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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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): September 26, 1997
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Chevy Chase Bank, F.S.B. (as Seller under the Pooling and Servicing Agreement
dated as of September 1, 1997, providing for the issuance of Chevy Chase Auto
Receivables Trust 1997-3, 6.20% Auto Receivables Backed Certificates, Class A).
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(Exact Name of registrant as specified in its charter)
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United States 333-21707 52-0897004
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(State or other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
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8401 Connecticut Avenue, Chevy Chase, Maryland 20815
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including Area Code: (301) 986-7000
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Not applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
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In connection with the offering and sale of 6.20% Auto Receivables Backed
Certificates, Class A, of which Chevy Chase Auto Receivables Trust, 1997-3 is
the issuer as described in a Prospectus Supplement dated as of September 18,
1997 to the Prospectus dated September 17, 1997, a pooling and servicing
agreement was entered into as of September 1, 1997 among Chevy Chase Bank,
F.S.B. as seller and servicer (the "Seller") and U.S. Bank National Association,
as trustee; an underwriting agreement was entered into as of September 18, 1997
among the Seller and Credit Suisse First Boston Corporation, as representative
of the underwriters (the "Underwriter"); and an indemnification agreement was
entered into as of September 18, 1997 among the Seller, the Underwriter and the
certificate insurer.
Use of Proceeds
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On September 17, 1997, Chevy Chase Auto Receivables Trust 1997-3 (the
"Issuer")commenced an offering of 6.20% Auto Receivables Backed Certificates,
Class A (the "Securities") issued pursuant to a Pooling and Servicing Agreement
dated as of September 1, 1997 by and among Chevy Chase Bank, F.S.B., as Seller
and Servicer (the "Bank") and U.S. Bank National Association, as Trustee. The
offering is described in the Prospectus Supplement dated September 18, 1997 to
the Prospectus dated September 17, 1997, and the offering was made under the
registration statement on Form S-3 filed with the Securities and Exchange
Commission on February 12, 1997 which became effective on March 11, 1997 and was
assigned file number 333-21707.
The offering terminated on September 26, 1997 after the sale of all
Securities registered. The managing underwriters of the offering were Credit
Suisse First Boston, J.P. Morgan & Co. and Smith Barney Inc. A total of
$193,949,671.10 of Securities were registered, with an aggregate price to the
public of $193,949,671.10 plus accrued interest thereon at the rate of 6.20% per
annum from September 20, 1997. All of the Securities registered were sold, for
an aggregate offering price to the public of $193,949,671.10 plus accrued
interest thereon at the rate of 6.20% per annum from September 20, 1997.
In connection with issuance and distribution of the Securities, from the
date the offering commenced through the date the offering terminated, the Bank
paid underwriting commissions and discounts of $484,874.18, and incurred other
expenses, including legal fees and costs and expenses paid to or for the
underwriters, reasonably estimated to be $475,000.00. All such other expenses
were paid by direct or indirect payments to persons other than (i) directors,
officers or general partners of the Issuer or the Bank or their associates, (ii)
persons owning ten percent or more of any class of equity securities of the
Issuer or the Bank and (iii) affiliates of the Issuer or the Bank. The total
amount of expenses paid by the Bank is estimated to be $959,874.18. After
deducting the total expenses described above, the net offering proceeds to the
Bank are estimated to be $192,989,796.92 plus accrued interest on the total
amount of the Securities
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(as set forth above) at the rate of 6.20% per annum from September 20, 1997.
Of the net offering proceeds received by the Bank, an amount equal to
$96,060,798.68 was used by the Bank to purchase certain receivables from
Consumer Finance Corporation, its wholly-owned subsidiary; $3,636,556.33 was
used to fund a reserve account and $149,027.66 was used to fund a yield
maintenance account; the remainder of such net proceeds were used by the Bank
for general corporate purposes.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits;
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
(1) Underwriting Agreement
1.1 Underwriting Agreement
(4) Instruments defining the rights of security holders,
including indentures
4.1 Pooling and Servicing Agreement
(10) Material Contracts
10.1 Indemnification Agreement
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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.
CHEVY CHASE BANK, F.S.B.
Date: September 26, 1997 By: /s/ Mark A. Holles
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Mark A. Holles,
Vice President
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Exhibit Index
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Exhibit
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1.1 Underwriting Agreement
4.1 Pooling and Servicing Agreement
10.1 Indemnification Agreement
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Exhibit 1.1
CHEVY CHASE AUTO RECEIVABLES TRUST 1997-3
6.20% Auto Receivables Backed Certificates, Class A
UNDERWRITING AGREEMENT
September 18, 1997
Credit Suisse First Boston Corporation
as Representative of the Underwriters
identified on Schedule 1
Eleven Madison Avenue
New York, NY 10010
Dear Sirs:
INTRODUCTION. Chevy Chase Bank, F.S.B., a federally chartered stock
savings bank ("Chevy Chase"), has authorized the issuance and sale of 6.20% Auto
Receivables Backed Certificates, Class A (the "Certificates"), evidencing
interests in a trust (the "Trust") consisting, among other things, of (i) simple
interest retail installment sales contracts and installment loans (the
"Receivables") secured by new and used automobiles, light duty trucks and vans
(the "Vehicles") financed thereby, (ii) amounts due or received thereunder on or
after September 1, 1997 (the "Cut-Off Date"), and (iii) security interests in
the Vehicles financed thereby. The Certificates will be issued under a Pooling
and Servicing Agreement dated as of September 1, 1997 (the "Trust Agreement")
between Chevy Chase as seller and as servicer and U.S. Bank National
Association, doing business as First Bank National Association, as trustee (the
"Trustee").
The Certificates will evidence fractional undivided interests in 96% of the
Trust. A class of subordinated 9.00% Auto Receivables Backed Certificates,
Class B (the "Class B Certificates") will evidence fractional undivided
interests in 4% of the Trust. The Trustee, on behalf of the holders of the
Certificates (the "Certificateholders"), will have the benefit of a financial
guaranty insurance policy (the "Certificate Insurance Policy") from MBIA
Insurance Corporation (the "Certificate Insurer"). The Trustee will also have
access to a Reserve Account to be established for the benefit of the
Certificateholders, the holders of the Class B Certificates and the Certificate
Insurer. Each Certificateholder and each holder of Class B Certificates will
also purchase the right to receive a pro rata share of the applicable portion of
the amounts payable under the Yield Maintenance Account established pursuant to
the Trust Agreement. The Certificates will be issued in an aggregate principal
amount of $193,949,671.10, which, together with the $8,081,236.30 aggregate
principal amount of the Class B Certificates, is equal to the original pool
balance of the Receivables, exclusive of accrued interest, as of the opening of
business on the Cut-Off Date. The forms of the Trust Agreement and the
Certificate Insurance
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Policy have been timely filed as exhibits to the Registration Statement (as such
term is hereinafter defined). Capitalized terms used but not defined herein
shall have the meanings given to them in the Trust Agreement.
Chevy Chase hereby agrees with the several Underwriters named in Schedule 1
hereto (the "Underwriters") as follows:
REPRESENTATIONS AND WARRANTIES OF CHEVY CHASE. Chevy Chase represents and
warrants to, and agrees with, each of the Underwriters that:
A Registration Statement on Form S-3 (No. 333-21707) relating to the
Certificates, including a form of Prospectus, has been filed with the Securities
and Exchange Commission (the "Commission") and either (i) has been declared
effective under the Securities Act of 1933 (the "Act") and is not proposed to be
amended or (ii) is proposed to be amended by amendment or post-effective
amendment. If Chevy Chase does not propose to amend such Registration Statement
or if any post effective amendment to such Registration Statement has been filed
with the Commission prior to the execution and delivery of this Agreement, such
Registration Statement or such post-effective amendment, as the case may be, has
been declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means (i) if Chevy Chase has advised Credit Suisse First Boston
Corporation, as representative of the Underwriters (the "Representative"), that
it does not propose to amend such Registration Statement, the date and time as
of which such Registration Statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission, or (ii) if Chevy Chase has
advised the Representative that it proposes to file an amendment or post-
effective amendment to such Registration Statement, the date and time as of
which such Registration Statement, as amended by such amendment or post-
effective amendment, as the case may be, is declared effective by the
Commission. "Effective Date" means the date of the Effective Time. Such
Registration Statement, as amended at the Effective Time, including all material
incorporated by reference therein and including all information, if any, deemed
to be a part of such Registration Statement as of the Effective Time pursuant to
Rule 430A(b) under the Act, is referred to herein as the "Registration
Statement". The term "Base Prospectus" means the prospectus included in the
Registration Statement, as such Base Prospectus has been amended or supplemented
subsequent to the Effective Time by any Prospectus filed with the Commission
pursuant to Rule 424(b)(2), (3), (4) or (5). The term "Prospectus Supplement"
means the preliminary prospectus supplement dated September 17, 1997 and the
prospectus supplement dated the date hereof, both specifically relating to the
Certificates, as both were filed with the Commission pursuant to Rule 424 under
the Act (together the "Prospectus Supplement"). The Base Prospectus and the
Prospectus Supplement, together with all material incorporated by reference in
such Base Prospectus or such Prospectus Supplement, is hereinafter referred to
as the "Prospectus."
If the Effective Time is prior to the execution and delivery of this
Agreement: (i) on the Effective Date, the Registration Statement conformed, and
on the date of this Agreement the Registration Statement conforms, in all
material respects with the requirements of the Act and
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the rules and regulations of the Commission ("Rules and Regulations") and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) on the date of this Agreement, the Prospectus
conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b)
and at the Closing Date, the Prospectus will conform, in all material respects
to the requirements of the Act and the Rules and Regulations and the Prospectus
does not include, and will not include, any untrue statement of a material fact,
and does not omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Effective Time is subsequent to the execution and
delivery of this Agreement, on the Effective Date the Registration Statement and
the Prospectus will conform in all material respects to the requirements of the
Act and the Rules and Regulations, and (i) the Registration Statement will not
include any untrue statement of a material fact or will not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (ii) the Prospectus will not include an untrue
statement of a material fact or will not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The two preceding sentences do not apply
to statements in or omissions from the Registration Statement or Prospectus
based upon written information furnished to Chevy Chase by any Underwriters
through the Representative specifically for use therein, it being understood the
only such information is that described as such in Section 8(b). The conditions
to the use by Chevy Chase of a Registration Statement on Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the Prospectus. There are no contracts
or documents which were required to be filed as exhibits to the Registration
Statement pursuant to the Act or the Rules and Regulations on or prior to the
Effective Date which have not been so filed on or prior to the Effective Date or
that were required to be filed as exhibits to the Registration Statement
pursuant to the Act or the Rules and Regulations which have not been filed as
exhibits to reports filed under the Exchange Act that are incorporated by
reference into the Registration Statement.
Since the respective dates as of which information is given in the
Prospectus, or the Prospectus as amended and supplemented, there has not been
any material adverse change in the general affairs, management, or results of
operations of Chevy Chase or of its subsidiaries otherwise than as set forth or
contemplated in the Prospectus or the Prospectus as amended and supplemented,
nor has there been any adverse change in the general affairs, management, or
results of operations of any other affiliate of Chevy Chase which could have a
material adverse effect on the general affairs, management or results of
operations of Chevy Chase or its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus or the Prospectus as amended and supplemented.
Chevy Chase is a federally chartered stock savings bank duly organized and
validly existing under the laws of the United States of America, and has full
corporate power, authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under this
Agreement, the Trust Agreement and the Indemnification Agreement, and
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to cause the Certificates to be issued. Chevy Chase has conducted and is
conducting its business so as to comply in all material respects with all
applicable statutes and regulations, including, without limitation, all
regulations, decisions, directives and orders of the Office of Thrift
Supervision. Chevy Chase is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification.
(i) There are no legal, governmental or regulatory proceedings pending to
which Chevy Chase is a party or to which any of its property is the subject,
which, if determined adversely to Chevy Chase, would individually or in the
aggregate have a material adverse effect on the performance by Chevy Chase of
this Agreement, the Trust Agreement and the Indemnification Agreement or the
consummation of the transactions contemplated hereunder or thereunder and (ii)
to the best of its knowledge, no such proceedings are threatened or contemplated
by governmental or regulatory authorities or threatened by others.
This Agreement has been duly authorized and validly executed and delivered
by Chevy Chase and constitutes a valid and binding agreement of Chevy Chase,
enforceable against Chevy Chase in accordance with its terms, except to the
extent that (i) the enforceability hereof may be subject to insolvency,
reorganization, moratorium, receivership, conservatorship, or other similar
laws, regulations or procedures of general applicability now or hereafter in
effect relating to or affecting creditors' or other obligees' rights generally
or the rights of creditors or obligees of federally chartered stock savings
banks, the deposits of which are insured by the Federal Deposit Insurance
Corporation (the "FDIC"), (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought
and (iii) rights to indemnification and contribution under this Agreement may be
limited by state or federal securities laws or the policies underlying such
laws.
The Trust Agreement and the Indemnification Agreement have been duly
authorized by Chevy Chase and, when executed and delivered by Chevy Chase and
assuming the due authorization, execution and delivery of the Trust Agreement
and the Indemnification Agreement by the other parties thereto, will constitute
valid and binding obligations of Chevy Chase enforceable against Chevy Chase in
accordance with their respective terms, except to the extent that (i) the
enforceability thereof may be subject to insolvency, reorganization, moratorium,
receivership, conservatorship, or other similar laws, regulations or procedures
of general applicability now or hereafter in effect relating to or affecting
creditors' or obligees' rights generally or the rights of creditors or obligees
of federally chartered stock savings banks, the deposits of which are insured by
the FDIC, (ii) the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought and (iii)
rights to indemnification and contribution may be limited by state or federal
securities laws or the policies underlying such laws.
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The issuance and delivery of the Certificates, the consummation of any
other of the transactions contemplated herein, in the Trust Agreement and the
Indemnification Agreement or the fulfillment of the terms of this Agreement, the
Trust Agreement or the Indemnification Agreement, do not and will not conflict
with or violate any term or provision of the Charter or By-laws of Chevy Chase,
any statute, order or regulation applicable to Chevy Chase of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over Chevy Chase and do not and will not conflict with, result in a breach or
violation or the acceleration of or constitute a default under or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of Chevy Chase pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which Chevy Chase is a party or by which Chevy Chase may be bound or to which
any of the property or assets of Chevy Chase may be subject except for
conflicts, violations, breaches, accelerations and defaults which would not,
individually or in the aggregate, be materially adverse to Chevy Chase or
materially adverse to the transactions contemplated by this Agreement.
Arthur Andersen LLP is an independent public accountant with respect to
Chevy Chase as required by the Act and the Rules and Regulations.
The direction by Chevy Chase to the Trustee to execute, countersign, issue
and deliver the Certificates has been duly authorized by Chevy Chase, and,
assuming the Trustee has been duly authorized to do so, when executed,
countersigned, issued and delivered by the Trustee in accordance with the Trust
Agreement, the Certificates will be validly issued and outstanding and will be
entitled to the benefits of the Trust Agreement.
No consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body of the United States is
required for the issuance and sale of the Certificates, or the consummation by
Chevy Chase of the other transactions contemplated by this Agreement, the Trust
Agreement or the Indemnification Agreement, except the registration under the
Act of the Certificates and such consents, approvals, authorizations,
registrations or qualifications as may have been obtained or effected or as may
be required under securities or Blue Sky laws in connection with the purchase
and distribution of the Certificates by the Underwriters.
Chevy Chase possesses all material licenses, certificates, authorizations
or permits issued by the appropriate state, Federal or foreign regulatory
agencies or bodies necessary to conduct the business now conducted by it and as
described in the Prospectus and Chevy Chase has not received notice of
proceedings relating to the revocation or modification of any such license,
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations, financial condition or
income.
At the time of execution and delivery of the Trust Agreement, Chevy Chase
(i) will not have assigned to any person any of its right, title or interest in
the Receivables or in the Trust Agreement or the Certificates and (ii) will have
the power and authority to sell the Receivables to
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the Trustee and to sell the Certificates to the Underwriters, and upon execution
and delivery of the Trust Agreement by the Trustee, the Trustee will have
acquired beneficial ownership of all of Chevy Chase's right, title and interest
in and to the Receivables, and upon delivery to the Underwriters of the
Certificates the Underwriters will have good and marketable title to the
Certificates.
As of the Cut-Off Date, the Receivables will meet the eligibility criteria
described in the Prospectus.
The Trust created by the Trust Agreement is not, and immediately following
the issuance and sale of the Certificates will not be, required to be registered
as an "investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act"), as in effect on the date hereof.
Chevy Chase has authorized the conveyance of the Receivables to the Trust,
and Chevy Chase has authorized the Trust to issue the Certificates.
Each of the Certificates, the Trust Agreement and the Certificate Insurance
Policy conforms in all material respects to the descriptions thereof contained
in the Prospectus.
Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Trust Agreement, the
Indemnification Agreement, the Certificate Insurance Policy and the Certificates
that are required to be paid by Chevy Chase at or prior to the Closing Date have
been paid or will be paid at or prior to the Closing Date.
Chevy Chase will not apply the proceeds of the sale of the Certificates
pursuant to this Agreement to purchase securities (which term does not include
the Receivables) within the meaning of Regulation T promulgated by the Federal
Reserve Board.
As of the Closing Date, the representations and warranties of Chevy Chase
in the Trust Agreement and the Indemnification Agreement will be true and
correct.
Any certificate signed by an officer of Chevy Chase and delivered to the
Underwriters or the Underwriters' counsel in connection with an offering of the
Certificates shall be deemed, and shall state that it is, a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 2 are made.
PURCHASE, SALE, DELIVERY AND PAYMENTS. The Underwriters' commitment to
purchase the Certificates pursuant to this Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth. Chevy Chase
agrees to instruct the Trustee to issue and agrees to sell to the Underwriters,
and the Underwriters, severally and not jointly, agree, to purchase from Chevy
Chase at the purchase price for the Certificates set forth opposite the names of
the Underwriters on Schedule 1 hereto, the respective principal amount of
Certificates set forth on Schedule 1 hereto. Payment of the purchase price
for, and delivery of, any Certificates to be
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purchased by the Underwriters shall be made at the offices of Shaw, Pittman,
Potts & Trowbridge, 1625 Broadway, New York, New York or at such other place as
shall be agreed upon by the Underwriters and Chevy Chase, at 10:00 a.m. New York
City time on September 26, 1997 (the "Closing Date"), or at such other time or
date or time as shall be agreed upon in writing by the Representative and Chevy
Chase. On the Closing Date, payment shall be made to Chevy Chase by wire
transfer of same day funds payable to the account of Chevy Chase against
delivery to the Trustee as custodian for The Depository Trust Company ("DTC") of
the Certificates in the form of one or more global certificates in definitive
form (the "Global Certificates") and registered in the name of Cede & Co., as
nominee for DTC. The Global Certificates will be made available for checking at
the offices of Shaw, Pittman, Potts & Trowbridge at least 24 hours prior to the
Closing Date.
OFFERING BY UNDERWRITERS. It is understood that the Underwriters propose
to offer the Certificates for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
COVENANTS OF CHEVY CHASE. Chevy Chase covenants with the Underwriters as
follows:
To prepare a Prospectus setting forth any price related information
previously omitted from the effective Registration Statement pursuant to Rule
430A under the Act within the time period prescribed by Rule 430A, and to
transmit such Prospectus to the Commission for filing pursuant to Rule 424(b)
under the Act within the prescribed time period, and prior to the Closing Date
to provide evidence satisfactory to the Underwriters of such timely filing, or
to prepare and timely file a post-effective amendment to the Registration
Statement providing such information, which post-effective amendment shall have
been declared effective in accordance with the requirements of Rule 430A under
the Act and to provide evidence satisfactory to the Underwriters of the
effectiveness thereof.
