination and each
default by the Seller under the Sale and Servicing Agreement
(Section 3.18);
(P) the taking of such further acts as may be
reasonably necessary or proper to carry out more effectively the
purpose of the Indenture or to compel or secure the performance
and observance by the Seller and the Servicer of their
obligations under the Sale and Servicing Agreement (Sections
3.19 and 5.16);
<PAGE>
4
(Q) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the
preparation of an Officers' Certificate and the obtaining of the
Opinion of Counsel and the Independent Certificate relating
thereto (Section 4.1);
(R) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Trust Estate
in any manner permitted by law if an Event of Default shall have
occurred and be continuing (Section 5.4);
(S) provide the Indenture Trustee with the information
necessary to deliver to each Noteholder such information as may
be reasonably required to enable such Holder to prepare its
United States federal and state and local income or franchise
tax returns (Section 6.6);
(T) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.8);
(U) the preparation of any written instruments required
to confirm more fully the authority of any co-trustee or
separate trustee and any written instruments necessary in
connection with the resignation or removal of the Indenture
Trustee or any co-trustee or separate trustee (Sections 6.8 and
6.10);
(V) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.1);
(W) the preparation and, after execution by the Issuer,
the filing with the Commission and any applicable state agencies
and the Indenture Trustee of documents required to be filed on a
periodic basis with, and summaries thereof as may be required by
rules and regulations prescribed by, the Commission and any
applicable state agencies and the transmission of such
summaries, as necessary, to the Noteholders (Section 7.3);
(X) the obtaining of an Officers' Certificate, Opinion
of Counsel and Independent Certificates, if necessary, for the
release of the Trust Estate as defined in the Indenture
(Sections 8.4 and 8.5);
(Y) the preparation of Issuer Orders and Issuer
Requests and the obtaining of Opinions of Counsel with respect
to the execution of supplemental indentures and the mailing to
the Noteholders of notices with respect to such supplemental
indentures (Sections 9.1 and 9.2);
(Z) the execution of new Notes conforming to any
supplemental indenture (Section 9.5);
<PAGE>
5
(aa) provide the Indenture Trustee with the form of notice
necessary to deliver the notification of Noteholders of redemption of
the Notes (Section 10.2);
(bb) the preparation of all Officers' Certificates,
Opinions of Counsel and Independent Certificates with respect to
any requests by the Issuer to the Indenture Trustee to take any
action under the Indenture (Section 11.1(a));
(cc) the preparation and delivery of Officers' Certificates
and the obtaining of Independent Certificates, if necessary, for
the release of property from the lien of the Indenture (Section
11.1(b));
(dd) the preparation and delivery to the Noteholders and
the Indenture Trustee of any agreements with respect to alternate
payment and notice provisions (Section 11.6); and
(ee) the recording of the Indenture, if applicable (Section
11.15).
(b) Additional Duties. (i) In addition to the duties of
the Administrator set forth above, the Administrator shall perform such
calculations and shall prepare for execution by the Issuer or the Owner
Trustee or shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Related Agreements, and at the
request of the Owner Trustee shall take all appropriate action that it is
the duty of the Issuer or the Owner Trustee to take pursuant to the
Related Agreements. Subject to Section 5 of this Agreement, and in
accordance with the directions of the Owner Trustee, the Administrator
shall administer, perform or supervise the performance of such other
activities in connection with the Trust Estate (including the Related
Agreements) as are not covered by any of the foregoing provisions and as
are expressly requested by the Owner Trustee and are reasonably within
the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event that
any withholding tax is imposed on the Issuer's payments (or allocations
of income) to a "Certificateholder" as contemplated in Section 5.2(c) of
the Trust Agreement. Any such notice shall specify the amount of any
withholding tax required to be withheld by the Owner Trustee pursuant to
such provision.
(iii) Notwithstanding anything in this Agreement or the
Related Agreements to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee and the
Issuer set forth in Sections 2.11, 2.12, 2.13 and 5.5(a), (b) and (c) and
5.7 of the Trust Agreement with respect to, among other things,
accounting and reports to Certificateholders and the maintenance of
Capital Accounts; provided, however, that the Owner Trustee shall retain
responsibility for the distribution of the Schedule K-1s necessary to
enable each Certificateholder to prepare its federal and state income tax
returns.
<PAGE>
6
(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 May 15, 1998 a letter
in form and substance satisfactory to the Owner Trustee as to whether any
tax withholding is then required and, if required, the procedures to be
followed with respect thereto to comply with the requirements of the
Code. The Accountants shall be required to update the letter in each
instance that any additional tax withholding is subsequently required or
any previously required tax withholding shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in Sections 10.2 and 10.3 of the Trust Agreement
required to be performed in connection with the resignation or removal of
the Owner Trustee, the duties of the Administrator specified in Section
10.5 of the Trust Agreement required to be performed in connection with
the appointment and payment of co-Trustees, and any other duties
expressly required to be performed by the Administrator under the Trust
Agreement.