If at any time when the Prospectus as amended or supplemented is required
by the Act to be delivered in connection with sales of the Certificates by the
Underwriters, any event shall occur or condition exist as a result of which it
is necessary, in the opinion of the Underwriters' counsel or counsel for Chevy
Chase, further to amend or supplement the Prospectus as then amended or
supplemented in order that the Prospectus as amended or supplemented will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of circumstances
existing at the time it is delivered to a purchaser, not misleading or if it
shall be necessary, in the opinion of any such counsel, at any such time to
amend or supplement the Registration Statement or the Prospectus as then amended
or supplemented in order to comply with the requirements of the Act or the Rules
and Regulations, or if required by such Rules and Regulations, including Rule
430A thereunder, to file a post-effective amendment to such Registration
Statement (including an amended Prospectus), Chevy Chase will promptly notify
the Representative of such event and will prepare and file with the Commission
(subject to the Representative's prior review), at its own expense, such
amendment or supplement as may be necessary to correct such untrue statement or
omission
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or to make the Registration Statement comply with such requirements,
and within two Business Days will furnish to the Underwriters as many copies of
the Prospectus, as amended or supplemented, as the Underwriters shall reasonably
request. Neither the Representative's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6 of this Agreement.
Chevy Chase will give the Underwriters reasonable notice of its intention
to file any amendment to the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented, pursuant to the Act, and will furnish the
Underwriters with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any such
amendment or supplement to which the Underwriters or the Underwriters' counsel
shall object.
Chevy Chase will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or the Prospectus as amended or supplemented,
(iii) of the receipt and contents of any comments from the Commission with
respect to the Registration Statement or the Prospectus or the Prospectus as
amended or supplemented, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or for additional information and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of, or threat of, any proceedings for that purpose or (vi) the
suspension of qualification of the Certificates for offering or sale in any
jurisdiction or the initiation of any proceeding for that purpose. Chevy Chase
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
Chevy Chase will deliver to the Underwriters as many signed and as many
conformed copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus),
each related preliminary prospectus, and so long as delivery of a Prospectus
relating to the Certificates is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Underwriters may reasonably request. Chevy Chase
will also furnish to the Representative copies of any report on Form SR required
by Rule 463 under the Act.
Chevy Chase will make generally available to holders of the Certificates as
soon as practicable, but in any event not later than the Availability Date (as
defined below), earning statements of the Trust (which need not be audited)
complying with Section 11(a) of the Act and the Rules and Regulations (including
Rule 158) and covering a period of at least twelve consecutive months beginning
after the Effective Date which will satisfy the provisions of Section 11(a) of
the Act. For the purposes of the preceding sentence, the "Availability Date"
means the 45th day after the end of the Trust's fourth fiscal quarter following
the fiscal quarter
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that includes the Effective Date, except that, if such fourth fiscal quarter is
the last quarter of the Trust's fiscal year, "Availability Date" means the 90th
day after the end of such fourth fiscal quarter.
Chevy Chase will endeavor, in cooperation with the Underwriters, to qualify
the Certificates for sale and the determination of their eligibility for
investment under the applicable securities laws of such states and other
jurisdictions of the United States as the Representative may designate, and will
maintain or cause to be maintained such qualifications in effect for as long as
may be required for the distribution of the Certificates. Chevy Chase will file
or cause the filing of such statements and reports as may be required by the
laws of each jurisdiction in which the Certificates have been qualified as above
provided.
Chevy Chase will not, directly or indirectly, without the Underwriters'
prior consent, publicly offer or sell or contract to sell or attempt to offer,
sell or dispose of any securities representing interests in or secured by the
Receivables for a period of 30 days following the commencement of the offering
of the Certificates to the public; provided, however, that Chevy Chase may
contract to sell or attempt to offer, sell or dispose of the Class B
Certificates.
For a period from the date of this Agreement until the retirement of the
Certificates, Chevy Chase, as Servicer, will deliver to the Representative and,
upon request, to each of the other Underwriters, as soon as practicable, copies
of each certificate, report or notice and the annual statements of compliance
delivered by Chevy Chase, as Servicer, to the Trustee pursuant to Section 4.10
of the Trust Agreement, the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section 4.11 of the Trust
Agreement and such other information concerning the Receivables, Chevy Chase
(including in its capacities as the Seller and Servicer) or the Certificates, as
the Representative may from time to time reasonably request.
On or before the Closing Date, Chevy Chase shall furnish or make available
to the Underwriters or its counsel such additional documents and information
regarding Chevy Chase (including in its capacities as the Seller and Servicer)
and its affairs as the Underwriters may from time to time reasonably request,
including any and all documentation reasonably requested in connection with
their due diligence efforts regarding information in the Prospectus and in order
to evidence the accuracy or completeness of any of the conditions contained in
this Agreement.
So long as any Certificate is outstanding, Chevy Chase shall furnish to the
Representative by first class mail as soon as practicable, (A) all documents
distributed, or caused to be distributed, by Chevy Chase to Certificateholders,
(B) all documents filed, or caused to be filed, by Chevy Chase with the
Commission relating to the Trust pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), (C) any order of the Commission under the
Exchange Act or pursuant to a "no action" letter from the staff of the
Commission relating to the Trust and (D) from time to time, such other
information in the possession of Chevy Chase concerning the Trust as the
Representative may reasonably request.
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Chevy Chase shall apply the net proceeds from the sale of the Certificates
in the manner set forth in the Prospectus Supplement.
If, between the date hereof or, if earlier, the dates as of which
information is given in the Prospectus and the Closing Date, to the knowledge of
Chevy Chase there shall have been any material change, or any development
involving a prospective material change in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
Chevy Chase, Chevy Chase will give prompt written notice thereof to the
Underwriters.
To the extent, if any, that any rating provided with respect to the
Certificates set forth in Section 6(k) hereof is conditional upon the furnishing
of documents reasonably available to Chevy Chase or the taking of any other
reasonable actions by Chevy Chase, Chevy Chase shall furnish such documents or
take any such other actions.
CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase the Certificates pursuant to this Agreement are subject
to the accuracy on and as of the Closing Date of the representations and
warranties on the part of Chevy Chase herein contained, to the accuracy of the
statements of officers of Chevy Chase made pursuant hereto, to the performance
by Chevy Chase of all of its obligations hereunder and to the following
conditions at the Closing Date:
The Representative shall have received a letter, dated the date of delivery
thereof (which, if the Effective Time is prior to the execution and delivery of
this Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time is subsequent to the execution and delivery of this Agreement,
shall be prior to the filing of the amendment or post-effective amendment to the
Registration Statement to be filed shortly prior to the Effective Time), from
Arthur Andersen LLP, in form and substance satisfactory to the Underwriters and
counsel for the Underwriters, confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that (i) they have performed
certain specified procedures as a result of which they have determined that
certain information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived from the
general accounting records of the Trust and Chevy Chase set forth in the
Registration Statement and the Prospectus), agrees with the accounting records
of the Trust and Chevy Chase, excluding any questions of legal interpretation,
and (ii) they have performed certain specified procedures with respect to the
computer programs used to select the Receivables and to generate information
with respect to the Receivables set forth in the Registration Statement and the
Prospectus.
For purposes of this subsection (a), if the Effective Time is subsequent to
the execution and delivery of this Agreement, "Registration Statement" shall
mean the registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to the Effective Time, and
"Prospectus" shall mean the prospectus included in such Registration Statement.
Financial statements included in material incorporated by reference into the
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Prospectus shall be deemed included in the Registration Statement for purposes
of this subsection (a).
If the Effective Time is not prior to the execution and delivery of this
Agreement, the Effective Time shall have occurred not later than 10:00 p.m., New
York time, on the date of this Agreement or such later date as shall have been
consented to by the Representative. If the Effective Time is prior to the
execution and delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations and Section 5
(a) of this Agreement.
The Registration Statement shall have been declared effective by the
Commission and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings therefor initiated
or threatened by the Commission, any price related information previously
omitted from the effective Registration Statement pursuant to Rule 430A under
the Act shall have been included in the Prospectus and transmitted to the
Commission for filing pursuant to Rule 424 under the Act within the prescribed
time period, and Chevy Chase shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment to the
Registration Statement providing such information shall have been promptly filed
with the Commission and declared effective in accordance with the requirements
of Rule 430A under the Act, and prior to the Closing Date, Chevy Chase shall
have provided evidence satisfactory to the Underwriters of such effectiveness
and there shall not have come to the attention of the Underwriters facts that
would cause the Underwriters to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of the Certificates, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
The Underwriters shall have received the favorable opinion, dated the
Closing Date, of Shaw, Pittman, Potts & Trowbridge, counsel to Chevy Chase, or
other counsel to Chevy Chase, acceptable to the Underwriters and their counsel,
addressed to the Underwriters and in form and scope satisfactory to the
Underwriters counsel, to the effect that:
Chevy Chase has been duly chartered and is validly existing as a federally
chartered stock savings bank under the laws of the United States of America and
has full corporate power and authority to own its properties and conduct its
business as described in the Prospectus; Chevy Chase has full corporate power
and authority to execute, deliver, and perform its obligations under this
Agreement, the Trust Agreement and the Indemnification Agreement and to cause
the Certificates to be issued and to consummate the transactions contemplated
hereby and thereby.
Chevy Chase has duly authorized and executed this Agreement, the Trust
Agreement and the Indemnification Agreement.
The execution, delivery and performance of this Agreement, the Trust
Agreement and the Indemnification Agreement, the transfer of the Receivables to
the Trust, the issuance and sale of the Certificates and the consummation of any
other of the transactions contemplated herein or in
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the Trust Agreement do not conflict with or result in a violation of (a) any law
or regulation of the United States of America or the State of New York or
Maryland (b) the Charter or By-laws of Chevy Chase, (c) any order, writ,
judgment or decree known to such counsel to which Chevy Chase is a party or is
subject or (d) result in any lien, charge or encumbrance upon any of the
properties or assets of Chevy Chase.
There are no actions, proceedings or investigations pending or threatened
before any court, administrative agency or other tribunal to which Chevy Chase
is a named party or to which its assets are subject (A) asserting the invalidity
of the Trust Agreement, the Indemnification Agreement, this Agreement or the
Certificates, (B) seeking to prevent the issuance of the Certificates or the
consummation by Chevy Chase of any of the transactions contemplated by the Trust
Agreement, the Indemnification Agreement, or this Agreement, (C) that might
adversely affect the validity or enforceability of the Trust Agreement, the
Indemnification Agreement, this Agreement or the Certificates, or (D) seeking to
adversely affect the federal income tax attributes of the Certificates as
described in the Prospectus Supplement under the heading "Certain Federal Income
Tax Consequences."
No filing or other action, except the filing of a Uniform Commercial Code
financing statement on Form UCC-1 with the Maryland State Department of
Assessments and Taxation naming Chevy Chase as "debtor" and the Trustee as
"secured party," is necessary to perfect the transfer of the Receivables and
proceeds (as defined in Section 9-306 of the Maryland Uniform Commercial Code)
thereof against the claims of creditors of, and transferees from, Chevy Chase.
Such security interest would be enforceable notwithstanding the insolvency of
Chevy Chase or a receivership or conservatorship of Chevy Chase in which the
FDIC is appointed a receiver or conservator for Chevy Chase.
The Receivables constitute "chattel paper" as defined in Section 9-105 of
the Uniform Commercial Code as in effect in the State of Maryland.
The Underwriters shall have received the favorable opinions of Dewey
Ballantine, special counsel to the Underwriters, dated the Closing Date,
addressed to the Underwriters and in form and scope satisfactory to the
Underwriters, to the effect that:
Assuming the due authorization and execution by Chevy Chase of this
Agreement, the Trust Agreement and the Indemnification Agreement, each such
agreement constitutes the valid, legal and binding obligation of Chevy Chase
enforceable against Chevy Chase in accordance with its terms.
The Certificates have been duly authorized and, when executed and
authenticated in accordance with the terms of the Trust Agreement and delivered
to and paid for by the Underwriters pursuant to this Agreement, will be duly and
validly issued and outstanding and will be entitled to the benefits of the Trust
Agreement.
The Registration Statement was declared effective under the Act as of the
date and time specified in such opinion, the Prospectus either was filed with
the Commission pursuant to the
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subparagraph of Rule 424 (b) specified in such opinion on the date specified
therein or was included in the Registration Statement (as the case may be), and,
to the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
instituted or is pending or contemplated under the Act, and the Registration
Statement and the Prospectus, and each amendment or supplement thereof, as of
their respective effective or issue dates, complies as to form in all material
respects with the requirements of the Act and the Rules and Regulations; such
counsel have no reason to believe that the Registration Statement or any
amendment thereto, as of its Effective Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Registration Statement as of the Closing Date, or the Prospectus, as of its
issue date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
opinion as to the financial statements or other financial data contained in the
Registration Statement or the Prospectus.
The conditions to the use by Chevy Chase of a registration statement on
Form S-3 under the Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Registration Statement and the
Prospectus. There are no contracts or documents of Chevy Chase which are
required to be filed as exhibits to the Registration Statement pursuant to the
Act or the Rules and Regulations thereunder which have not been so filed.
The Registration Statement at the time it became effective, and any
amendment thereto at the time such amendment became effective, complied as to
form in all material respects with the applicable requirements of the Act and
the Rules and Regulations.
The Trust Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended.
The Trust is not required to be registered under the 1940 Act, and
immediately following the issuance and sale of the Certificates in the manner
contemplated by the Trust Agreement and this Agreement, the Trust will not be
required to be so registered.
The Certificates, this Agreement, the Trust Agreement and the Certificate
Insurance Policy conform in all material respects to the respective descriptions
thereof in the Registration Statement and the Prospectus.
The statements in the Base Prospectus under the headings "RISK FACTORS --
Financial Institution Insolvency Risks," "CERTAIN LEGAL ASPECTS OF THE
RECEIVABLES," and in the Prospectus Supplement under the headings "SUMMARY OF
TERMS -- Certain Legal Aspects of the Receivables," "SUMMARY OF TERMS -- Certain
Federal Tax Considerations," "CERTAIN FEDERAL INCOME TAX CONSEQUENCES," and
"ERISA CONSIDERATIONS," to the extent that they constitute matters of law or
legal conclusions with
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respect thereto, have been prepared or reviewed by such counsel and are correct
in all material respects.
In addition, such counsel shall state that nothing has come to their
attention that would lead them to believe that the Registration Statement, at
the time it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus, as of its
date and as of the Closing Date, contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The Underwriters shall have received the favorable opinion of counsel to
the Trustee, dated the Closing Date, addressed to the Underwriters and in form
and scope satisfactory to the Underwriters' counsel, to the effect that:
The Trustee has duly authorized, executed and delivered the Trust
Agreement.
The Trustee has been duly organized and is validly existing as a national
banking corporation in good standing under the laws of the United States of
America and has full power and authority to execute and deliver the Trust
Agreement and to perform its obligations thereunder and such Agreement
constitutes the valid, legal and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms.
The Certificates have been duly executed and countersigned by the Trustee.
The execution and delivery by the Trustee of the Trust Agreement and the
performance by the Trustee of its duties thereunder do not conflict with or
result in a violation of (a) any law or regulation of the United States of
America or the State of Minnesota, (b) the charter or by-laws of the Trustee,
(c) any order, writ, judgment or decree or (d) any agreement, instrument, order,
writ, judgment or decree known to such counsel to which the Trustee is a party
or is subject.
No consent, approval or authorization of, or registration, declaration or
filing with, any court or governmental agency or body of the United States of
America or any state thereof is required for the execution, delivery or
performance by the Trustee of the Trust Agreement.
The Underwriters shall have received the favorable opinion or opinions,
dated the Closing Date, of the Underwriters' counsel, Dewey Ballantine, with
respect to the issuance and sale of the Certificates, the Registration
Statement, this Agreement, the Prospectus and such other related matters as the
Underwriters may require.
The Underwriters shall have received an opinion, dated the Closing Date, of
Shaw, Pittman, Potts & Trowbridge, counsel to Chevy Chase, addressed to, and
satisfactory to, Standard & Poor's Corporation ("S&P"), Moody's Investors
Service, Inc. ("Moody's"), Fitch
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Investors Service, Inc. ("Fitch"), the Underwriters and the Underwriters'
counsel, relating to the sale of the Receivables to the Trustee.
Chevy Chase shall have furnished to the Underwriters a certificate signed
on behalf of Chevy Chase by any two of the chairman of the board, the president,
any vice chairman of the board, any executive vice president, any senior vice
president, any vice president, the treasurer, or the controller of the Seller or
the Servicer, as appropriate, dated the Closing Date, as to (i) the accuracy of
the representations and warranties of Chevy Chase herein and in the Trust
Agreement at and as of the Closing Date, (ii) the performance by Chevy Chase of
all of its obligations hereunder to be performed at or prior to the Closing Date
and (iii) such other matters as the Underwriters may reasonably request.
The Trustee shall have furnished to the Underwriters a certificate of the
Trustee, signed by one or more duly authorized officers of the Trustee, dated
the Closing Date, as to the due acceptance of the Trust Agreement by the Trustee
and the due execution and delivery of the Certificates by the Trustee thereunder
and such other matters as the Underwriters shall reasonably request.
The Certificates shall have been rated "AAA" by S&P, "Aaa" by Moody's and
"AAA" by Fitch, and such ratings shall not have been rescinded.
The Underwriters shall have received from Arthur Andersen, or other
independent certified public accountants acceptable to the Underwriters, a
letter, dated as of the date of the Closing Date, delivered at such time in form
satisfactory to the Underwriters.
Prior to the Closing Date the Underwriters' counsel, Dewey Ballantine,
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Certificates as herein contemplated and related proceedings or
in order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by Chevy Chase in connection with the issuance and
sale of the Certificates as herein contemplated shall be satisfactory in form
and substance to the Underwriters and Dewey Ballantine.
Since the respective dates as of which information is given in the
Prospectus, there shall not have been any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of Chevy Chase or the
Certificate Insurer otherwise than as set forth in the Prospectus, the effect of
which is in the Underwriters' judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Certificates on the terms and in the manner contemplated in the
Prospectus or which, in the judgment of the Underwriters, materially impairs the
investment quality of the Certificates or the ability of the Servicer to service
the Receivables.
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Subsequent to the execution and delivery of this Agreement, there shall not
have occurred (i) any change, development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of Chevy Chase or its automobile loan business or the Certificate
Insurer which, in the judgment of the Underwriters, is material and adverse and
makes it impracticable or inadvisable to proceed with the completion of the
public offering or the sale of and payment for the Certificates, (ii) any
banking moratorium declared by Federal, New York, Minnesota or Maryland
authorities; or (iii) any downgrading in the rating of any securities of Chevy
Chase or the Certificate Insurer by any nationally recognized statistical rating
organization (as defined for purposes of Rule 436(g) under the Act) or any
public announcement that any such organization has under surveillance or review
its rating of any securities of Chevy Chase or the Certificate Insurer (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); or (iv) any suspension
or limitation of trading in securities generally on the New York Stock Exchange,
or any setting of minimum prices for trading on such exchange; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity, emergency or change in financial markets if, in the
Representative's judgment, the effect of any such outbreak, escalation,
declaration, calamity, emergency or change makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Certificates.
The Underwriters shall have received evidence satisfactory to the
Underwriters and its counsel that (i) on or before the Closing Date, UCC-1
financing statements have been filed in the offices of the Maryland State
Department of Assessments and Taxation, reflecting the interest of the Trust in
the Receivables and the proceeds thereof and (ii) the Trust will have a first
priority perfected security interest in the amounts on deposit from time to time
in the Reserve Account and the Yield Maintenance Account.
Chevy Chase will provide or cause to be provided to the Representative such
conformed copies of such opinions, certificates, letters and documents being
provided pursuant hereto and such further information, certificates and
documents as the Representative may reasonably request. The Representative may
in its sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder.
The Certificate Insurance Policy shall have been duly executed and issued
at or prior to the Closing Date and shall conform in all material respects to
the description thereof in the Prospectus.
The Underwriters shall have received the favorable opinion, dated the
Closing Date, of counsel for the Certificate Insurer, in form and scope
satisfactory to their counsel, to the effect that:
The Certificate Insurer is duly organized as a New York stock insurance
corporation and is validly existing under the laws of New York, and has the full
power and authority (corporate and other) to issue, and to take all action
required of it under, the Certificate Insurance Policy.
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The execution, delivery and performance by the Certificate Insurer of the
Certificate Insurance Policy has been duly authorized by all necessary corporate
action on the part of the Certificate Insurer.
The execution, delivery and performance by the Certificate Insurer of the
Certificate Insurance Policy does not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other action in
respect of any state or other governmental agency or authority which has not
previously been effected.
The Certificate Insurance Policy has been duly authorized, executed and
delivered by the Certificate Insurer and constitutes a legal, valid and binding
obligation of the Certificate Insurer, enforceable against the Certificate
Insurer in accordance with its terms (subject, as to enforcement, to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally and to general equity principles).
The Certificate Insurance Policy is not required to be registered under the
Securities Act.
The information set forth under the caption "The Certificate Insurance
Policy" in the Prospectus, insofar as such statements constitute a description
of the Certificate Insurance Policy, accurately summarizes the Certificate
Insurance Policy.
In rendering this opinion, such counsel may rely, as to matters of fact, on
certificates of responsible officers of the Certificate Insurer and public
officials. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the Certificate Insurer.
The Certificate Insurer shall have furnished to you and Chevy Chase a
certificate of the Certificate Insurer, signed by one or more duly authorized
officers of the Certificate Insurer, dated the Closing Date, certifying (i) the
information relating to the Certificate Insurer in the Prospectus is true and
correct in all material respects as of the dates specified therein, (ii) there
has been no change in the financial condition of the Certificate Insurer since
June 30, 1997 which could have a material adverse effect on the Certificate
Insurer's ability to meet its obligations under the Certificate Insurance Policy
and (iii) such other matters as the Underwriters may reasonably request.
The Certificate Insurance Policy shall have been issued by the Certificate
Insurer.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to Chevy Chase at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
PAYMENT OF EXPENSES. Chevy Chase agrees to pay all expenses incident to
the performance of its obligations under this Agreement, and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing fees and
other expenses (including fees and
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disbursements of counsel), including, without limitation, those related to (i)
the filing of the Registration Statement and all amendments thereto, (ii) the
duplication and delivery to the Underwriters, in such quantities as the
Underwriters may reasonably request, of copies of this Agreement, (iii) the
preparation, issuance and delivery of the Certificates and the determination of
their eligibility for investment under the laws of such jurisdictions as the
Representative designates, (iv) 50% of the fees and disbursements of Shaw,
Pittman, Potts & Trowbridge, counsel for Chevy Chase, 50% of the fees and
disbursements of Dewey Ballantine, counsel for the Underwriters and the fees and
disbursements of Arthur Andersen, accountants of Chevy Chase, (v) the
qualification of the Securities under securities and Blue Sky laws and the
determination of the eligibility of the Certificates for investment in
accordance with the provisions of Section 5(g), including filing fees and
disbursements and 50% of the fees of Dewey Ballantine in connection therewith
and in connection with the preparation of any Blue Sky Survey, (vi) the printing
and delivery to the Underwriters, in such quantities as the Underwriters may
reasonably request, of copies of the Registration Statement and Prospectus and
all amendments and supplements thereto, and of any Blue Sky Survey, (vii) the
filing fee of the National Association of Securities Dealers, Inc., (viii) the
duplication and delivery to the Underwriters in such quantities as the
Underwriters may reasonably request, of copies of the Trust Agreement, (ix) the
fees charged by nationally recognized statistical rating agencies for rating the
Certificates, (x) the fees and expenses of the Trustee and its counsel, and (xi)
the fees and expenses of the Certificate Insurer and its counsel. The
Underwriters agree to pay (i) 50% of the fees and disbursements of Dewey
Ballantine and Shaw, Pittman, Potts & Trowbridge and (ii) other expenses of
Chevy Chase relating to the transactions contemplated hereby in an amount equal
to $48,487.42.
INDEMNIFICATION. Chevy Chase agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls each Underwriter within the
meaning of the Act or the Exchange Act, as follows:
Chevy Chase will indemnify and hold harmless the Underwriters against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriters may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Prospectus, any related preliminary
prospectus or any amendment or supplement thereto, in the light of the
circumstances under which they were made) and will reimburse the Underwriters
for any legal or other expenses reasonably incurred by such Underwriters in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that Chevy
Chase will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to Chevy Chase by any Underwriters
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through the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriters consists of
the information described as such in subsection (b) below.
Each Underwriter will severally and not jointly indemnify and hold harmless
Chevy Chase against any losses, claims, damages or liabilities to which Chevy
Chase may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading (in the case of the Prospectus or any related Preliminary
Prospectus, in the light of the circumstances under which they were made), in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to Chevy Chase by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by Chevy Chase in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriters consists of
the following information in the Prospectus furnished on behalf of the
Underwriters: the last paragraph at the bottom of the cover page of the
Prospectus Supplement concerning the terms of the offering by the Underwriters,
the legend concerning overallotments and stabilizing on the inside front cover
page of the Prospectus Supplement and the concession and reallowance figures
appearing in the third paragraph under the caption "Underwriting" in the
Prospectus Supplement.
Promptly after receipt by an indemnified party under this Section of notice
of the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under subsection
(a) or (b) above, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action 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
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unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
CONTRIBUTION. If the indemnification provided for in Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) of Section 8 above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in such subsection (a)
or (b) (i) in such proportion as is appropriate to reflect the relative benefits
received by Chevy Chase on the one hand and each of the Underwriters on the
other from the offering of the Certificates or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of Chevy Chase on the one hand and each of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by Chevy Chase
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by Chevy Chase bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Chevy Chase or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 9 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this Section 9. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 9 to contribute
are several in proportion to their respective underwriting obligations and not
joint.
The obligations of Chevy Chase under Section 8 and this Section 9 shall be
in addition to any liability which Chevy Chase may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under Section 8 and this Section 9 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of Chevy Chase, to each
officer of Chevy Chase who has signed the Registration Statement and to each
person, if any, who controls Chevy Chase within the meaning of the Act.
Each Underwriter, with respect to the Certificates, agrees that it will not
prepare or distribute to any proposed purchaser of any Certificates any Derived
Information (as such term is hereinafter defined), unless it shall have provided
to the Servicer a copy of such Derived Information and a sufficient time prior
to its proposed distribution to permit the Servicer to
20
<PAGE>
review and comment upon such Derived Information, and such Underwriters shall
have obtained the prior written consent of the Servicer thereto following its
review. In addition, such Underwriters agree to provide the Servicer, no later
than the date on which the Prospectus is required to be filed pursuant to Rule
424, with a definitive copy of its Derived Information with respect to such
Certificates provided by the Underwriters for filing with the Commission on Form
8-K.
Each Underwriter agrees, severally and not jointly, assuming all Companies-
Provided Information (as such term is hereinafter defined) provided by Chevy
Chase is accurate and complete in all material respects, to indemnify and hold
harmless Chevy Chase, each of Chevy Chase's officers and directors and each
person who controls Chevy Chase within the meaning of the Act against any and
all losses, claims, damages or liabilities, joint or several, to which they
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement of a material fact contained in the Derived
Information provided by such Underwriters, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action as such
expenses are incurred. The obligations of the Underwriters under this Section 9
shall be in addition to any liability which the Underwriters may otherwise have.
For purposes of this Section 9, the term "Derived Information" means such
portion, if any, of the information delivered to Chevy Chase for filing with the
Commission on Form 8-K as:
. is not contained in the Prospectus without taking into account
information incorporated therein by reference;
. does not constitute Companies-Provided Information; and
. is not information provided by the Certificate Insurer.
. "Companies-Provided Information" means any computer tape furnished to
the Underwriters by Chevy Chase concerning the Receivables assigned to
the Trust.
Notwithstanding the provisions of Sections 8 and 9, the Underwriters shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Certificates underwritten by the Underwriters and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriters have otherwise been required to pay in respect of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section 9, each person, if any, who controls the Underwriters within the meaning
of the Act or the Exchange Act shall have the same rights to contribution as
each of the Underwriters, and
21
<PAGE>
each director of Chevy Chase, each officer of Chevy Chase who signed the
Registration Statement, and each person, if any, who controls Chevy Chase within
the meaning of the Act or the Exchange Act shall have the same rights to
contribution as Chevy Chase.
DEFAULT OF UNDERWRITERS. If any Underwriter defaults in its obligations to
purchase Certificates hereunder on the Closing Date and the aggregate principal
amount of Certificates that such defaulting Underwriter or Underwriters have
agreed but failed to purchase does not exceed 10% of the total principal amount
of Certificates that the Underwriters are obligated to purchase on such Closing
Date, the Representative may make arrangements satisfactory to Chevy Chase for
the purchase of such Certificates by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Certificates that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriters so default and the aggregate principal amount of Certificates
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Certificates that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative and
Chevy Chase for the purchase of such Certificates by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or Chevy Chase, except
as provided in Section 11. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of
Chevy Chase or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, Chevy Chase or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Certificates. If this Agreement is terminated or if for any
reason the purchase of the Certificates by the Underwriters is not consummated,
Chevy Chase and the Underwriters shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 7 and the respective obligations of
Chevy Chase and the Underwriters pursuant to Section 8 and 9 shall remain in
effect, and if any Certificates have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
and 6 shall also remain in effect. If the purchase of the Certificates by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 10 or the occurrence of any
event specified in clause (ii), (iv) or (v) of Section 6(o), Chevy Chase will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of Dewey Ballantine, Underwriters' counsel) reasonably incurred by
them in connection with the offering of the Certificates.
NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of
22
<PAGE>
telecommunication. Notices to the Representative shall be directed to the
address set forth on the first page hereof, or sent by facsimile machine which
produces an electronic confirmation of receipt to (212) 325-8259 attention: Nita
Sue Cherry. Notices to Chevy Chase shall be directed to Chevy Chase Bank,
F.S.B., 8401 Connecticut Avenue, Chevy Chase, Maryland 20815, or sent by
facsimile machine which produces an electronic confirmation of receipt to (301)
986-7401, attention: Stephen R. Halpin, Jr.
PARTIES. This Agreement shall inure to the benefit of and be binding upon
the Underwriters and Chevy Chase, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended nor shall it be construed
to give any person, firm or corporation, other than the parties hereto or
thereto and their respective successors and the controlling persons and officers
and directors referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and such
controlling persons and officers and directors and their heirs and legal
representatives (to the extent of their rights as specified herein and therein)
and except as provided above for the benefit of no other person, firm or
corporation. No purchaser of Certificates from the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
REPRESENTATIONS OF UNDERWRITERS. The Representative will act for the
several Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representative will
be binding upon all the Underwriters.
GOVERNING LAW AND TIME; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
CHEVY CHASE HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND
STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but together they shall constitute but
one instrument.
23
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and
Chevy Chase in accordance with its terms.
Very truly yours,
CHEVY CHASE BANK, F.S.B.
By: /s/ Mark A. Holles
--------------------------------
Mark A. Holles
Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
Credit Suisse First Boston Corporation
By: /s/ Nita Sue Cherry
------------------------------
Nita Sue Cherry
Director
24
<PAGE>
Schedule 1
<TABLE>
<CAPTION>
Principal
Underwriters Purchase Price Percentage Amount
<S> <C> <C> <C>
Proceeds to Chevy Chase (includes
accrued interest)
Credit Suisse First Boston Corporation 99.7500 64,651,671.10 64,556,848.65
Smith Barney Inc. 99.7500 64,649,000.00 64,554,181.47
J.P. Morgan Securities Inc. 99.7500 64,649,000.00 64,554,181.47
</TABLE>
25
<PAGE>
Exhibit 4.1
CHEVY CHASE BANK, F.S.B.,
Seller and Servicer
and
U.S. BANK NATIONAL ASSOCIATION doing business as
FIRST BANK NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT,
Dated as of September 1, 1997
$202,030,907.40
Chevy Chase Auto Receivables Trust 1997-3
6.20% Auto Receivables Backed Certificates, Class A
9.00% Auto Receivables Backed Certificates, Class B
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS........................................................1
SECTION 1.1 DEFINITIONS.......................................................1
SECTION 1.2 USAGE OF TERMS...................................................20
SECTION 1.3 CUT-OFF DATE AND RECORD DATE.....................................21
SECTION 1.4 SECTION REFERENCES...............................................21
SECTION 1.5 INTEREST CALCULATIONS............................................21
SECTION 1.6 ACTION BY OR CONSENT OF CERTIFICATEHOLDERS; ACTION
BY OR CONSENT OF CERTIFICATE INSURER.............................21
ARTICLE II CREATION OF THE TRUST; CONVEYANCE OF RECEIVABLES.................22
SECTION 2.1 CREATION OF TRUST................................................22
SECTION 2.2 CONVEYANCE OF RECEIVABLES........................................22
SECTION 2.3 ACCEPTANCE BY TRUSTEE............................................24
ARTICLE III THE RECEIVABLES..................................................24
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER.........................24
SECTION 3.2 REPURCHASE UPON BREACH...........................................28
SECTION 3.3 CUSTODY OF RECEIVABLE FILES......................................29
SECTION 3.4 DUTIES OF SERVICER AND SUB-SERVICER AS CUSTODIAN.................29
SECTION 3.5 INSTRUCTIONS; AUTHORITY TO ACT...................................30
SECTION 3.6 EFFECTIVE PERIOD AND TERMINATION.................................30
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES......................31
SECTION 4.1 DUTIES OF SERVICER...............................................31
SECTION 4.2 COLLECTION OF RECEIVABLE PAYMENTS................................32
SECTION 4.3 REALIZATION UPON RECEIVABLES.....................................33
SECTION 4.4 INSURANCE........................................................33
SECTION 4.5 MAINTENANCE OF SECURITY INTEREST IN FINANCED VEHICLES............33
SECTION 4.6 COVENANTS OF SERVICER............................................34
SECTION 4.7 PURCHASE OF RECEIVABLES UPON BREACH..............................37
SECTION 4.8 SERVICING FEE; ADDITIONAL FEES; INVESTMENT EARNINGS..............37
SECTION 4.9 SERVICER'S CERTIFICATE...........................................38
SECTION 4.10 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT............38
SECTION 4.11 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
REPORT..........................................................39
SECTION 4.12 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES.....................................................39
SECTION 4.13 SERVICER EXPENSES...............................................39
SECTION 4.14 REPORTS TO CERTIFICATEHOLDERS...................................40
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE V DISTRIBUTIONS; STATEMENTS TO CERTIFICATEHOLDERS....................40
SECTION 5.1 ESTABLISHMENT OF ACCOUNTS........................................40
SECTION 5.2 COLLECTIONS......................................................42
SECTION 5.3 PURCHASE AMOUNTS.................................................43
SECTION 5.4 DISTRIBUTIONS....................................................43
SECTION 5.5 CERTIFICATE INSURANCE POLICY.....................................46
SECTION 5.6 RESERVE ACCOUNT AND YIELD MAINTENANCE ACCOUNT....................48
SECTION 5.7 STATEMENTS TO CERTIFICATEHOLDERS.................................50
ARTICLE VI THE CERTIFICATES..................................................52
SECTION 6.1 THE CERTIFICATES.................................................52
SECTION 6.2 AUTHENTICATION OF CERTIFICATES...................................53
SECTION 6.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES............53
SECTION 6.4 MUTILATED, DESTROYED, LOST, OR STOLEN CERTIFICATES...............55
SECTION 6.5 PERSONS DEEMED OWNERS............................................55
SECTION 6.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESS..........56
SECTION 6.7 MAINTENANCE OF OFFICE OR AGENCY..................................56
SECTION 6.8 BOOK-ENTRY CERTIFICATES..........................................56
SECTION 6.9 NOTICES TO CLEARING AGENCY.......................................57
SECTION 6.10 DEFINITIVE CERTIFICATES.........................................57
SECTION 6.11 INITIAL ISSUANCE................................................58
ARTICLE VII THE SELLER.......................................................58
SECTION 7.1 REPRESENTATIONS OF SELLER........................................58
SECTION 7.2 LIABILITY OF SELLER..............................................60
SECTION 7.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF
THE SELLER.......................................................60
SECTION 7.4 LIMITATION ON LIABILITY OF CERTAIN PERSONS OF SELLER.............61
ARTICLE VIII THE SERVICER....................................................61
SECTION 8.1 REPRESENTATIONS OF SERVICER......................................61
SECTION 8.2 LIABILITIES OF SERVICER, INDEMNITIES.............................63
SECTION 8.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF
THE SERVICER.....................................................65
SECTION 8.4 LIMITATION ON LIABILITY OF CERTAIN PERSONS OF SERVICER...........65
SECTION 8.5 SERVICER NOT TO RESIGN...........................................66
SECTION 8.6 DELEGATION OF DUTIES.............................................66
ARTICLE IX DEFAULT..........................................................67
SECTION 9.1 SERVICER DEFAULT.................................................67
SECTION 9.2 APPOINTMENT OF SUCCESSOR.........................................68
SECTION 9.3 NOTIFICATION TO CERTIFICATEHOLDERS...............................69
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 9.4 WAIVER OF PAST DEFAULTS..........................................69
SECTION 9.5 EFFECT OF SERVICER DEFAULT ON SUB-SERVICER.......................70
ARTICLE X THE TRUSTEE.......................................................70
SECTION 10.1 DUTIES OF TRUSTEE...............................................70
SECTION 10.2 TRUSTEE'S CERTIFICATE...........................................72
SECTION 10.3 TRUSTEE'S ASSIGNMENT OF PURCHASED RECEIVABLES...................72
SECTION 10.4 CERTAIN MATTERS AFFECTING THE TRUSTEE...........................72
SECTION 10.5 TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES..............74
SECTION 10.6 TRUSTEE MAY OWN CERTIFICATES....................................75
SECTION 10.7 TRUSTEE'S FEES..................................................75
SECTION 10.8 ELIGIBILITY REQUIREMENTS FOR TRUSTEE............................75
SECTION 10.9 RESIGNATION OR REMOVAL OF TRUSTEE...............................75
SECTION 10.10 SUCCESSOR TRUSTEE..............................................76
SECTION 10.11 MERGER OR CONSOLIDATION OF TRUSTEE.............................76
SECTION 10.12 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE..................77
SECTION 10.13 REPRESENTATIONS AND WARRANTIES OF TRUSTEE......................78
SECTION 10.14 TAX RETURNS....................................................79
ARTICLE XI TERMINATION......................................................79
SECTION 11.1 TERMINATION OF THE TRUST........................................79
SECTION 11.2 OPTIONAL PURCHASE OF ALL RECEIVABLES............................80
ARTICLE XII MISCELLANEOUS PROVISIONS........................................81
SECTION 12.1 AMENDMENT.......................................................81
SECTION 12.2 PROTECTION OF TITLE TO TRUST....................................82
SECTION 12.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS......................84
SECTION 12.4 GOVERNING LAW...................................................85
SECTION 12.5 NOTICES.........................................................85
SECTION 12.6 SEVERABILITY OF PROVISIONS......................................85
SECTION 12.7 ASSIGNMENT......................................................85
SECTION 12.8 CERTIFICATES NONASSESSABLE AND FULLY PAID.......................86
SECTION 12.9 COUNTERPARTS....................................................86
SECTION 12.10 BENEFITS OF AGREEMENT..........................................86
SECTION 12.11 TAX TREATMENT..................................................86
</TABLE>
EXHIBITS
Exhibit A Schedule of Receivables
Exhibit B-1 Form of Class A Certificate
Exhibit B-2 Form of Class B Certificate
Exhibit C Form of Trustee's Certificate (assignment to Seller)
iii
<PAGE>
Exhibit D Form of Trustee's Certificate (assignment to Servicer)
Exhibit E Form of Servicer's Certificate
Exhibit F List of Designated Loans
Exhibit G Form of Representation Letter
iv
<PAGE>
This POOLING AND SERVICING AGREEMENT dated as of September 1, 1997, is made
with respect to the formation of the Chevy Chase Auto Receivables Trust 1997-3,
among CHEVY CHASE BANK, F.S.B., a federally chartered stock savings bank, as
seller and servicer (the "Seller" or the "Servicer" in its respective capacities
as such), and U.S. BANK NATIONAL ASSOCIATION, doing business as First Bank
National Association, as trustee (the "Trustee").