(vi) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its Affiliates; provided,
however, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would
be available from unaffiliated parties.
(vii) It is the intention of the parties hereto that
the Administrator shall, and the Administrator hereby agrees to, execute
on behalf of the Issuer or the Owner Trustee all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant
to the Basic Documents. In furtherance thereof, the Owner Trustee shall,
on behalf of itself and of the Issuer, execute and deliver to the
Administrator, and to each successor Administrator appointed pursuant to
the terms hereof, one or more powers of attorney substantially in the
form of Exhibit A hereto, appointing the Administrator the
attorney-in-fact of the Owner Trustee and the Issuer for the purpose of
executing on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and opinions.
(c) Non-Ministerial Matters. (i) With respect to
matters that in the reasonable judgment of the Administrator are
non-ministerial, the Administrator shall not take any action unless
within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed
action and the Owner Trustee shall not have withheld consent or provided
an alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
<PAGE>
7
(A) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection with
the collection of the Receivables);
(B) the amendment, change or modification of the Related
Agreements;
(C) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees
pursuant to the Indenture or the appointment of successor
Administrators or successor Servicers, or the consent to the
assignment by the Note Registrar, the Paying Agent or the
Indenture Trustee of its obligations under the Indenture; and
(D) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders or Certificateholders under the
Related Agreements, (y) sell the Trust Estate pursuant to Section 5.4 of
the Indenture or (z) take any action that the Issuer directs the
Administrator not to take on its behalf.
SECTION 2. Records. The Administrator shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall be accessible for
inspection by the Issuer, the Owner Trustee, the Indenture Trustee and
the Seller at any time during normal business hours.
SECTION 3. Compensation. As compensation for the
performance of the Administrator's obligations under this Agreement, the
Administrator shall be entitled to $1,000 per month which shall be
payable in accordance with Section 5.5 of the Sale and Servicing
Agreement.
SECTION 4. Additional Information To Be Furnished to
Issuer. The Administrator shall furnish to the Issuer from time to time
such additional information regarding the Collateral as the Issuer shall
reasonably request, including notification of Noteholders pursuant to
Section 1(a)(i) hereof.
SECTION 5. Independence of Administrator. For all
purposes of this Agreement, the Administrator shall be an independent
contractor and shall not be subject to the supervision of the Issuer or
the Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by
the Issuer or the Owner Trustee, as the case may be, the Administrator
shall have no authority to act for or represent the Issuer or the Owner
Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
SECTION 6. No Joint Venture. Nothing contained in this
Agreement shall (i) constitute the Administrator and either of the Issuer
or the Owner Trustee as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate
<PAGE>
8
entity, (ii) be construed to impose any liability as such on any of them
or (iii) be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the
others.
SECTION 7. Other Activities of Administrator. (a)
Nothing herein shall prevent the Administrator or its affiliates from
engaging in other businesses or, in its sole discretion, from acting in a
similar capacity as an administrator for any other person or entity even
though such person or entity may engage in business activities similar to
those of the Issuer, the Owner Trustee or the Indenture Trustee.
(b) The Administrator and its affiliates may generally
engage in any kind of business with any person party to a Related
Agreement, any of its affiliates and any person who may do business with
or own securities of any such person or any of its affiliates, without
any duty to account therefor to the Issuer, the Owner Trustee or the
Indenture Trustee.
SECTION 8. Term of Agreement; Resignation and Removal of
Administrator. (a) This Agreement shall continue in force until the
dissolution of the Issuer, upon which event this Agreement shall
automatically terminate.
(b) Subject to Sections 8(e) and (f), the Administrator
may resign its duties hereunder by providing the Issuer and the Owner
Trustee with at least 60 days' prior written notice.
(c) Subject to Sections 8(e) and (f), the Issuer may
remove the Administrator without cause by providing the Administrator
with at least 60 days' prior written notice.
(d) Subject to Sections 8(e) and (f), at the sole
option of the Issuer, the Administrator may be removed immediately upon
written notice of termination from the Issuer to the Administrator if any
of the following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and, after
notice of such default, shall not cure such default within ten
days (or, if such default cannot be cured in such time, shall
not give within ten days such assurance of cure as shall be
reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the
premises shall enter a decree or order for relief, and such
decree or order shall not have been vacated within 60 days, in
respect of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the
Administrator or any substantial part of its property or order
the winding-up or liquidation of its affairs; or
<PAGE>
9
(iii) the Administrator shall commence a
voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under
any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or
similar official for the Administrator or any substantial part
of its property, shall consent to the taking of possession by
any such official of any substantial part of its property, shall
make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events
specified in clause (ii) or (iii) of this Section shall occur, it shall
give written notice thereof to the Issuer, the Owner Trustee and the
Indenture Trustee within seven days after the happening of such event.