WITNESSETH THAT: In consideration of the premises and of the mutual
agreements herein contained, the parties hereto hereby 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:
"ACCOUNT" means any of the Collection Account, the Certificate
Account, the Yield Maintenance Account and the Reserve Account.
"ADDITIONAL FEES" means any late fees, prepayment charges, extension
fees or other administrative fees or similar charges allowed by applicable law
with respect to the Receivables and collected by the Servicer.
"ADJUSTED POOL BALANCE" means, with respect to any date of
determination, the aggregate of the Principal Balance of each Receivable as of
the Cut-Off Date minus payments received by the Servicer on or before such date
of determination allocable to principal of the Receivables.
"AGREEMENT" or "POOLING AND SERVICING AGREEMENT" means this Pooling
and Servicing Agreement with respect to the Chevy Chase Auto Receivables Trust
1997-3, among the Seller, the Servicer and the Trustee, as the same may be
amended or supplemented from time to time.
"AMOUNT FINANCED", with respect to a Receivable, means the aggregate
amount advanced under such Receivable toward the purchase price of the related
Financed Vehicle and any related costs, except with respect to Receivables
originated through applications submitted by Obligors directly to the Seller,
exclusive of the amount allocable to the premium of credit life, disability or
hospitalization insurance covering the Financed Vehicle or the Obligor.
"ANNUAL PERCENTAGE RATE" or "APR" of a Receivable means the annual
interest rate stated in the Receivable.
1
<PAGE>
"APR": see "Annual Percentage Rate."
"AVAILABLE FUNDS" means, with respect to a Distribution Date, for the
related Determination Date, any and all amounts then held in the Collection
Account and deposited therein with respect to the Receivables during or
otherwise with respect to the related Collection Period (other than amounts
representing the Monthly Servicing Fee and any Liquidation Expenses for such
Collection Period), together with amounts to be transferred from the Yield
Maintenance Account to the Certificate Account with respect to such Distribution
Date. Available Funds does not include amounts, if any, on deposit in or
withdrawn from the Reserve Account or any amounts paid by the Certificate
Insurer under the Certificate Insurance Policy and does not include any amounts
that cannot be distributed to the Certificateholders by the Trustee as a result
of proceedings under the United States Bankruptcy Code.
"BALLOON PAYMENT" means, with respect to a Balloon Receivable, the
payment to be made by the Obligor on the stated maturity date of such Balloon
Receivable.
"BALLOON RECEIVABLE" means any Receivable that on the date of
origination provided for scheduled monthly payments in level amounts
substantially lower than the amount of the final scheduled payment.
"BOOK-ENTRY CERTIFICATES" means beneficial interests in the
Definitive Certificate described in Section 6.8, the ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 6.8.
"BUSINESS DAY" means, unless otherwise specified in this Agreement,
any day other than a Saturday, a Sunday, or a day on which banking institutions
in New York City, Chevy Chase, Maryland or the city in which the Corporate Trust
Office of the Trustee or the Certificate Insurer is located are authorized or
obligated by law or executive order to close.
"CERTIFICATE" means a Class A Certificate or a Class B Certificate,
and "CERTIFICATES" means the Class A Certificates and the Class B Certificates.
"CERTIFICATE ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.1.
"CERTIFICATEHOLDER" or "HOLDER" means the Person in whose name the
respective Certificate shall be registered in the Certificate Register.
"CERTIFICATE INSURANCE POLICY" means the certificate guaranty
insurance policy number 24823, issued by the Certificate Insurer to the Trustee
for the benefit of the Class A Certificateholders.
"CERTIFICATE INSURER" means MBIA Insurance Corporation, a New York
stock insurance corporation, and any successor thereto.
2
<PAGE>
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a direct or
indirect Clearing Agency Participant.
"CERTIFICATE PRINCIPAL BALANCE" means, with respect to any date of
determination, the sum of the Class A Certificate Principal Balance and the
Class B Certificate Principal Balance on such date.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the register
maintained and the registrar appointed pursuant to Section 6.3.
"CLAIM DATE" shall have the meaning specified in Section 5.5(b).
"CLASS" means all Certificates whose form is identical except for
variations in denomination, principal amount, owner or date of authentication.
"CLASS A CERTIFICATE PRINCIPAL BALANCE" means, with respect to any
Distribution Date, the Original Class A Certificate Principal Balance minus all
amounts previously distributed to Class A Certificateholders and allocable to
principal; provided that after the Class B Certificate Principal Balance has
been reduced to zero, the Class A Certificate Principal Balance with respect to
any Distribution Date will be equal to the Pool Balance as of the last day of
the related Collection Period.
"CLASS A CERTIFICATEHOLDERS" means the Holders of the Class A
Certificates.
"CLASS A CERTIFICATES" means any one of the Certificates executed as
provided in Section 6.1 and authenticated by the Trustee in substantially the
form attached hereto as Exhibit B-1.
"CLASS A INTEREST CARRYOVER SHORTFALL" means, with respect to any
Distribution Date, the excess, if any, of (x) the Class A Monthly Interest for
such Distribution Date and any unpaid Class A Interest Carryover Shortfall from
the immediately preceding Distribution Date plus interest on such unpaid Class A
Interest Carryover Shortfall, to the extent permitted by law, at the Class A
Pass-Through Rate, from such immediately preceding Distribution Date through but
not including the current Distribution Date, over (y) the amount distributed to
the Class A Certificateholders in respect of such Class A Monthly Interest and
unpaid Class A Interest Carryover Shortfall on such Distribution Date.
"CLASS A INTEREST INSUFFICIENCY AMOUNT" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class A Monthly
Interest and any unpaid Class A Interest Carryover Shortfall for such
Distribution Date exceeds the Available Funds available for the payment of such
Class A Monthly Interest and unpaid Class A Interest Carryover Shortfall as of
such Distribution Date.
3
<PAGE>
"CLASS A MONTHLY INTEREST" means, for any Distribution Date, one-
twelfth of the product of the Class A Pass-Through Rate and the Class A
Certificate Principal Balance as of the immediately preceding Distribution Date
(after giving effect to distributions of principal made on such immediately
preceding Distribution Date), or, in the case of the first Distribution Date,
the Original Class A Certificate Principal Balance.
"CLASS A MONTHLY PRINCIPAL" means, for any Distribution Date, the
product of (i) the excess of (x) the aggregate unpaid Principal Balances of the
Receivables on the last day of the second preceding Collection Period (or, in
the case of the first Distribution Date, the Original Certificate Principal
Balance) over (y) the aggregate unpaid Principal Balances of the Receivables on
the last day of the preceding Collection Period times (ii) the Class A
Percentage; provided, however, that Class A Monthly Principal on the Final
Scheduled Distribution Date will equal the Class A Certificate Principal Balance
on such date. For the purpose of determining Class A Monthly Principal, the
unpaid Principal Balance of a Defaulted Receivable or a Purchased Receivable is
deemed to be zero on and after the last day of the Collection Period in which
such Receivable became a Defaulted Receivable or a Purchased Receivable. In no
event shall the Class A Monthly Principal to be distributed to Class A
Certificateholders exceed the Class A Unpaid Balance.
"CLASS A PASS-THROUGH RATE" means 6.20% per annum.
"CLASS A PERCENTAGE" means 96.0%.
"CLASS A POOL FACTOR" means, with respect to any Distribution Date, a
seven digit decimal figure (rounded to the nearest one millionth with 5 ten
millionths being rounded up) equal to the Class A Certificate Principal Balance
as of the close of business on such Distribution Date divided by the Original
Class A Certificate Principal Balance.
"CLASS A PRINCIPAL CARRYOVER SHORTFALL" means, with respect to any
Distribution Date, the excess, if any, of (x) the Class A Monthly Principal for
such Distribution Date and any unpaid Class A Principal Carryover Shortfall from
the immediately preceding Distribution Date over (y) the amount actually
distributed to the holders of the Class A Certificates in respect of such Class
A Monthly Principal and unpaid Class A Principal Carryover Shortfall on such
Distribution Date.
"CLASS A PRINCIPAL INSUFFICIENCY AMOUNT" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class A Monthly
Principal and any unpaid Class A Principal Carryover Shortfall for such
Distribution Date exceeds the Available Funds available for the payment of such
Class A Monthly Principal and unpaid Class A Principal Carryover Shortfall as of
such Distribution Date.
"CLASS A UNPAID BALANCE" means, as of any date of determination, the
Original Class A Certificate Principal Balance reduced by all amounts
distributed on or prior to such date to Class A Certificateholders and allocable
to principal.
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"CLASS B CERTIFICATE PRINCIPAL BALANCE" means, initially, the
Original Class B Certificate Principal Balance and on each Distribution Date
thereafter, an amount equal to the Pool Balance as of the last day of the
related Collection Period less the Class A Certificate Principal Balance as of
the close of business on such Distribution Date (after giving effect to all
distributions in respect of principal to Class A Certificateholders and all
other deposits or withdrawals required to be made on such Distribution Date).
"CLASS B CERTIFICATEHOLDERS" means the Holders of the Class B
Certificates.
"CLASS B CERTIFICATES" means any one of the Certificates executed as
provided in Section 6.1 and authenticated by the Trustee in substantially the
form attached hereto as Exhibit B-2.
"CLASS B DEFICIENCY INTEREST CARRYOVER SHORTFALL" with respect to any
Distribution Date will equal the excess, if any, of (x) the Class B Monthly
Deficiency Interest for such Distribution Date and any unpaid Class B Deficiency
Interest Carryover Shortfall from the immediately preceding Distribution Date,
plus interest on such unpaid Class B Deficiency Interest Carryover Shortfall, to
the extent permitted by law, at the Class B Pass-Through Rate, from such
immediately preceding Distribution Date through but not including the current
Distribution Date, over (y) the amount distributed to the Class B
Certificateholders in respect of such Class B Monthly Deficiency Interest and
unpaid Class B Deficiency Interest Carryover Shortfall on such Distribution
Date.
"CLASS B INTEREST CARRYOVER SHORTFALL" means, with respect to any
Distribution Date, the excess, if any, of (x) the Class B Monthly Interest for
such Distribution Date and any unpaid Class B Interest Carryover Shortfall from
the immediately preceding Distribution Date, plus interest on such unpaid Class
B Interest Carryover Shortfall, to the extent permitted by law, at the Class B
Pass-Through Rate, from such immediately preceding Distribution Date through but
not including the current Distribution Date, over (y) the amount distributed to
the Class B Certificateholders in respect of such Class B Monthly Interest and
unpaid Class B Interest Carryover Shortfall on such Distribution Date.
"CLASS B INTEREST INSUFFICIENCY AMOUNT" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class B Monthly
Interest and any unpaid Class B Interest Carryover Shortfall for such
Distribution Date exceeds the Available Funds available for the payment of such
Class B Monthly Interest and unpaid Class B Interest Carryover Shortfall as of
such Distribution Date.
"CLASS B MONTHLY DEFICIENCY INTEREST" for any Distribution Date will
equal one-twelfth of the product of the Class B Pass-Through Rate and the excess
of (x) the Class B Unpaid Balance over (y) the Class B Certificate Principal
Balance, each as of the immediately preceding Distribution Date (after giving
effect to distributions of principal made on
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such immediately preceding Distribution Date), or, in the case of the first
Distribution Date, will equal zero.
"CLASS B MONTHLY INTEREST" means, for any Distribution Date, one-
twelfth of the product of the Class B Pass-Through Rate and the Class B
Certificate Principal Balance as of the immediately preceding Distribution Date
(after giving effect to distributions of principal made on such immediately
preceding Distribution Date), or, in the case of the first Distribution Date,
the Original Class B Certificate Principal Balance.
"CLASS B MONTHLY PRINCIPAL" means, for any Distribution Date, the
product of (i) the excess of (x) the aggregate unpaid Principal Balances of the
Receivables on the last day of the second preceding Collection Period (or, in
the case of the first Distribution Date, the Original Certificate Principal
Balance) over (y) the aggregate unpaid Principal Balances of the Receivables on
the last day of the preceding Collection Period times (ii) the Class B
Percentage; provided, however, that Class B Monthly Principal on the Final
Scheduled Distribution Date will equal the Class B Certificate Principal Balance
on such date. For the purpose of determining Class B Monthly Principal, the
unpaid Principal Balance of a Defaulted Receivable or a Purchased Receivable is
deemed to be zero on and after the last day of the Collection Period in which
such Receivable became a Defaulted Receivable or a Purchased Receivable. In no
event shall the Class B Monthly Principal to be distributed to Class B
Certificateholders exceed the Class B Unpaid Balance.
"CLASS B PASS-THROUGH RATE" means 9.00% per annum.
"CLASS B PERCENTAGE" means 4.0%.
"CLASS B POOL FACTOR" means, with respect to any Distribution Date, a
seven digit decimal figure (rounded to the nearest one millionth with 5 ten
millionths being rounded up) equal to the Class B Certificate Principal Balance
as of the close of business on such Distribution Date divided by the Original
Class B Certificate Principal Balance.
"CLASS B PRINCIPAL CARRYOVER SHORTFALL" means, with respect to any
Distribution Date, the excess, if any, of (x) the Class B Monthly Principal for
such Distribution Date and any unpaid Class B Principal Carryover Shortfall from
the immediately preceding Distribution Date over (y) the amount actually
distributed to the holders of the Class B Certificates in respect of such Class
B Monthly Principal and unpaid Class B Principal Carryover Shortfall on such
Distribution Date.
"CLASS B PRINCIPAL INSUFFICIENCY AMOUNT" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class B Monthly
Principal and any unpaid Class B Principal Carryover Shortfall for such
Distribution Date exceeds the Available Funds available for the payment of such
Class B Monthly Principal and unpaid Class B Principal Carryover Shortfall as of
such Distribution Date.
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"CLASS B RESERVE ACCOUNT INVESTMENT EARNINGS" with respect to any
Distribution Date will mean the investment earnings on the Reserve Account (net
of investment expenses and losses) for such Distribution Date multiplied by the
percentage equivalent of a fraction, the numerator of which is equal to the
Class B Retained Principal on the immediately preceding Distribution Date and
the denominator of which is equal to the balance in the Reserve Account on such
immediately preceding Distribution Date, in each case after giving effect to all
deposits to and withdrawals from the Reserve Account required to be made on such
preceding Distribution Date.
"CLASS B RETAINED PRINCIPAL" for any Distribution Date will equal the
amount then on deposit in the Reserve Account representing amounts that would
have been distributable in respect of the Class B Certificates pursuant to
clause (viii) of Section 5.4(a) if, on such Distribution Date or any prior
Distribution Date, no deposit to the Reserve Account pursuant to clause (vii) of
Section 5.4(a) had been required, and that has been deposited into the Reserve
Account, after giving effect to all deposits to and withdrawals from the Reserve
Account (and all releases of amounts in excess of the Specified Reserve Balance
that are paid to the Class B Certificateholders in respect of Class B Retained
Principal pursuant to Section 5.6(a)) required to be made on such Distribution
Date.
"CLASS B UNPAID BALANCE" means, with respect to any date of
determination, the Original Class B Certificate Principal Balance reduced by all
amounts distributed on or prior to such date to Class B Certificateholders and
allocable to principal (after giving effect to all distributions in respect of
principal on or prior to such date); for purposes of the foregoing, the Class B
Retained Principal on deposit in the Reserve Account shall be deemed not to have
been distributed.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. 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 and pledges of securities deposited with the
Clearing Agency.
"CLOSING DATE" means September 26, 1997.
"CODE" means the Internal Revenue Code of 1986, as it may be amended
from time to time, or any successor statute thereto, and applicable temporary or
final regulations of the U.S. Department of the Treasury promulgated thereunder.
"COLLATERAL INSURANCE" shall have the meaning specified in
Section 4.4(b).
"COLLECTION ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.1.
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"COLLECTION PERIOD" means (i) initially, the period from and including
the Cut-Off Date through and including the last day of the calendar month in
which the Cut-Off Date occurs and (ii) thereafter, each calendar month until the
Trust shall terminate pursuant to Article XI.
"COMPENSATING INTEREST" shall have the meaning specified in Section
5.6(e).
"CORPORATE TRUST OFFICE" at the date hereof, is located at 180 East
5th Street, St. Paul, Minnesota, 55101, Attention: Structured Finance; the
telecopy number for the Corporate Trust Office on the date of the execution of
this Agreement is (612) 244-0089.
"CUT-OFF DATE" means September 1, 1997.
"DEALER" means the seller of a Financed Vehicle who arranged for a
sales contract or loan from a Lender to the purchaser of a Financed Vehicle
under an existing agreement with such Lender.
"DEFAULTED RECEIVABLE" means, with respect to any Distribution Date, a
Receivable (other than a Purchased Receivable) as to which the earlier of the
following has occurred: (i) a scheduled payment is 180 days contractually
delinquent as of the end of the most recently completed Collection Period (or,
with respect to a Receivable which the Servicer has determined to be either a
"skip" or a bankruptcy, such longer period of delinquency as may be permitted by
the Certificate Insurer) or (ii) the Servicer has determined in accordance with
its customary servicing practices, during the Collection Period preceding such
Distribution Date, that eventual payment in full of the Amount Financed is
unlikely.
"DEFICIENCY AMOUNT" shall have the meaning specified in Section
5.5(b).
"DEFINITIVE CERTIFICATES" shall have the meaning specified in Section
6.8.
"DELINQUENCY PERCENTAGE" means, with respect to any Distribution Date,
the fraction, expressed as a percentage, equal to (x) the aggregate Principal
Balances of all Receivables 30 or more days delinquent (including any
Receivables relating to repossessed Financed Vehicles held in the Servicer's
inventory regardless of when repossessed, but exclusive of any Defaulted
Receivables) as of the last day of the related Collection Period divided by (y)
the Pool Balance as of such date.
"DELIVERY" when used with respect to any Eligible Investments means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC and are susceptible of
physical delivery, transfer thereof by physical delivery to the Trustee endorsed
to, or registered in the name of, the Trustee or its nominee or endorsed in
blank, and, with respect to a certificated security (as defined in Section
8-102(4) of
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the UCC) transfer thereof (i) by the acquisition of possession by the Trustee of
the "security certificate" (as defined in 8-102(16) of the UCC), or (ii) the
Trustee or some person other than a "securities intermediary" (as defined in 8-
102(14) of the UCC), either acquires possession of the security certificate on
behalf of the Trustee or, having previously acquired possession of the
certificate, acknowledges that it holds for the Trustee, or (iii) a securities
intermediary acting on behalf of the Trustee acquires possession of the security
certificate, only if the certificate is in "registered form" (as defined in 8-
102(13) of the UCC) and has been specially indorsed to the Trustee by an
effective "indorsement" (as defined in 8-102(11) of the UCC) (all of the
foregoing "Physical Property") and, in any event, any such Physical Property in
registered form shall be in the name of the Trustee or its nominee or custodian,
and such additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of or a security
interest in any such Eligible Investment to the Trustee, consistent with changes
in applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the Federal
Home Loan Mortgage Corporation or the Federal National Mortgage Association that
is a book-entry security held through the Federal Reserve System pursuant to
federal book-entry regulations, the following procedures, all in accordance with
applicable law, including applicable federal regulations and Articles 8 and 9 of
the UCC: book-entry registration of such Eligible Investment to an appropriate
Participant's Securities Account (as defined in such applicable federal
regulations) maintained with a Federal Reserve Bank by a financial intermediary
which is also a "Participant" pursuant to applicable federal regulations and
issuance by such financial intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Trustee of the purchase by
the Trustee of such book-entry securities; the making by such financial
intermediary of entries in its books and records identifying such book-entry
security held through the Federal Reserve System pursuant to federal book-entry
regulations as belonging to the Trustee and as having been credited to a
securities account in the name of the Trustee and indicating that such financial
intermediary holds such Eligible Investment solely as agent for the Trustee; and
(c) with respect to any Eligible Investment that is an uncertificated
security under Article 8 of the UCC and that is not governed by clause (b)
above, (i) registration by the issuer of the Trustee as the registered owner,
upon original issue or registration or transfer, or (ii) another person, other
than a securities intermediary, either becomes the registered owner of the
uncertificated security on behalf of the Trustee or, having previously become
the registered owner, acknowledges that it holds for the Trustee; and such
additional or alternative procedures as may be or hereafter become requisite or
appropriate to effect complete transfer of ownership of or a security interest
in any such Eligible Investment to the Trustee, consistent with changes in
applicable law or regulations or the interpretation thereof.
"DEPOSIT DATE" means, with respect to any Distribution Date,
the Business Day immediately preceding such Distribution Date.
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"DESIGNATED LOANS" means any Receivable with an APR below the
Required Rate, as listed on Exhibit F.
"DESIGNATED LOAN REQUIRED AMOUNT" means, with respect to any
Distribution Date, and with respect to each Designated Loan held by the Trust as
of the opening of business on the first day of the Collection Period in which
such Distribution Date occurs, the sum, for such Collection Period and each
future Collection Period (assuming that such Designated Loan amortizes in
accordance with its terms) of the products of (x) one-twelfth, (y) such
Designated Loan's principal balance as of the opening of business on the first
day of such Collection Period and all future Collection Periods, assuming that
such Designated Loan amortizes according to its terms and (z) the excess of (i)
the Required Rate over (ii) such Designated Loan's APR.
"DETERMINATION DATE" means the earlier of the thirteenth
Business Day or the sixteenth calendar day of the month (or, if such sixteenth
calendar day is not a Business Day, the Business Day preceding the sixteenth
calendar day of the month).
"DISTRIBUTION DATE" means, with respect to each Collection
Period, the twentieth day of the following month, or if the twentieth day shall
not be a Business Day, the next following Business Day, commencing October 20,
1997.
"ELIGIBLE ACCOUNT" means either (a) a segregated account with
an Eligible Bank or (b) a segregated trust account with the corporate trust
department of a depository institution with corporate trust powers organized
under the laws of the United States of America or any state thereof or the
District of Columbia (or any United States branch of a foreign bank) and whose
deposits are insured by the FDIC, provided that such institution must have a net
worth in excess of $50,000,000 and must have a rating of Baa3 or higher from
Moody's and a rating of BBB- or higher from Standard & Poor's with respect to
long-term deposit obligations. The Trustee shall give notice to the Servicer and
to the Certificate Insurer of any change in location of any Eligible Account.
"ELIGIBLE BANK" shall mean a depository institution organized
under the laws of the United States or any one of the states thereof, including
the District of Columbia (or any United States branch or agency of a foreign
bank) having corporate trust powers and acting as a trustee for funds deposited
in such account, which is subject to supervision and examination by federal or
state banking authorities, the deposits of which are insured by the Federal
Deposit Insurance Corporation ("FDIC") and which at all times (a) has a net
worth in excess of $50,000,000 and (b) has either (x) a long-term unsecured debt
rating of at least A2 by Moody's and AA by Standard & Poor's or (y) a short-term
certificate of deposit rating of P-1 by Moody's and A-1+ by Standard & Poor's.
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"ELIGIBLE INVESTMENT" means any of the following:
(i) Direct obligations of the United States of America and
securities fully and unconditionally guaranteed as to the timely
payment of principal and interest by the United States of America;
provided, that the full faith and credit of the United States of
America must be pledged to any such direct obligation or guarantee
("Direct Obligations");
(ii) Direct Obligations and fully guaranteed certificates of
beneficial interest of the Export-Import Bank of the United States;
consolidated debt obligations and letter of credit-backed issues of the
Federal Home Loan Banks; participation certificates and senior debt
obligations of the Federal Home Loan Mortgage Corporation ("FHLMCs");
debentures of the Federal Housing Administration; mortgage-backed
securities (except stripped mortgage securities which are valued
greater than par on the portion of unpaid principal) and senior debt
obligations of the Federal National Mortgage Association ("FNMAs");
participation certificates of the General Services Administration;
guaranteed mortgage backed securities and guaranteed participation
certificates of the Government National Mortgage Association ("GNMAs");
guaranteed participation certificates and guaranteed pool certificates
of the Small Business Administration; debt obligations and letter of
credit-backed issues of the Student Loan Marketing Association; local
authority bonds of the U.S. Department of Housing & Urban Development;
guaranteed Title XI financings of the U.S. Maritime Administration;
guaranteed transit bonds of the Washington Metropolitan Area Transit
Authority; and Resolution Funding Corporation securities; all of the
foregoing rated, at the time of purchase, "P-1" or "A2" or better by
Moody's and, if rated by Fitch, "F-1" or better by Fitch;
(iii) Direct obligations of any state of the United States of
America or any subdivision or agency thereof whose unsecured, uninsured
and unguaranteed general obligation debt is rated, at the time of
purchase "A2" or better by Moody's and "A" or better by Standard &
Poor's and "A" or better if rated by Fitch, or any obligation fully and
unconditionally guaranteed by any state, subdivision or agency whose
unsecured, uninsured and unguaranteed general obligation debt is rated,
at the time of purchase, "A2" or better by Moody's and "A" or better by
Standard & Poor's and, if rated by Fitch, "A" or better by Fitch;
(iv) Commercial paper (having original maturities of not more
than 270 days) rated, at the time of purchase, "P-1" by Moody's and "A-
1" or better by Standard & Poor's and, if rated by Fitch, F-1 or better
by Fitch;
(v) Federal funds, unsecured certificates of deposit, time
deposits or bankers acceptances (in each case having maturities of not
more than 365 days) of any domestic bank including a branch office of a
foreign bank which branch office is located in the United States,
provided legal opinions are received to the effect that full and timely
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payment of such deposit or similar obligation is enforceable against
the principal office or any branch of such bank, which, at the time of
purchase, has a short-term "Bank Deposit" rating of "P-1" by Moody's
and a "Short-Term CD" rating of "A-1" or better by Standard & Poor's
and further provided that the bank is subject to the supervision and
examination of federal and state banking authorities.
(vi) Deposits of any bank or savings and loan association
which has combined capital, surplus and undivided profits of not less
than $3 million, provided such deposits are continuously and fully
insured by the Bank Insurance Fund or the Savings Association Insurance
Fund of the FDIC;
(vii) Investments in money-market funds rated "AAAm" or "AAAm-
G" by Standard & Poor's and "Aaa" by Moody's;
(viii) Repurchase agreements collateralized by Direct
Obligations, GNMAs, FNMAs or FHLMCs, as defined above, with any
registered broker/dealer subject to the Securities Investors'
Protection Corporation jurisdiction or any commercial bank insured by
the FDIC, if such broker/dealer or bank has an uninsured, unsecured and
unguaranteed obligation rated "P-1" or "A2" or better by Moody's, "A-1"
or "A-" or better by Standard Poor's and, if rated by Fitch, "F-1" or
"A" or better by Fitch, provided:
a. a master repurchase agreement or specific written repurchase
agreement governs the transaction; and
b. the securities are held free and clear of any lien by the
Trustee or an independent third party acting solely as agent ("Agent")
for the Trustee, and such third party is (i) a Federal Reserve Bank,
(ii) a bank which is a member of the FDIC and which has combined
capital, surplus and undivided profits of not less than $50 million or
(iii) a bank approved in writing for such purpose by the Certificate
Insurer, and the Trustee shall have received written confirmation from
such third party that it holds such securities, free and clear of any
lien, as agent for the Trustee; and
c. a perfected first security interest under the Uniform
Commercial Code, or book entry procedures prescribed at 31 C.F.R. 306.1
et seq. or 31 C.F.R. 350.0 et seq. in such securities is created for
the benefit of the Trustee; and
d. the repurchase agreement has a term of 180 days or less, and
the Trustee or the Agent will value the collateral securities no less
frequently than weekly and will liquidate the collateral securities if
any deficiency in the required collateral percentage is not restored
within two business days of such valuation; and
e. the fair market value of the securities in relation to the
amount of the repurchase obligation, including principal and interest,
is equal to at least 103%; and
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f. the securities have a rating, at the time of purchase of "P-1"
or "A2" or better by Moody's.
(ix) Investment agreements, the issuer, form and substance of
which are specifically approved by the Certificate Insurer with notice
to Standard & Poor's and Moody's.
Notwithstanding the foregoing, Eligible Investments shall not include
(i) "stripped securities" and investments which contractually may return less
than the purchase price therefor, and (ii) instruments with a purchase price
greater than par if such instrument may be prepaid or called at a price less
than its purchase price prior to its stated maturity.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"FINAL SCHEDULED DISTRIBUTION DATE" means the Distribution Date
in March 2004
"FINANCED VEHICLE" means an automobile, light duty truck or
van, together with all accessions thereto, securing an Obligor's indebtedness
under the respective Receivable.
"FITCH" means Fitch Investors Service, L.P.
"HOLDER": see "Certificateholder."
"INDEMNIFICATION AGREEMENT" means the Indemnification Agreement
dated as of September 18, 1997 by and among MBIA Insurance Corporation, Chevy
Chase Bank, F.S.B., and Credit Suisse First Boston as Representative of itself,
J.P. Morgan Securities, Inc. and Smith Barney Inc.
"INITIAL YIELD MAINTENANCE AMOUNT" means $149,027.66.
"INSURANCE POLICIES" means the insurance policies described in
Section 3.1(xiii).
"INSURED CLASS A PRINCIPAL INSUFFICIENCY AMOUNT" means, with
respect to a Distribution Date, the lesser of (x) the excess of (i) the Class A
Principal Insufficiency Amount for such Distribution Date over (ii) the amount
then available from the Reserve Account and available to pay the Class A
Principal Insufficiency Amount as provided in clause (vi) of Section 5.4(a), and
(y) the amount by which the Class A Unpaid Balance (after giving effect to all
distributions in respect of principal on or prior to such Distribution Date)
exceeds the Pool Balance as of the last day of the preceding Collection Period;
provided that on the Final Scheduled Distribution Date, the Insured Class A
Principal Insufficiency Amount shall equal the amount set forth in clause (x) of
this definition.
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"INSURED PAYMENT" means (i) as of any Distribution Date, any
Deficiency Amount and (ii) any Preference Amount.
"INSURER DEFAULT" means the occurrence and continuation of the
following event: the Certificate Insurer shall have failed to make a payment
required under the Certificate Insurance Policy in accordance with its terms.
"LATE PAYMENT RATE" means, for any Distribution Date, the
"prime rate" of interest as published in THE WALL STREET JOURNAL in New York,
New York plus 2%. The Late Payment Rate shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
"LENDERS" means, together, the Seller and the Seller's
wholly-owned subsidiary, Consumer Finance Corporation, a Virginia corporation,
and "LENDER" means the Seller or Consumer Finance Corporation.
"LIEN" means a security interest, lien, charge, pledge,
equity, or encumbrance of any kind other than tax liens, mechanics' liens, and
any liens which attach to the respective Receivable by operation of law.
"LIQUIDATION EXPENSES" shall have the meaning provided in Section
5.2(a).
"LIQUIDATION PROCEEDS" means, with respect to a Distribution
Date, all monies collected with respect to a Defaulted Receivable during the
related Collection Period from whatever source (other than withdrawals from the
Reserve Account or the Yield Maintenance Account and the proceeds of a claim
under the Certificate Insurance Policy), including insurance proceeds and
proceeds of Financed Vehicles which have been sold or otherwise disposed of
during such Collection Period, net of the sum of (i) any amounts expended by the
Servicer for the account of the Obligor plus (ii) any amounts required by law to
be remitted to the Obligor.
"MAJORITY CERTIFICATEHOLDERS" means, as of any date of
determination, Holders of Class A Certificates and Class B Certificates
representing a majority of the Certificate Principal Balance as of such date.
"MONTHLY SERVICING FEE" means, for any Distribution Date,
one-twelfth of the product of (a) the Pool Balance as of the beginning of the
immediately preceding Collection Period and (b) the Servicing Fee Rate.
"MONTHLY TRUSTEE'S FEE" means, for any Distribution Date,
one-twelfth of the product of (a) the Certificate Principal Balance as of the
end of the Collection Period preceding such Distribution Date and (b) 0.0027%.
"MOODY'S" means Moody's Investors Service, Inc.
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"NET LOSS PERCENTAGE" means, with respect to any Distribution
Date, the fraction, expressed as a percentage, equal to (x) twelve times the Net
Losses for the related Collection Period divided by (y) the Pool Balance as of
the last day of such Collection Period.
"NET LOSSES" means with respect to a Collection Period and
with respect to each Receivable which became a Defaulted Receivable during such
Collection Period, the excess of (x) the combined Principal Balances of such
Defaulted Receivables over (y) the Liquidation Proceeds, if any, collected
during such Collection Period.
"NOTICE" means the telephonic or telegraphic notice promptly
confirmed in writing by fax, substantially in the form of Exhibit A attached to
the Certificate Insurance Policy, the original of which is subsequently
delivered by registered or certified mail, from the Trustee specifying the
Insured Payment which shall be due and owing on the applicable Distribution
Date.
"OBLIGOR" on a Receivable means the purchaser or the
co-purchasers of the Financed Vehicle or any other Person who owes payments
under the Receivable, including any guarantor.
"OFFICERS' CERTIFICATE" means a certificate signed by any two
of the chairman of the board, the president, any vice chairman of the board, any
executive vice president, any senior vice president, any vice president, the
treasurer, or the controller of the Seller or the Servicer, as appropriate;
provided that no individual shall sign in a dual capacity.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be in-house counsel to the Seller or Servicer, which counsel shall be
acceptable to the Trustee and the Certificate Insurer.
"OPTIONAL PURCHASE PRICE" means the amount specified as such in
Section 11.2.
"ORIGINAL CERTIFICATE PRINCIPAL BALANCE" means $202,030,907.40.
"ORIGINAL CLASS A CERTIFICATE PRINCIPAL BALANCE" means
$193,949,671.10.
"ORIGINAL CLASS B CERTIFICATE PRINCIPAL BALANCE" means
$8,081,236,.30.
"ORIGINAL POOL BALANCE" means $202,030,907.40.
"PERSON" means any individual, corporation, estate,
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof.
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"PLAN" shall have the meaning provided in Section 6.3(g)(i).
"POOL BALANCE" means, with respect to any date of
determination, the aggregate outstanding Principal Balance of all the
Receivables as of the close of business on such date (excluding Defaulted
Receivables, which are deemed to have a Principal Balance of zero).
"POOLING AND SERVICING AGREEMENT": See "Agreement."
"PREFERENCE AMOUNT" means, as to any Distribution Date, any
amounts included in previous distributions to Class A Certificateholders of
Class A Monthly Interest, Class A Interest Carryover Shortfall, Class A Monthly
Principal and Class A Principal Carryover Shortfall (exclusive of Insured
Payments) which are recovered from such Class A Certificateholders as a voidable
preference by a trustee in bankruptcy pursuant to the United States Bankruptcy
Code (11 U.S.C.), as amended from time to time, in accordance with a final,
nonappealable order of a court having competent jurisdiction and which have not
theretofore been repaid to such Class A Certificateholders, provided such Class
A Certificateholders have complied with the provisions of Section 5.5(e).
"PREFERENCE ORDER" shall have the meaning set forth in Section
5.5(e).
"PREMIUM AMOUNT" means, as to any Distribution Date,
one-twelfth of the product of (x) the Premium Percentage and (y) the Class A
Certificate Principal Balance on such Distribution Date (after taking into
account any distributions of principal to the Class A Certificateholders to be
made on such Distribution Date).
"PREMIUM PERCENTAGE" has the meaning set forth in the letter
agreement between the Seller and the Certificate Insurer.
"PRINCIPAL BALANCE" of a Receivable, at any time, means the
Amount Financed minus that portion of all payments received by the Servicer on
or before such time allocable to principal of such Receivable.
"PURCHASE AMOUNT" means, with respect to a Purchased
Receivable as of any Distribution Date, the amount equal to the sum of (i) the
unpaid Principal Balance of such Receivable as of the last day of the preceding
Collection Period and (ii) any unpaid interest accrued thereon at the related
APR through the date such Receivable is purchased or repurchased, after giving
effect to the receipt of monies collected on such Receivable in such preceding
Collection Period.
"PURCHASED RECEIVABLE" means, with respect to a Distribution
Date, a Receivable purchased not later than the last day of the Collection
Period immediately preceding such Distribution Date by the Servicer pursuant to
Section 4.2 or 4.7 or repurchased not later than last day of the Collection
Period immediately preceding such Distribution Date by the Seller pursuant to
Section 3.2 or 11.2.
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"QIB" means a "qualified institution buyer" as defined in Rule
144A under the Securities Act.
"RATING AGENCIES" means Moody's, Standard & Poor's and Fitch.
"RECEIVABLE" means any motor vehicle retail installment sales
contract or motor vehicle installment loan executed by an Obligor in respect of
a Financed Vehicle, including, without limitation, any extension or revision
agreement relating thereto and all payments due thereunder on or after the
Cut-Off Date and all proceeds thereof, which Receivable appears on the Schedule
of Receivables.
"RECEIVABLE FILES" means the documents specified in Section
3.3.
"RECORD DATE" means, as to any Distribution Date, the close of
business on the day (whether or not a Business Day) immediately preceding such
Distribution Date or, if Definitive Certificates in respect a Class of
Certificates are issued pursuant to Section 6.8, with respect to such Class the
close of business on the last day of the calendar month immediately preceding
the month in which such Distribution Date occurs.
"REIMBURSEMENT AMOUNT" means, as of any Distribution Date, the
sum of (i) all Insured Payments previously paid by the Certificate Insurer and
not previously repaid to the Certificate Insurer pursuant to Section 5.4(a)(iv)
and Section 5.5(d), plus (ii) interest accrued on each such Insured Payment not
previously repaid, calculated at the Late Payment Rate from the date the
Certificate Insurer paid the related Insured Payment. The Certificate Insurer
shall notify in writing the Trustee and the Seller of the amount of any
Reimbursement Amount due in respect of any Distribution Date at least two days
prior to the related Determination Date.
"REPRESENTATION LETTER" means the representation letter to be
delivered to the Trustee by any transferee of a Class B Certificate or any
interest therein pursuant to Section 6.3, substantially in the form attached
hereto as Exhibit G.
"REQUIRED RATE" means 8.2963% per annum.
"RESERVE ACCOUNT" means the Reserve Account established
pursuant to Section 5.6.
"RESERVE ACCOUNT DEPOSIT AMOUNT" means, with respect to any
Distribution Date, the lesser of (x) the excess of (i) the Specified Reserve
Balance on such Distribution Date over (ii) the amount on deposit in the Reserve
Account on such Distribution Date (excluding the Class B Retained Principal held
in the Reserve Account and any amounts deposited into the Reserve Account
specifically for the payment of Class B Monthly Deficiency Interest and any
unpaid Class B Deficiency Interest Carryover Shortfall pursuant to Section
5.4(a)(ix)), after taking into account the amount of any Reserve Account
Withdrawal Amount on such Distribution Date and (y) the amount remaining in the
Certificate Account after taking into account the distributions therefrom
described in clauses (i) through (vi) of Section 5.4(a).
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"RESERVE ACCOUNT WITHDRAWAL AMOUNT" means, with respect to any
Distribution Date, the lesser of (x) the Reserve Account Withdrawal Requirement
for such Distribution Date and (y) the amount on deposit in the Reserve Account
(other than any amounts deposited into the Reserve Account specifically for the
payment of Class B Monthly Deficiency Interest and any unpaid Class B Deficiency
Interest Carryover Shortfall pursuant to Section 5.4(a)(ix)) on such
Distribution Date before taking into account any withdrawal therefrom on such
Distribution Date.
"RESERVE ACCOUNT WITHDRAWAL REQUIREMENT" means, with respect
to any Distribution Date the excess of (i) the sum of the amounts specified in
clauses (ii), (v) and (vi) of Section 5.4(a) (without giving effect to any
limitation thereon based on the availability of funds) over (ii) the amount of
Available Funds available to pay such amounts on such Distribution Date.