(e) No resignation or removal of the Administrator
pursuant to this Section shall be effective until (i) a successor
Administrator shall have been appointed by the Issuer and (ii) such
successor Administrator shall have agreed in writing to be bound by the
terms of this Agreement in the same manner as the Administrator is bound
hereunder.
(f) The appointment of any successor Administrator
shall be effective only after receipt of written confirmation from each
Rating Agency that the proposed appointment will not result in the
qualification, downgrading or withdrawal of any rating assigned to the
Notes and Certificates by such Rating Agency.
(g) A successor Administrator shall execute,
acknowledge and deliver a written acceptance of its appointment hereunder
to the resigning Administrator and to the Issuer. Thereupon the
resignation or removal of the resigning Administrator shall become
effective, and the successor Administrator shall have all the rights,
powers and duties of the Administrator under this Indenture. The
successor Administrator shall mail a notice of its succession to the
Noteholders and the Certificateholders. The resigning Administrator shall
promptly transfer or cause to be transferred all property and any related
agreements, documents and statements held by it as Administrator to the
successor Administrator and the resigning Administrator shall execute and
deliver such instruments and do other things as may reasonably be
required for fully and certainly vesting in the successor Administrator
all rights, powers, duties and obligations hereunder.
(h) In no event shall a resigning Administrator be
liable for the acts or omissions of any successor Administrator
hereunder.
(i) In the exercise or administration of its duties
hereunder and under the Related Documents, the Administrator may act
directly or through its agents or attorneys pursuant to agreements
entered into with any of them, and the Administrator shall not be liable
for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Administrator with due care.
SECTION 9. Action upon Termination, Resignation or
Removal. Promptly upon the effective date of termination of this
Agreement pursuant to Section 8(a) or the
<PAGE>
10
resignation or removal of the Administrator pursuant to Section 8(b) or
(c), respectively, the Administrator shall be entitled to be paid all
fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrator shall forthwith
upon termination pursuant to Section 8(a) deliver to the Issuer all
property and documents of or relating to the Collateral then in the
custody of the Administrator. In the event of the resignation or removal
of the Administrator pursuant to Section 8(b) or (c), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable
steps requested to assist the Issuer in making an orderly transfer of the
duties of the Administrator.
SECTION 10. Notices. Any notice, report or other
communication given hereunder shall be in writing and addressed as
follows:
(a) if to the Issuer or the Owner Trustee, to
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
with a copy to:
Chase 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
15th Floor
New York, New York 10001-2697
Attention: Structured Finance/Chase Auto
(c) if to the Indenture Trustee, to
Norwest Bank Minnesota, National Association
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
<PAGE>
11
(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.
SECTION 11. Amendments. This Agreement may be amended
from time to time by a written amendment duly executed and delivered by
the Issuer, the Administrator and the Indenture Trustee, with the written
consent of the Owner Trustee and without the consent of the Noteholders
and the Certificateholders, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders or
Certificateholders; provided that such amendment will not, as evidenced
by an Opinion of Counsel, materially and adversely affect the interest of
any Noteholder or Certificateholder. This Agreement may also be amended
by the Issuer, the Administrator and the Indenture Trustee with the
written consent of the Owner Trustee and the holders of Notes evidencing
a majority in the Outstanding Amount of the Notes and the holders of
Certificates evidencing a majority of the Certificate Balance for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of Noteholders or the Certificateholders; provided,
however, that no such amendment may (i) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of
payments on Receivables or distributions that are required to be made for
the benefit of the Noteholders or Certificateholders or (ii) reduce the
aforesaid percentage of the holders of Notes and Certificates which are
required to consent to any such amendment, without the consent of the
holders of all the outstanding Notes and Certificates. Notwithstanding
the foregoing, the Administrator may not amend this Agreement without the
permission of the Seller, which permission shall not be unreasonably
withheld.
SECTION 12. Successors and Assigns. This Agreement may
not be assigned by the Administrator unless such assignment is previously
consented to in writing by the Issuer and the Owner Trustee and subject
to receipt by the Owner Trustee of written confirmation from each Rating
Agency that such assignment will not result in the qualification,
downgrading or withdrawal of any rating assigned to the Notes and
Certificates by such Rating Agency in respect thereof. An assignment with
such consent and satisfaction, if accepted by the assignee, shall bind
the assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer or the Owner
Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of assets) to the Administrator,
provided that such successor organization executes and delivers to the
Issuer, the Owner Trustee and the Indenture Trustee an agreement in which
such
<PAGE>
12
corporation or other organization agrees to be bound hereunder by the
terms of said assignment in the same manner as the Administrator is bound
hereunder. Subject to the foregoing, this Agreement shall bind any
successors or assigns of the parties hereto.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Headings. The section headings hereof have
been inserted for convenience of reference only and shall not be
construed to affect the meaning, construction or effect of this
Agreement.