"RESERVE INITIAL DEPOSIT" shall be $3,636,556.33.
"RESPONSIBLE OFFICER" means, when used with respect to the
Trustee, any officer within the Corporate Trust Department (or any successor
group of the Trustee), including any senior vice president, vice president,
assistant vice president, assistant secretary, assistant treasurer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Department because of his knowledge of and familiarity with the
particular subject.
"SCHEDULE OF RECEIVABLES" shall be, as of any date, the
schedule of Receivables included in the Trust on such date. The initial Schedule
of Receivables as of the Cut-Off Date is attached hereto as Exhibit A and sets
forth as to each Receivable, among other things, (a) its identifying number and
the billing address of the related Obligor; (b) its date of origination; (c) the
original number of months to stated maturity; (d) the original stated maturity;
(e) the Principal Balance as of the Cut-Off Date; (f) the original Principal
Balance; (g) the APR; (h) the scheduled monthly payment of principal and
interest; (i) the amount of the Balloon Payment, if any; and (j) whether such
Receivable is with recourse to any Dealer and the type of such recourse.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" means Chevy Chase Bank, F.S.B. in its capacity as the
seller of the Receivables under this Agreement, and each successor to Chevy
Chase Bank, F.S.B. (in the same capacity) pursuant to Section 7.3.
"SERVICER" means Chevy Chase Bank, F.S.B. in its capacity as
the servicer of the Receivables, and each successor to Chevy Chase Bank, F.S.B.
(in the same capacity) pursuant to Sections 8.3 and 9.2.
"SERVICER DEFAULT" means an event specified in Section 9.1.
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"SERVICER'S CERTIFICATE" means a certificate completed and
executed by the Servicer by its chairman of the board, its president, any vice
chairman of its board, any executive vice president, any senior vice president,
any vice president, the treasurer, or the controller of the Servicer pursuant to
Section 4.9.
"SERVICING FEE RATE" means 1.90%.
"SERVICING OFFICE" means, at the date of this Agreement, the
office of the Servicer specified in this Agreement, or such other address as the
Servicer may designate from time to time by notice to the Seller, the Trustee
and the Certificate Insurer.
"SERVICING OFFICER" means any officer of the Servicer involved
in, or responsible for, the administration and servicing of the Receivables
whose name appears on a list of servicing officers annexed to an Officers'
Certificate furnished to the Trustee by the Servicer, as the case may be, as
such list may from time to time be amended.
"SPECIFIED NET LOSS PERCENTAGE" means on or prior to the ninth
Distribution Date, 4.00% and thereafter, 3.75%.
"SPECIFIED RESERVE BALANCE" means, with respect to any
Distribution Date, the greater of (i) $2,020,309.07, and (ii) 1.95% of the
Adjusted Pool Balance on the first day of the related Collection Period; except
that if on any Distribution Date (a) the average of the Net Loss Percentage for
the three Collection Periods preceding such Distribution Date or for the three
Collection Periods preceding either of the two preceding Distribution Dates
exceeds the Specified Net Loss Percentage, or (b) the average of the Delinquency
Percentages for the three Collection Periods preceding such Distribution Date or
for the three Collection Periods preceding either of the two preceding
Distribution Dates exceeds 7.0%, then the Specified Reserve Balance applicable
to such Distribution Date shall be an amount equal to the greater of (x)
$2,020,309.07 and (y) 3.0% of the Adjusted Pool Balance on the first day of the
related Collection Period.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services,
a division of The McGraw Hill Companies, Inc.
"STATE" means (i) any state of the United States of America or
(ii) the District of Columbia.
"SUB-SERVICER" means, as to the Sub-Serviced Receivables, the
Servicer's wholly-owned subsidiary, Consumer Finance Corporation, a Virginia
corporation.
"SUB-SERVICED RECEIVABLES" means those Receivables sold to
Chevy Chase Bank, F.S.B. pursuant to the Purchase and Sale Agreement dated as of
September 1, 1997 between Chevy Chase Bank, F.S.B. as Purchaser and Consumer
Finance Corporation as Seller.
"TRUST" means the trust created by this Agreement, the estate
of which shall consist of the Receivables (other than Purchased Receivables) and
all monies (including accrued
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interest) due or received thereon on or after the Cut-Off Date; security
interests in the Financed Vehicles; the Certificate Account and the Collection
Account; funds deposited in the Collection Account and the Certificate Account;
the right to receive payments from the Reserve Account and the Yield Maintenance
Account (under the conditions specified herein); the right to receive payments
from the Certificate Insurance Policy (under the conditions specified herein);
Liquidation Proceeds; proceeds from recourse to Dealers relating to the
Receivables; proceeds from claims on any physical damage, theft, vendor's single
interest, credit life, disability, or hospitalization insurance policies
covering Financed Vehicles or Obligors; and other property described in Section
2.2.
"TRUSTEE" means U.S. Bank National Association, doing business
as First Bank National Association, a national banking association, or its
successor in interest, or any successor trustee appointed as herein provided.
"TRUSTEE'S CERTIFICATE" means a certificate completed and
executed by the Trustee by a Responsible Officer pursuant to Section 10.2,
substantially in the form of, in the case of an assignment to the Seller,
Exhibit C, and, in the case of an assignment to the Servicer, Exhibit D.
"UCC" means the Uniform Commercial Code, as it may be amended
from time to time, as in effect in the applicable jurisdiction.
"YIELD MAINTENANCE ACCOUNT" means the Yield Maintenance
Account established pursuant to Section 5.6.
"YIELD MAINTENANCE AMOUNT" means, with respect to any
Distribution Date, the sum of all Designated Loan Required Amounts as of such
Distribution Date.
"YIELD MAINTENANCE WITHDRAWAL AMOUNT" means, as of any
Distribution Date, the lesser of (i) the sum of, with respect to each Designated
Loan held by the Trust as of the opening of business on the first day of the
related Collection Period, the product of (x) one-twelfth, (y) such Designated
Loan's Principal Balance as of such time and (z) the excess of (1) the Required
Rate over (2) such Designated Loan's APR and (ii) the amount on deposit in the
Yield Maintenance Account on such Distribution Date.
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 genders; 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."
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SECTION 1.3 CUT-OFF DATE AND RECORD DATE.
All references to the Record Date prior to the first Record Date in
the life of the Trust shall be to the Cut-Off Date.
SECTION 1.4 SECTION REFERENCES.
All references to Articles, Sections, subsections, paragraphs,
clauses, Exhibits and Schedules in this Agreement shall be to such portions of
this Agreement unless otherwise specified.
SECTION 1.5 INTEREST CALCULATIONS.
(a) All allocations of payments with respect to a Receivable to principal
and interest and determinations of periodic charges and the like shall be made
using the simple interest method, based on the actual number of days elapsed and
the actual number of days in the calendar year. Each payment on a Receivable
(net of fees and charges) shall be applied first to the amount of interest
accrued on such Receivable to the date of receipt and then to reduce the
principal amount outstanding on the Receivable.
(b) All calculations of interest on the Certificates and of the Monthly
Servicing Fee, Premium Amount and Monthly Trustee's Fee shall be made on the
basis of a 360-day year comprised of twelve 30-day months.
SECTION 1.6 ACTION BY OR CONSENT OF CERTIFICATEHOLDERS; ACTION
BY OR CONSENT OF CERTIFICATE INSURER.
(a) Solely for the purposes of giving any consent, waiver, request, or
demand pursuant to this Agreement, the interest evidenced by any Certificate
registered in the name of the Seller or the Servicer, or any Person controlling,
controlled by, or under common control with the Seller or the Servicer, other
then a Certificate pledged by any such Person to a nonaffiliated third party,
shall not be taken into account in determining whether the requisite percentage
necessary to effect any such consent, waiver, request, or demand shall have been
obtained unless all of the Certificates outstanding are registered in the name
of the Seller, the Servicer and any such Persons. For purposes of the foregoing,
a trust or other entity formed for the securitization of assets is not a Person
controlling, controlled by or under common control with, or affiliated with, the
Seller or the Servicer.
(b) If an Insurer Default has occurred and is continuing, any vote or
action of the Trustee or the Majority Certificateholders that otherwise requires
the consent of the Certificate Insurer may be taken without such consent, and
all rights of the Certificate Insurer to take or consent to any action shall
vest in the Majority Certificateholders until such Insurer Default has been
cured.
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ARTICLE II
CREATION OF THE TRUST;
CONVEYANCE OF RECEIVABLES
SECTION 2.1 CREATION OF TRUST
Upon the execution of this Pooling and Servicing Agreement by the
parties hereto and the concurrent conveyance of the Receivables and other
property by the Seller to the Trustee pursuant to Section 2.2, there is hereby
created the Chevy Chase Auto Receivables Trust 1997-3.
SECTION 2.2 CONVEYANCE OF RECEIVABLES.
In consideration of the Trustee's delivery to or upon the order of
the Seller of authenticated Certificates with an Original Aggregate Certificate
Principal Balance equal to the Original Pool Balance, the Seller does hereby
sell, transfer, assign, and otherwise convey to the Trustee, in trust for the
benefit of the Certificateholders and the Certificate Insurer, without recourse
(subject to the obligations contained herein):
(i) all right, title, and interest of the Seller in and to the
Receivables listed in the Schedule of Receivables, including all monies
(including accrued interest) due or received thereunder on or after the
Cut-Off Date, and all property (including the right to receive future
Liquidation Proceeds) that secures a Receivable and that shall have been
acquired by or on behalf of the Trustee;
(ii) the security interests of the Seller in the Financed Vehicles
granted by Obligors pursuant to the Receivables;
(iii) the Certificate Account and the Collection Account and funds
deposited therein;
(iv) the interest of the Seller in the documents constructively
delivered to the Trustee pursuant to Section 3.3;
(v) the interest of the Seller in any proceeds from recourse to
Dealers relating to the Receivables;
(vi) the interest of the Seller in any Liquidation Proceeds and any
proceeds from claims on any physical damage, theft, vendor's single
interest, credit life, disability or hospitalization insurance policies
covering Financed Vehicles or Obligors;
(vii) the rights of the Seller to proceeds of Insurance Policies;
(viii) the right to receive payments as set forth herein from the
Reserve Account and the Yield Maintenance Account;
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(ix) the right to receive payments as set forth herein from the
Certificate Insurance Policy; and
(x) the proceeds of any and all of the foregoing, whether cash or
non-cash, and any proceeds of proceeds.
It is the express intention of the Seller and the Trustee that (a)
the assignment and transfer herein contemplated constitute a sale of the
Receivables and the other property of the Trust described above, conveying good
title thereto free and clear of any liens, encumbrances, security interests or
rights of other Persons, from the Seller to the Trust and (b) the Receivables
and the other property of the Trust described above not be a part of the
Seller's estate in the event of an insolvency of the Seller. In the event that,
notwithstanding the intent of the Seller and the Trustee, such conveyance is
deemed to be a pledge in connection with a financing, the parties intend that
the Seller shall have granted to the Trustee, in trust for the benefit of the
Certificateholders and the Certificate Insurer, a security interest in all of
the Seller's right, title and interest in the items of property listed in
clauses (i) through (ix) above, and all proceeds of the foregoing, wherever
located and in whatever form, whether tangible or intangible, and whether now
owned or hereafter acquired, that such security interest be a first priority
perfected security interest and that this Agreement shall constitute a security
agreement under applicable law and the Trustee shall have all of the rights and
remedies of a secured party and creditor under the UCC as in force in the
relevant jurisdictions.
The Seller hereby pledges, grants, assigns and otherwise sets over to
the Trustee, in trust for the benefit of the Certificateholders and the
Certificate Insurer, the Yield Maintenance Account and the Reserve Account and
all amounts on deposit therein and all Eligible Investments held therein from
time to time and all proceeds thereof, and hereby grants to the Trustee for the
benefit of the Certificateholders and the Certificate Insurer a first priority
perfected security interest in such Accounts, amounts and Eligible Investments
and proceeds. It is the intention of the Seller that, with respect to such
Accounts and such amounts and Eligible Investments and proceeds, this Agreement
shall constitute a security agreement under applicable law and the Trustee shall
have all of the rights and remedies of a secured party and creditor under the
UCC and other applicable law as in force in the relevant jurisdictions. Any
rights to the Reserve Account and all amounts on deposit therein and all
Eligible Investments held therein from time to time and all proceeds thereof of
the Class B Certificateholders shall be subject to the prior rights of the Class
A Certificateholders as provided for herein, and the Class B Certificateholders
have acquired or will acquire any right in such Account and such amounts,
investments and proceeds subject to such prior rights.
The Seller has caused the Certificate Insurance Policy to be issued
to the Trustee, in trust, for the benefit of the Class A Certificateholders.
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SECTION 2.3 ACCEPTANCE BY TRUSTEE.
The Trustee does hereby accept the assignment by the Seller pursuant
to Section 2.2 and declares that the Trustee accepts such assignment upon the
trusts herein set forth for the benefit of the Certificateholders and the
Certificate Insurer, as their respective interests may appear, subject to the
terms and provisions of this Agreement. The assignment will not constitute, and
is not intended to result in, an assumption by the Trustee, any
Certificateholder or the Certificate Insurer of any obligation of the Seller or
any other Persons in connection with the Receivables, the Receivables Files, the
Insurance Policies or under any agreements or instruments relating to any of
them.
ARTICLE III
THE RECEIVABLES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
The Seller makes the following representations and warranties as to
the Receivables on which the Trustee relies in accepting the Receivables in
trust and executing and authenticating the Certificates and upon which the
Certificate Insurer relies in executing and delivering the Certificate Insurance
Policy. Such representations and warranties speak as of the Closing Date, but
shall survive the sale, transfer, and assignment of the Receivables to the
Trustee.
(i) CHARACTERISTICS OF RECEIVABLES. Each Receivable (a) shall
have been originated or purchased by a Lender, (b) shall have been fully
and properly executed by the parties thereto, (c) is a fully-amortizing
simple interest installment contract or installment loan which provides for
level monthly payments over its original term, provided that (x) some
Receivables may include a payment in the last month in the life of the
Receivable which due to delinquencies or partial prepayments may be
different from the level monthly payment and (y) 0.20% of the Receivables
(measured as a percentage of the Original Pool Balance) may be Balloon
Receivables, (d) shall have created or shall create a valid, subsisting,
and enforceable first priority security interest in favor of such Lender in
the Financed Vehicle, which security interest shall be assignable and shall
have been validly assigned by the Seller to the Trustee, (e) shall contain
customary and enforceable provisions such that the rights and remedies of
the holder thereof shall be adequate for realization against the collateral
of the benefits of the security and (f) is payable in United States
dollars.
(ii) SCHEDULE OF RECEIVABLES. The information set forth in the
Schedule of Receivables shall be true and correct in all material respects
as of the opening of business on the Cut-Off Date. The Seller shall have
caused each Lender's electronic ledger relating to each related Receivable
to be clearly and unambiguously marked to
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show that such Receivable has been sold to the Trust for the benefit of the
Certificateholders pursuant to this Agreement.
(iii) COMPLIANCE WITH LAW. Each Receivable and each sale of the
related Financed Vehicle shall have complied at the time it was originated
or made, and at the execution of this Agreement shall comply, in all
material respects with all requirements of applicable federal, State, and
local laws, and regulations thereunder, including, without limitation,
usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair
Debt Collection Practices Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B and
Z, and State adaptations of the National Consumer Act and of the Uniform
Consumer Credit Code, and other applicable consumer credit laws and equal
credit opportunity and disclosure laws.
(iv) BINDING OBLIGATION. Each Receivable represents the
genuine, legal, valid, and binding payment obligation in writing of the
related Obligor, enforceable by the holder thereof in accordance with its
terms. All parties to such Receivable have full legal capacity to execute
and deliver such Receivable and all other documents related thereto and to
grant the security interest granted thereby and the terms of such
Receivable have not been waived or modified in any respect (other than
extensions of payments granted in the ordinary course of the Servicer's
collection procedures (or of the Sub-Servicer, with respect to the Sub-
Serviced Receivables) and the term of which does not extend beyond the last
day of the Collection Period immediately preceding the Final Scheduled
Distribution Date).
(v) NO GOVERNMENT OBLIGOR. None of the Receivables shall be
due from the United States of America or any State or local government or
from any agency, department, or instrumentality of the United States of
America or any State or local government.
(vi) SECURITY INTEREST IN FINANCED VEHICLE. Immediately prior
to the sale, assignment, and transfer thereof to the Trustee, each
Receivable shall be secured by a validly perfected first priority security
interest in the Financed Vehicle in favor of the Lender that originated or
purchased such Receivable as secured party and all necessary and
appropriate actions with respect to such Receivable shall have been taken
to perfect a first priority security interest in the Financed Vehicle in
favor of such Lender as secured party, which security interest is
assignable and has been so assigned to the Trustee.
(vii) RECEIVABLES IN FORCE. No Receivable shall have been
satisfied, subordinated, or rescinded, nor shall any Financed Vehicle have
been released from the lien granted by the related Receivable in whole or
in part.
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(viii) NO WAIVER. No provision of a Receivable shall have been
waived (other than extensions of payments granted in the ordinary course of
the collection procedures of the Servicer (or of the Sub-Servicer, with
respect to the Sub-Serviced Receivables) and the term of which does not
extend beyond the last day of the Collection Period immediately preceding
the Final Scheduled Distribution Date).
(ix) NO AMENDMENTS. No Receivable shall have been amended such
that the number of the Obligor's scheduled payments shall have been
increased.
(x) NO DEFENSES. No facts exist which would give rise to any
right of rescission, setoff, counterclaim or defense nor shall have any
right of rescission, setoff, counterclaim, or defense been asserted or
threatened with respect to any Receivable.
(xi) NO LIENS. No liens or claims shall have been filed,
including liens for work, labor, materials or taxes relating to a Financed
Vehicle, that shall be liens prior to, or equal or coordinate with, the
security interest in the Financed Vehicle granted by the Obligor pursuant
to the Receivable.
(xii) NO DEFAULT. Except for payment defaults continuing for a
period of not more than 59 days as of the Cut-Off Date, no default, breach,
violation or event permitting acceleration under the terms of any
Receivable shall exist; no 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 shall exist; and the related
Lender shall not have waived any of the foregoing.
(xiii) INSURANCE. The Servicer, in accordance with its customary
procedures, shall have (i) required that the Obligor obtain physical damage
and theft insurance covering the Financed Vehicle as of the date of the
related contract and (ii) obtained vendor's single interest insurance
covering the Financed Vehicle.
(xiv) TITLE. It is the intention of the Seller that the
transfer and assignment herein contemplated, taken as a whole, constitutes
a sale of the Receivables and other property of the Trust from the Seller
to the Trust and that the beneficial interest in and title to the
Receivables and other Trust property not be part of the receivership or
conservatorship estate in the event of the appointment of a receiver or
conservator for the Seller. No Receivable has been sold, transferred,
assigned, or pledged by the Seller to any Person other than the Trustee.
Immediately prior to the transfer and assignment herein contemplated, the
Seller had good and marketable title to each Receivable free and clear of
all Liens, and, immediately upon the transfer thereof, the Trustee for the
benefit of the Certificateholders and the Certificate Insurer shall have
good and marketable title to each Receivable, free and clear of all Liens
and rights of others, except for the rights of the Certificateholders and
the Certificate Insurer; and the transfer has been perfected under the UCC.
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(xv) LAWFUL ASSIGNMENT. No Receivable shall have been
originated in, or shall be subject to the laws of, any jurisdiction under
which the sale, transfer, and assignment of such Receivable under this
Agreement or transfers of the Certificates would be unlawful, void, or
voidable.
(xvi) ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Trustee
a first priority perfected ownership interest in the Receivables shall have
been made.
(xvii) ONE ORIGINAL. There shall be only one original executed
copy of each Receivable, and immediately prior to the constructive delivery
thereof to the Trustee pursuant to Section 3.3, such copy shall have been
in the custody and possession of the applicable Lender.
(xviii) NO BANKRUPT OBLIGOR. None of the Receivables shall be due
from an Obligor who has commenced a voluntary case under the United States
Bankruptcy Code or consented to the entry of or failed to have stayed
within 60 days of entry an order for relief against it in an involuntary
case under the United States Bankruptcy Code.
(xix) CHATTEL PAPER; CHIEF EXECUTIVE OFFICE. The Receivables
constitute "chattel paper" within the meaning of the UCC as in effect in
the State of Maryland. The chief executive office of the Seller is located
in the State of Maryland.
(xx) MAXIMUM AMOUNT FINANCED. No Obligor shall be the Obligor
on Receivables on which the sum of the Principal Balances of such
Receivables is greater than $57,000.
(xxi) NO ASSIGNMENT. The related Lender has not taken any
action to convey any right to any Person that would result in such Person
having a right to payments due under the Receivable that is senior to or
equal with that of the Trust.
(xxii) COMPOSITION OF RECEIVABLES. Each Receivable is secured by
a Financed Vehicle which is a new or used automobile, light duty truck or
van.
(xxiii) MATURITY OF RECEIVABLES. Each Receivable shall have an
original term to stated maturity of at least 12 months and not more than 72
months.
(xxiv) MINIMUM AND MAXIMUM ANNUAL PERCENTAGE RATE. Each
Receivable shall have an Annual Percentage Rate no less than 6.00% and no
more than 31.00%.
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(xxv) MINIMUM AND MAXIMUM PRINCIPAL BALANCE. Each Receivable
shall have a Principal Balance as of the Cut-Off Date no less than $1,000
and no more than $40,000.
(xxvi) PAYMENT. With respect to Sub-Serviced Receivables only,
the Obligor under each Sub-Serviced Receivable has made at least one
payment with respect thereto as of the Cut-Off Date.
(xxvii) STATES OF OBLIGOR RESIDENCE. Except with respect to
Receivables with an aggregate Principal Balance as of the Cut-Off Date
representing 18.16% of the Original Pool Balance, the Obligor under each
Receivable has a billing address in Maryland, Virginia, North Carolina or
Georgia.
(xxviii) LOCATION OF RECEIVABLE FILES. The Receivable Files shall
be kept by the Servicer as custodian for the Trustee at 7926 Jones Branch
Drive, McLean, Virginia 22102, or at such other location or locations as
may be designated from time to time by notice to the Trustee and the
Certificate Insurer.
(xxix) ADVANCE PAYMENTS. As of the day prior to the Cut-Off
Date, no Receivable has been paid more than 180 days in advance.
(xxx) NO ADVERSE SELECTION. The Receivables were selected from
retail installment sales contracts and motor vehicle installment loans in
the applicable Lender's portfolio that had met the applicable conditions
specified in this Section 3.1 utilizing no selection procedures adverse to
the Certificateholders or the Certificate Insurer relative to similar
retail installment sales contracts and motor vehicle installment loans such
Lender's portfolio.
SECTION 3.2 REPURCHASE UPON BREACH.
The Seller, the Servicer, the Trustee or the Certificate Insurer, as
the case may be, shall inform the other parties promptly, in writing, upon the
discovery of any breach of the Seller's representations and warranties contained
in Section 3.1; provided, that the Trustee shall have no duty to inquire
concerning, or to investigate, the breach of any of such representations and
warranties. Unless the breach shall have been cured by the last day of the
Collection Period following the Collection Period during which the Seller
becomes aware of, or receives written notice of, such breach, the Seller shall
repurchase as of such day (or, at the Seller's option, as of the last day of the
Collection Period in which such breach was discovered) any Receivable materially
and adversely affected by such breach and any Receivable in which the interest
of the Trust or of the Certificate Insurer is materially and adversely affected
by such breach (unless such Receivable is otherwise being purchased pursuant to
Section 11.2). In consideration of the purchase of the Receivable, the Seller
shall remit the Purchase Amount, in the manner specified in Section 5.3. The
sole remedy of the Trustee, the Trust, the Certificateholders or the Certificate
Insurer with respect to a breach of the Seller's representations and warranties
contained in
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Section 3.1 shall be to require the Seller to repurchase Receivables pursuant to
this Section 3.2. The Seller shall notify the Certificate Insurer of any
repurchase of any Receivable pursuant to this Section.
SECTION 3.3 CUSTODY OF RECEIVABLE FILES.
To assure uniform quality in servicing the Receivables and to reduce
administrative costs, the Trustee, upon the execution and delivery of this
Agreement, hereby revocably appoints the Servicer, and the Servicer hereby
accepts such appointment, to act as the agent of the Trustee as custodian of the
following documents or instruments which are hereby constructively delivered to
the Trustee with respect to each Receivable:
(i) The original of the Receivable fully executed by the
Obligor.
(ii) The original credit application fully executed by the
Obligor.
(iii) The original certificate of title (or, if the original is
not returned to the Lender under applicable state law, a copy thereof) held
by the Lender that originated or purchased such Receivable evidencing the
security interest of such Lender in the Financed Vehicle.
(iv) Any and all other documents that the Servicer or the
applicable Lender shall keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor, or a Financed Vehicle.
SECTION 3.4 DUTIES OF SERVICER AND SUB-SERVICER AS CUSTODIAN
(a) SAFEKEEPING. The Servicer, in its capacity as custodian, shall hold
the Receivable Files on behalf of the Trustee for the use and benefit of all
present and future Certificateholders and the Certificate Insurer and maintain
such accurate and complete accounts, records, and computer systems pertaining to
each Receivable File as shall enable the Trustee to comply with this Agreement.
In performing its duties as custodian, the Servicer shall act with reasonable
care, using that degree of skill and attention that the Servicer exercises with
respect to the receivable files relating to all comparable automotive
receivables that the Servicer services for itself. The Servicer shall conduct,
or cause to be conducted, periodic audits of the Receivable Files held by it
under this Agreement, and of the related accounts, records, and computer
systems, in such a manner as shall enable the Trustee to verify the accuracy of
the Servicer's record keeping. The Servicer shall promptly report to the Trustee
and the Certificate Insurer any failure on the Servicer's 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 its office specified in this Agreement, or at such other
office or offices as shall be specified by the Servicer to the Trustee and the
Certificate Insurer by prior
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written notice. The Servicer shall make available to the Trustee and the
Certificate Insurer or their respective duly authorized representatives,
attorneys, or auditors a list of locations of the Receivable Files, and the
related accounts, records, and computer systems maintained by the Servicer at
such times during normal business hours as the Trustee or the Certificate
Insurer shall 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 Trustee, the
Servicer shall release any document in a Receivable File to the Trustee, the
Trustee's agent, or the Trustee's designee, as the case may be, at such place or
places as the Trustee may designate, as soon as practicable.
(d) SERVICER TO REMAIN LIABLE. The Servicer shall require the Sub-
Servicer to comply with the preceding provisions of this Section 3.4 with
respect to the Sub-Serviced Receivables. Notwithstanding anything to the
contrary, the Servicer shall remain primarily liable for its duties as custodian
with respect to all Receivables, including the Sub-Serviced Receivables.
SECTION 3.5 INSTRUCTIONS; AUTHORITY TO ACT.
The Servicer and the Sub-Servicer shall be deemed to have received
proper instructions with respect to the Receivable Files upon its receipt of
written instructions signed by a Responsible Officer of the Trustee.
SECTION 3.6 EFFECTIVE PERIOD AND TERMINATION
The appointment of the Servicer as custodian shall become effective
as of the Cut-Off Date and shall continue in full force and effect for the term
of the Trust unless terminated earlier pursuant to this Section 3.6. If the
Servicer shall resign in accordance with the provisions of Section 8.5 or if all
of the rights and obligations of the Servicer shall have been terminated under
Section 9.1, the appointment of the Servicer and the Sub-Servicer as custodian
may be terminated (1) by the Trustee or by the Majority Certificateholders, in
either case, with the consent of the Certificate Insurer or (2) by the
Certificate Insurer, by written notification to the Servicer. The Trustee with
the consent of the Certificate Insurer may, or at the direction of the
Certificate Insurer shall, terminate the Servicer's appointment as custodian
with cause at any time upon written notification to the Servicer, in which case
the Sub-Servicer shall also be terminated as a custodian. The Trustee shall
notify the Rating Agencies of any termination of the Servicer's appointment as
custodian pursuant to this Section 3.6. As soon as practicable after notice of
any termination of such appointment, the Servicer and the Sub-Servicer shall
deliver the Receivable Files to the Trustee or the Trustee's agent at such place
or places as the Trustee may reasonably designate.
The following procedures shall apply if the appointment of the
Servicer as the custodian has been terminated:
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(i) Upon payment in full of any Receivable, the Servicer will
notify the Trustee by an Officers' Certificate (which certification shall
include a statement to the effect that all amounts received in connection
with such payments which are required to be deposited in the Collection
Account pursuant to Section 5.2 have been so deposited) and shall request
delivery of the Receivable and Receivable File to the Servicer.
(ii) From time to time as appropriate for servicing and
enforcing any Receivable, the Trustee shall, upon written request of an
officer of the Servicer and delivery to the Trustee of a receipt signed by
such officer in a form satisfactory to the Trustee, cause the original
Receivable and the related Receivable File to be released to the Servicer.
The Servicer's receipt for a Receivable and/or Receivable File shall
obligate the Servicer to return the original Receivable and the related
Receivable File to the Trustee when the Servicer's need for such Receivable
and/or Receivable File has ceased unless the Receivable shall be liquidated
or repurchased as described in Section 3.2, 4.2 or 4.7.
(iii) The Trustee may rely and shall be protected when acting
or refraining from acting upon any certificate, request or receipt under
this Section 3.6.
(iv) The Trustee shall permit the Servicer and the Certificate
Insurer access to the Receivables Files at all reasonable times during the
Trustee's normal business hours. The Trustee shall, within two Business
Days of the request of the Servicer or the Certificate Insurer, execute
such documents and instruments as are prepared by the Servicer or the
Certificate Insurer and delivered to the Trustee, as the Servicer or the
Certificate Insurer deems necessary to permit the Servicer, in accordance
with its customary servicing procedures, to enforce the Receivable on
behalf of the Trust and any related Insurance Policies covering the
Obligor, the Receivable or Financed Vehicle so long as such execution in
the Trustee's sole discretion does not conflict with this Agreement and
will not cause it undue risk or liability. The Trustee shall not be
obligated to release any document from any Receivable File unless it
receives a trust receipt from the Servicer as described in clause (ii) of
this Section 3.6.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.1 DUTIES OF SERVICER.
The Servicer, as an independent contractor on behalf of the Trust and
for the benefit of the Certificateholders and the Certificate Insurer, will be
responsible for managing, servicing and administering the Receivables and
enforcing and making collections on the Receivables and any insurance policies
relating to the Financed Vehicles and for enforcing any security interest in any
of the Financed Vehicles, with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable automotive
receivables
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that it services for itself. The Servicer's responsibilities shall include
collecting and posting all payments, responding to inquiries of Obligors or of
federal, state or local governmental authorities with respect to the
Receivables, investigating delinquencies, sending payment coupons to Obligors,
accounting for collections, furnishing monthly and annual statements to the
Trustee and the Certificate Insurer with respect to distributions, providing
appropriate federal income tax information for use in providing information to
Certificateholders and attempting to maintain the perfected security interest of
the applicable Lender in the Financed Vehicles, in accordance with the
provisions set forth herein. The Servicer shall follow its customary standards,
policies, and procedures in performing its duties as Servicer; provided, that
with respect to the Sub-Serviced Receivables and for so long as the Sub-Servicer
is sub-servicing the Sub-Serviced Receivables, for purposes of this Section 4.1
and of Sections 4.2 and 4.3, the Servicer shall follow the Sub-Servicer's
customary standards, policies, practices and procedures. Without limiting the
generality of the foregoing, the Servicer is authorized and empowered by the
Trustee to execute and deliver, on behalf of itself, the Trust, the
Certificateholders, or the Trustee or any of them, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all
other comparable instruments, with respect to such Receivables or to the
Financed Vehicles securing such Receivables. If the Servicer shall commence a
legal proceeding to enforce a Receivable, the Trustee shall thereupon be deemed
to have automatically assigned, solely for the purpose of collection, such
Receivable to the Servicer. The Trustee shall execute any documents prepared by
the Servicer and delivered to the Trustee for execution that are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder.
SECTION 4.2 COLLECTION OF RECEIVABLE PAYMENTS.
The Servicer shall use its best efforts to collect all payments
called for under the terms and provisions of the Receivables as and when the
same shall become due and shall follow such collection procedures as it follows
with respect to all comparable automotive receivables that it services for
itself. If payments are extended in the ordinary course of the Servicer's
collection procedures, and, as a result, any Receivable would be outstanding on
the first day after the end of the Collection Period immediately preceding the
Final Scheduled Distribution Date, then the Servicer shall be obligated to
purchase such Receivable in the manner set forth in Section 4.7 (unless such
Receivable is otherwise being purchased pursuant to Section 3.2 or 11.2) as of
the last day of the Collection Period following the Collection Period in which
the extension was made (or, at the Servicer's option, as of the last day of the
Collection Period in which the extension was made); provided, however, that the
purchase obligation with respect to a Receivable shall be the obligation of the
Servicer which granted the extension, and not of any successor Servicer; and
provided, further, that the purchase obligation of any Servicer shall survive
the termination of such Servicer as Servicer. The Servicer may in its discretion
waive any Additional Fees.
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SECTION 4.3 REALIZATION UPON RECEIVABLES.
On behalf of the Trust, the Servicer shall use its best efforts,
consistent with its customary servicing procedures, to repossess or otherwise
convert the ownership of the Financed Vehicle securing any Receivable as to
which the Servicer shall have determined that eventual payment in full is
unlikely. The Servicer shall follow such customary and usual practices and
procedures as it shall deem necessary or advisable in its servicing of
automotive receivables, which may include reasonable efforts to realize upon any
recourse to Dealers and selling the Financed Vehicle at a public or private
sale. The foregoing shall be subject to the provision that, in any case in which
the 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 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 INSURANCE.
(a) The Servicer may sue to enforce or collect upon the Insurance
Policies, in its own name, if possible, or as agent of the Trust. If the
Servicer elects to commence a legal proceeding to enforce an Insurance Policy,
the act of commencement shall be deemed to be an automatic assignment of the
rights of the Trust under such Insurance Policy to the Servicer for purposes of
collection only. If, however, in any enforcement suit or legal proceeding it is
held that the Servicer may not enforce an Insurance Policy on the grounds that
it is not a real party in interest or a holder entitled to enforce the Insurance
Policy, the Trustee, on behalf of the Trust, at the Servicer's expense, or the
Seller, at the Seller's expense, shall take such steps as the Servicer deems
necessary to enforce such Insurance Policy, including bringing suit in its name
or the name of the Trustee for the benefit of the Certificateholders.
(b) The Servicer shall maintain a vendor's single interest or other
collateral protection insurance policy with respect to all Financed Vehicles
("Collateral Insurance") which policy by its terms insures against physical
damage in the event any Obligor fails to maintain physical damage insurance with
respect to the related Financed Vehicles. The Seller will be the named insured
under all policies of Collateral Insurance. The Servicer shall maintain
Collateral Insurance at all times unless the Certificate Insurer otherwise
consents in writing.
(c) Costs incurred by the Servicer in maintaining Collateral Insurance
shall be paid by the Servicer.
SECTION 4.5 MAINTENANCE OF SECURITY INTEREST IN FINANCED VEHICLES.
The Servicer shall, in accordance with its customary servicing
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The Trustee hereby authorizes the Servicer to take
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such steps as are necessary to re-perfect such security interest on behalf of
the Trust in the event of the relocation of a Financed Vehicle or for any other
reason. In the event that the assignment of a Receivable to the Trust 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
Trust a perfected security interest in the related Financed Vehicle, the Seller
hereby agrees on behalf of itself and the other Lender that the listing of the
applicable Lender as the secured party on the certificate of title is in its
capacity as agent of the Trust.
SECTION 4.6 COVENANTS OF SERVICER.
(a) The Servicer shall not release the Financed Vehicle securing any
Receivable from the security interest granted by such Receivable in whole or in
part except in the event of payment in full by or on behalf of the Obligor
thereunder or repossession, nor shall the Servicer impair the rights of the
Trust or the Certificateholders in the Receivables, nor shall the Servicer
change the amount of the scheduled payment under a Receivable (except for an
extension permitted pursuant to Section 4.2) or change the APR of or the Amount
Financed under a Receivable, nor shall the Servicer fail to comply with the
provisions of any Insurance Policy, if the failure to so comply would impair the
protection or benefit to be afforded by such Insurance Policy.
(b) COMPLIANCE WITH APPLICABLE LAWS. The Servicer shall comply with 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, the failure to comply with
which may materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this Agreement, the
Indemnification Agreement or the Certificates.
(c) CORPORATE EXISTENCE. The Servicer shall maintain its corporate
existence and shall at all times continue to be duly organized under the laws of
its jurisdiction of incorporation and duly qualified and duly authorized and
shall conduct its business in accordance with the terms of its charter and
bylaws; provided, however, that the Servicer shall not be required to maintain
its existence as a federally chartered thrift if the board of directors of the
Servicer shall determine that the preservation of such status is no longer
desirable and that the loss thereof is not disadvantageous in any material
respect to the Certificateholders or the Certificate Insurer.
(d) FINANCIAL STATEMENTS; ACCOUNTANTS' REPORTS; OTHER INFORMATION. The
Servicer shall keep or cause to be kept in reasonable detail books and records
of account of its assets and business, including, but not limited to, books and
records
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relating to this Agreement. The Servicer shall furnish or cause to be furnished
to the Certificate Insurer:
(i) ANNUAL FINANCIAL STATEMENTS. As soon as available, and
in any event within 120 days after the close of each fiscal year of the
Servicer, the audited consolidated statements of financial condition of the
Servicer and its subsidiaries as of the end of such fiscal year and the
related audited consolidated statements of operations, shareholders' equity
and cash flows for such fiscal year, all in reasonable detail and stating
in comparative form the respective figures for the corresponding date and
period in the preceding fiscal year, prepared in accordance with generally
accepted accounting principles, consistently applied, and accompanied by
the audit opinion of the Servicer's independent accountants (which shall be
a nationally recognized independent public accounting firm or otherwise
acceptable to the Certificate Insurer).
(ii) QUARTERLY FINANCIAL STATEMENTS. As soon as available,
and in any event within 90 days after each of the first three fiscal
quarters of each fiscal year of the Servicer, the unaudited consolidated
statements of financial condition of the Servicer and its subsidiaries as
of the end of such fiscal quarter and the related unaudited consolidated
statements of operations, shareholders' equity and cash flows for such
fiscal quarter, all in reasonable detail and stating in comparative form
the respective figures for the corresponding date and period in the
preceding fiscal year, prepared in accordance with generally accepted
accounting principles, consistently applied.
(iii) CERTAIN INFORMATION. Upon the reasonable request of the
Certificate Insurer, the Servicer shall promptly provide copies of any
requested proxy statements, financial statements, reports and registration
statements which the Servicer files with, or delivers to, the Securities
and Exchange Commission or any national securities exchange.
All financial statements specified in clause (i) above shall be
furnished in consolidated form for the Servicer and its subsidiaries in the
event the Servicer shall consolidate its financial statements with its
subsidiaries.
The Certificate Insurer, by the issuance of the Certificate Insurance
Policy, agrees that it and its agents, accountants and attorneys shall keep
confidential all financial statements, reports and other information delivered
by the Servicer pursuant to this Section 4.6(d).
Nothing in this Section shall be construed to apply to such
information delivered by the Certificate Insurer to any reinsurer or potential
reinsurer, rating agency or regulator of the Certificate Insurer.
(e) MAINTENANCE OF INSURANCE. The Servicer shall maintain with a
responsible company, and at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy in a minimum amount generally maintained
by prudent federally chartered thrift
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institutions engaged in the servicing of automotive receivables and having
servicing portfolios of a similar size.
(f) ACCESS TO RECORDS; DISCUSSIONS WITH OFFICERS AND ACCOUNTANTS.
On an annual basis, or upon the occurrence of (x) an Servicer Default, (y) an
event that could have a material adverse effect on the ability of the Servicer
to perform its obligations under this Agreement or the Certificates, or (z) an
event that could have a material adverse effect on the validity or
enforceability of, this Agreement or the Certificates, the Servicer shall, upon
the reasonable request of the Certificate Insurer, permit the Certificate
Insurer or its authorized agents:
(i) to discuss the affairs, finances and accounts of the
Servicer with the chief operating officer and the chief financial officer
of the Servicer, in each case, to the extent related to the Receivables, or
the duties of the Servicer hereunder; and
(ii) with the Servicer's consent, which consent shall not be
unreasonably withheld, to discuss the affairs, finances and accounts of the
Servicer with the Servicer's independent accountants, in each case, to the
extent related to the Receivables, or the duty of the Servicer hereunder,
provided that an officer of the Servicer shall have the right to be present
during such discussions.
Such inspections and discussions shall be conducted during normal
business hours and shall not unreasonably disrupt the business of the Servicer.
The Certificate Insurer, by the issuance of the Certificate Insurance
Policy, agrees that it and its shareholders, directors, agents, accountants and
attorneys shall keep confidential any matter of which it becomes aware through
such inspections or discussions (unless readily available from public sources),
except as may be otherwise required by regulation, law or court order or
requested by appropriate governmental authorities or as necessary to preserve
its rights or security under or to enforce this Agreement, provided that the
foregoing shall not limit the right of the Certificate Insurer to make such
information available to its regulators, securities rating agencies, reinsurers,
credit and liquidity providers, counsel and accountants. If the Certificate
Insurer is requested or required (by oral questions, interrogatories, requests
for information or documents subpoena, civil investigative demand or similar
process) to disclose any information of which it becomes aware through such
inspections or discussions, the Certificate Insurer will promptly notify the
Servicer of such request(s) so that the Servicer may seek an appropriate
protective order and/or waive the Certificate Insurer's compliance with the
provisions of this Agreement. If, in the absence of a protective order or the
receipt of a waiver hereunder, the Certificate Insurer is, nonetheless, in the
opinion of its counsel, compelled to disclose such information to any tribunal
or else stand liable for contempt or suffer other censure or significant
penalty, the Certificate Insurer may disclose such information to such tribunal
that the Certificate Insurer is compelled to disclose, provided that a copy of
all information disclosed is provided to the Servicer promptly upon such
disclosure.
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(g) NOTICE OF MATERIAL EVENTS. The Servicer shall promptly inform the
Certificate Insurer and the Rating Agencies in writing of the receipt of notice
of any proceeding by any regulatory body 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 or
the Certificates.
(h) MAINTENANCE OF LICENSES. The Servicer shall maintain all licenses,
permits, charters and registrations which are material to the performance of its
obligations under this Agreement or the Certificates.
SECTION 4.7 PURCHASE OF RECEIVABLES UPON BREACH.
The Servicer, the Trustee or the Certificate Insurer shall inform the
other parties promptly, in writing, upon the discovery of any breach by the
Servicer of its obligations under Section 4.5 or 4.6; provided, that the Trustee
shall have no duty to inquire concerning, or to investigate, the breach of any
of such obligations. Unless the breach shall have been cured by the last day of
the Collection Period following the Collection Period during which the Servicer
becomes aware of, or receives written notice of such breach, the Servicer shall
purchase as of such day (or, at the Servicer's option, as of the last day of the
month in which such breach was discovered) any Receivable materially and
adversely affected by such breach and any Receivable in which the interest of
the Trust or of the Certificate Insurer is materially and adversely affected by
such breach (unless such Receivable is otherwise being purchased pursuant to
Section 3.2 or 11.2). In consideration of the purchase of such Receivable, the
Servicer shall remit the Purchase Amount with respect to such Receivable in the
manner specified in Section 5.3. The sole remedy of the Trustee, the Trust, the
Certificateholders or the Certificate Insurer with respect to a breach pursuant
to Section 4.5 or 4.6 shall be to require the Servicer to purchase Receivables
pursuant to this Section 4.7. The Servicer shall notify the Certificate Insurer
of any purchase of a Receivable pursuant to this Section 4.7.
SECTION 4.8 SERVICING FEE; ADDITIONAL FEES; INVESTMENT EARNINGS.
(a) The servicing fee for a Collection Period shall equal the Monthly
Servicing Fee (except that in the case of a successor Servicer, the servicing
fee shall equal such amount as is arranged in accordance with Section 9.2).
(b) The Servicer shall deposit into the Collection Account all Additional
Fees, which shall be included in Available Funds.
(c) Investment earnings on the Collection Account and the Certificate
Account, if any, shall be deposited into such Account and shall be included in
Available Funds. Investment earnings on the Reserve Account shall be paid to the
Class B Certificateholders and to the Seller or its designee as provided in
Section 5.1. Investment earnings on the Yield Maintenance Account shall be paid
to the Seller or its designee as provided in Section 5.1.
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(d) The Monthly Servicing Fee and Liquidation Expenses may be retained by
the Servicer from the aggregate collections on the Receivables during the
related Collection Period, prior to the deposit of such collections in the
Collection Account pursuant to Section 5.2; in no event shall the Servicer
retain, with respect to any Collection Period, an amount of base servicing
compensation in excess of the Monthly Servicing Fee, even if multiple payments
("advance payments" or "payaheads") are received from the Obligors during such
Collection Period.
SECTION 4.9 SERVICER'S CERTIFICATE.
On or before each Determination Date, the Servicer shall deliver to
the Trustee and the Certificate Insurer by 12:00 pm New York City time a
Servicer's Certificate in the form of Exhibit E attached hereto containing all
information necessary to make the distributions pursuant to Section 5.4, to make
any transfers of funds pursuant to Sections 5.1, 5.2 and 5.6, and to make any
demands on the Certificate Insurance Policy pursuant to Section 5.5 for the
Collection Period preceding the date of such Servicer's Certificate and all
information necessary for the Trustee to send statements to Certificateholders
pursuant to Section 5.7. Receivables purchased by the Servicer or repurchased by
the Seller as of the last day of such Collection Period shall be identified by
the Seller's account number with respect to such Receivable (as specified in the
Schedule of Receivables).
SECTION 4.10 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT.
(a) The Servicer shall deliver to the Trustee and the Certificate
Insurer, on or before December 31 of each year, beginning December 31, 1998, an
Officers' Certificate stating that (i) a review of the activities of the
Servicer during the preceding 12-month period ended September 30 of such year
(or such longer period since the date of this Agreement) and of its performance
under this Agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof.
(b) The Servicer shall deliver to the Trustee and the Certificate
Insurer, promptly after having obtained knowledge thereof, but in no event later
than one Business Day thereafter, written notice in an Officers' Certificate of
any event which with the giving of notice or lapse of time, or both, would
become a Servicer Default under clause (i) of Section 9.1. The Seller shall
deliver to the Trustee and the Certificate Insurer, promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an Officers' Certificate of any event which with
the giving of notice or lapse of time, or both, would become a Servicer Default
under any other clause of Section 9.1.
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SECTION 4.11 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REPORT.
The Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer, to deliver to
the Trustee, with a copy to the Rating Agencies and the Certificate Insurer, on
or before December 31 of each year concerning the 12-month period ended
September 30 of such year (or such longer period since the date of this
Agreement), beginning December 31, 1998, a report addressed to the Board of
Directors of the Servicer, the Trustee and the Certificate Insurer, to the
effect that such firm has read the monthly Servicer's Certificates delivered
pursuant to Section 4.9 with respect to each Collection Period during such one-
year (or longer) period and reviewed the servicing of the Receivables by the
Servicer and that such review (1) included tests relating to automobile, light
duty truck and van loans serviced for others in accordance with the requirements
of the Uniform Single Attestation Program for Mortgage Bankers, to the extent
the procedures in such program are applicable to the servicing obligations set
forth in this Agreement, and (2) except as described in the report, disclosed no
exceptions or errors in the records relating to automobile, light duty truck and
van loans serviced for others that, in the firm's opinion, paragraph four of
such program requires such firm to report.
The report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
SECTION 4.12 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
RECEIVABLES.
The Servicer shall provide (and shall require the Sub-Servicer to
provide) to the Certificateholders and the Trustee access to the Receivables
Files in such cases where the Certificateholder or the Trustee shall be required
by applicable statutes or regulations to review such documentation. The
Certificate Insurer shall be afforded such access at any time, subject to the
requirements of the next sentence. Access shall be afforded without charge, but
only upon reasonable request and during the normal business hours at the
respective offices of the Servicer. Nothing in this Section 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 4.12.
SECTION 4.13 SERVICER EXPENSES.
The Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder, including fees and disbursements of
independent accountants and taxes imposed on the Servicer.
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SECTION 4.14 REPORTS TO CERTIFICATEHOLDERS.
The Trustee shall provide to any Certificateholder, who so requests
in writing (addressed to the Corporate Trust Office) and the Rating Agencies a
copy of any certificate described in Section 4.9, or the annual statement
described in Section 4.10, or the annual report described in Section 4.11. The
Trustee may require the Certificateholder to pay a reasonable sum to cover the
cost of the Trustee's compliance with such request.
ARTICLE V
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS
SECTION 5.1 ESTABLISHMENT OF ACCOUNTS.
(a) The Trustee, on behalf of the Trust, shall establish the Collection
Account and the Certificate Account as segregated trust accounts in the name of
the Trust, for the benefit of Certificateholders and the Certificate Insurer,
with the Corporate Trust Office of the Trustee. The Servicer shall direct the
Trustee to invest the amounts in the Collection Account and the Certificate
Account in Eligible Investments that, with respect to the Collection Account,
mature not later than the Business Day prior to the next succeeding
Determination Date or, with respect to the Certificate Account, mature not later
than the next succeeding Deposit Date, and to hold such Eligible Investments to
maturity. The Collection Account and the Certificate Account shall always be
maintained as Eligible Accounts. The Trustee may trade with itself or an
affiliate in the purchase or sale of Eligible Investments.
(b) (i) The Seller shall establish and maintain the Reserve Account and
the Yield Maintenance Account in the name of the Trustee, each as an Eligible
Account for the benefit of the Trust, the Certificateholders and the Certificate
Insurer. The Reserve Account and the Yield Maintenance Account shall not be
property of the Trust.
(ii) Funds on deposit in the Reserve Account and the Yield
Maintenance Account shall be invested by the Trustee in Eligible
Investments, in each case selected by the Servicer by a written direction
or by oral direction, promptly confirmed in writing, which shall certify
that any such investment is authorized by this Section 5.1(b); provided,
however, the Trustee shall not be liable for any loss arising from such
investment in Eligible Investments (other than as obligor under any
Eligible Investment). All such Eligible Investments shall be held by the
Trustee for the benefit of the beneficiaries of the Reserve Account and the
Yield Maintenance Account; provided that on each Distribution Date all
interest and other investment income (net of investment losses and
expenses) on funds on deposit in the Yield Maintenance Account shall be
withdrawn from the Yield Maintenance Account at the direction of the
Servicer and shall be paid to the Seller or its designee and all interest
and other investment income (net of investment losses and expenses) on
funds on deposit in the Reserve Account shall be
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withdrawn from the Reserve Account at the direction of the Servicer and
shall be paid to the Trustee for distribution to the Class B
Certificateholders (to the extent of the Class B Reserve Account Investment
Earnings) for the payment of Class B Monthly Deficiency Interest and any
unpaid Class B Deficiency Interest Carryover Shortfall, as provided in
Section 5.4(a), and the remainder to the Seller or its designee. Funds on
deposit in the Reserve Account and the Yield Maintenance Account shall be
invested in Eligible Investments that will mature so that such funds will
be available at the close of business on the related Deposit Date. Funds
deposited in the Reserve Account and the Yield Maintenance Account on the
day which immediately precedes a Deposit Date upon the maturity of any
Eligible Investments are not required to be (but may be) invested overnight
in accordance with the investment provisions contained herein. The Seller
shall treat the funds and other assets in the Reserve Account (other than
Class B Retained Principal and any amounts deposited specifically for the
payment of Class B Monthly Deficiency Interest and any unpaid Class B
Deficiency Interest Carryover Shortfall as provided in Section 5.4(a)(ix))
and the Yield Maintenance Account as its own for federal, state and local
income tax and franchise tax purposes and shall report on its tax returns
all income and gain from the Reserve Account (other than the Class B
Reserve Account Investment Earnings) and the Yield Maintenance Account.
Each Class B Certificateholder shall treat its pro rata interest in the
Class B Retained Principal as its own for federal, state and local income
tax and franchise tax purposes and shall report on its tax returns its pro
rata interest in Class B Reserve Account Investment Earnings.
(iii) The Trustee agrees as follows with respect to the
Eligible Investments, and the proceeds thereof, held from time to time in
the Reserve Account and the Yield Maintenance Account:
(A) any Eligible Investment that is held in deposit
accounts shall be subject to the exclusive custody and control
of the Trustee, and the Trustee shall have sole signature
authority with respect thereto;
(B) any Eligible Investment that constitutes Physical
Property (as defined in the definition of Delivery) shall be
delivered to the Trustee in accordance with paragraph (a) of the
definition of "Delivery" and shall be held, pending maturity or
disposition, solely by the Trustee or a securities intermediary
(as such term is defined in Section 8-102 (14) of the UCC)
acting solely for the Trustee;
(C) any Eligible Investment that is a book-entry
security held through the Federal Reserve System pursuant to
federal book-entry regulations shall be delivered in accordance
with paragraph (b) of the definition of "Delivery" and shall be
maintained by the Trustee, pending maturity or disposition,
through continued
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book entry registration of such Eligible Investment as described
in such paragraph; and
(D) any Eligible Investment that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Trustee in accordance
with paragraph (c) of the definition of "Delivery" and shall be
maintained by the Trustee, pending maturity or disposition,
through continued registration of the Trustee's (or its
nominee's) ownership of such security directly or through one or
more securities intermediaries acting solely for the Trustee.
(iv) The Servicer shall have the power, revocable by the
Trustee, to instruct the Trustee to make withdrawals and payments from the
Reserve Account and the Yield Maintenance Account for the purpose of making
distributions of funds on deposit in such Accounts in accordance with the
provisions hereof.
(c) In the event of any change of law regarding matters relating to the
perfection of security interests in any Account, the amounts or any Eligible
Investments held therein, the Seller shall cause to be furnished to the Trustee,
the Certificate Insurer and each Rating Agency, an Opinion of Counsel addressing
such matters and if necessary, the Seller shall cooperate with the Trustee in
taking all actions necessary to comply with the change in law.
SECTION 5.2 COLLECTIONS.
(a) The Servicer shall remit to the Collection Account within two
Business Days following receipt thereof all payments by or on behalf of the
Obligors on the Receivables and all Liquidation Proceeds (including payments
made under any of the Insurance Policies or the Collateral Insurance to the
extent applicable to payments due on the Receivables), both as collected during
the Collection Period, which deposit may be net of (i) the Servicer's actual
out-of-pocket expenses reasonably incurred with respect to Defaulted Receivables
or Financed Vehicles ("Liquidation Expenses"), which shall be paid from amounts
actually recovered with respect to any Defaulted Receivable or Financed Vehicle,
(ii) charge backs attributable to errors in posting, returned checks, or rights
of offset for amounts that should not have been paid or that must be refunded as
the result of a successful claim or defense under bankruptcy or similar laws and
(iii) the Monthly Servicing Fee, as provided in Section 4.8. The amounts
specified in clauses (i), (ii) and (iii), to the extent deposited into the
Collection Account, shall not be included in Available Funds and will be
withdrawn from the Collection Account and paid to the Servicer from time to
time.
(b) On the Determination Date in each month, the Servicer shall instruct
the Trustee to withdraw from the Collection Account the amount collected with
respect to Receivables, including Additional Fees and Liquidation Proceeds,
received during the Collection Period and investment earnings related to such
Determination Date, net of any amounts specified
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in clauses (i), (ii) and (iii) of Section 5.2(a), to the extent deposited
therein, and deposit such amount in immediately available funds or by wire
transfer in immediately available funds into the Certificate Account.
(c) On or before each Determination Date, the Servicer shall determine
(i) the Available Funds and (ii) the amount of funds necessary to make the
distributions required pursuant to clauses (i) through (x) of Section 5.4(a) on
the next Distribution Date. The Available Funds, Yield Maintenance Withdrawal
Amount, Reserve Account Withdrawal Amount, and any Insured Payment shall be
deposited into the Certificate Account. The Servicer shall by a Servicer's
Certificate notify the Trustee of such amounts by telecopy to the Corporate
Trust Office (or such other number as the Trustee may from time to time
provide), followed promptly by mailing such notice to the Trustee at the
Corporate Trust Office, and the Trustee shall promptly provide such notice to
the Certificate Insurer.
SECTION 5.3 PURCHASE AMOUNTS.
On the Determination Date following each Collection Period, the Servicer or
the Seller, as the case may be, shall remit to the Certificate Account the
aggregate Purchase Amount for such Collection Period pursuant to Sections 3.2,
4.2 and 4.7.
SECTION 5.4 DISTRIBUTIONS.
(a) On each Distribution Date, the Trustee shall apply or cause to be
applied the sum of (x) the Available Funds (after withdrawing amounts deposited
in error and Liquidation Proceeds relating to Purchased Receivables) for the
related Collection Period, including the Yield Maintenance Withdrawal Amount for
such Distribution Date, (y) the Reserve Account Withdrawal Amount for such
Distribution Date and (z) the amount of any Insured Payment from the Certificate
Account, to make the following distributions in the following order of priority
to the extent of the funds available from the specified sources:
(i) to the Trustee, an amount equal to the Monthly Trustee's Fee,
and any overdue Monthly Trustee's Fee, such amount to be paid from
Available Funds;
(ii) to the Class A Certificateholders, pro rata, the Class A
Monthly Interest and any unpaid Class A Interest Carryover Shortfall, such
amount to be paid from Available Funds (after giving effect to the
application of Available Funds described in clauses (i) above); and if such
Available Funds are insufficient, the Class A Certificateholders shall
receive such deficiency from any monies deposited into the Certificate
Account from the Reserve Account, and, if such amounts are still
insufficient, from any Insured Payment in respect of the Deficiency Amount;
(iii) to the Certificate Insurer, by wire transfer of immediately
available funds to the account designated in writing by the Certificate
Insurer, the Premium Amount and any overdue Premium Amount, plus accrued
interest on any overdue Premium Amount at the Late Payment Rate, such
amount to be paid from Available
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Funds (after giving effect to the application of Available Funds described
in clauses (i) and (ii) above);
(iv) to the Certificate Insurer, by wire transfer of immediately
available funds to the account designated in writing by the Certificate
Insurer, the Reimbursement Amount, if any, then owed to the Certificate
Insurer, such amount to be paid from Available Funds (after giving effect
to the application of Available Funds described in clauses (i), (ii) and
(iii) above);
(v) to the Class B Certificateholders, pro rata, the Class B
Monthly Interest and any unpaid Class B Interest Carryover Shortfall, such
amount to be paid from Available Funds (after giving effect to the
application of Available Funds described in clauses (i), (ii), (iii) and
(iv) above); and if such Available Funds are insufficient, the Class B
Certificateholders shall receive such deficiency from any monies deposited
into the Certificate Account from the Reserve Account (after giving effect
to the application of such monies described in clause (ii) above);
(vi) to the Class A Certificateholders, pro rata, the Class A
Monthly Principal and any unpaid Class A Principal Carryover Shortfall,
such amount to be paid from Available Funds (after giving effect to the
application of Available Funds described in clauses (i), (ii), (iii), (iv)
and (v) above); and if such Available Funds are insufficient the Class A
Certificateholders shall receive such deficiency from any monies deposited
into the Certificate Account from the Reserve Account (after giving effect
to the application of such monies described in clauses (ii) and (v) above),
and, if such amounts are still insufficient, from any