SECTION 15. Counterparts. This Agreement may be
executed in counterparts, each of which when so executed shall together
constitute but one and the same agreement.
SECTION 16. Severability. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall
be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof and any such
prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 17. Not Applicable to The Chase Manhattan Bank
in Other Capacities. Nothing in this Agreement shall affect any
obligation The Chase Manhattan Bank may have in any other capacity.
SECTION 18. Limitation of Liability of Owner Trustee,
Indenture Trustee and Administrator. (a) Notwithstanding anything
contained herein to the contrary, this instrument has been signed by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall Wilmington
Trust Company in its individual capacity or any beneficial owner of the
Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of
which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of Articles
VI, VII and VIII of the Trust Agreement.
(b) Notwithstanding anything contained herein to the
contrary, this Agreement has been signed by Norwest Bank Minnesota,
National Association, not in its individual capacity but solely as
Indenture Trustee, and in no event shall Norwest Bank Minnesota, National
Association have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in
any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the
Issuer.
<PAGE>
13
(c) No recourse under any obligation, covenant or
agreement of the Issuer contained in this Agreement shall be had against
any agent of the Issuer (including the Administrator) as such by the
enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and
understood that this Agreement is solely an obligation of the Issuer as a
Delaware business trust, and that no personal liability whatever shall
attach to or be incurred by any agent of the Issuer (including the
Administrator), as such, under or by reason of any of the obligations,
covenants or agreements of the Issuer contained in this Agreement, or
implied therefrom, and that any and all personal liability for breaches
by the Issuer of any such obligations, covenants or agreements, either at
common law or at equity, or by statute or constitution, of every such
agent is hereby expressly waived as a condition of and in consideration
for the execution of this Agreement.
SECTION 19. Third-Party Beneficiary. Each of the Seller
(to the extent provided in Section 11) and the Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights
and benefits hereunder and may enforce the provisions hereof as if it
were a party hereto.
SECTION 20. Nonpetition Covenants. Notwithstanding any
prior termination of this Agreement, the Administrator, the Issuer and
the Indenture Trustee shall not, prior to the date which is one year and
one day after the termination of this Agreement with respect to the
Issuer, acquiesce, petition or otherwise invoke or cause the Issuer to
invoke the process of any court of government authority for the purpose
of commencing or sustaining a case against the Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
SECTION 21. Liability of Administrator. Notwithstanding
any provision of this Agreement, the Administrator shall not have any
obligations under this Agreement other than those specifically set forth
herein, and no implied obligations of the Administrator shall be read
into this Agreement. Neither the Administrator nor any of its directors,
officers, agents or employees shall be liable for any action taken or
omitted to be taken in good faith by it or them under or in connection
with this Agreement, except for its or their own gross negligence or
willful misconduct and in no event shall the Administrator be liable
under or in connection with this Agreement for indirect, special, or
consequential losses or damages of any kind, including lost profits, even
if advised of the possibility thereof and regardless of the form of
action by which such losses or damages may be claimed. Without limiting
the foregoing, the Administrator may (a) consult with legal counsel
(including counsel for the Issuer), independent public accountants and
other experts selected by it and shall not be liable for any action taken
or omitted to be taken in good faith by it in accordance with the advice
of such counsel, accountants or experts and (b) shall incur no liability
under or in respect of this Agreement by acting upon any notice
(including notice by telephone), consent, certificate or other instrument
or writing (which may be by facsimile) believed by it to be genuine and
signed or sent by the proper party or parties.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
CHASE MANHATTAN AUTO OWNER TRUST
1998-B
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee,
By: /s/ Emmett Harmon
------------------------------------
Title: Vice President
NORWEST BANK, MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee,
By: /s/ Marianna Stershic
------------------------------------
Title: Assistant Vice President
THE CHASE MANHATTAN BANK,
as Administrator
By: /s/ Kimberly K. Costa
------------------------------------
Title: Second Vice President
<PAGE>
15
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company,
a Delaware banking corporation, not in its individual capacity but solely
as owner trustee ("Owner Trustee") for Chase Manhattan Auto Owner Trust
1998-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 April 1, 1998 among the Trust, The
Chase Manhattan Bank, as Administrator, and Norwest Bank Minnesota,
National Association, as Indenture Trustee, as such may be amended from
time to time.
All powers of attorney for this purpose heretofore filed or
executed by the Owner Trustee are hereby revoked.
EXECUTED this ____ day of _______, 1998.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: __________________________
Name:
Title:
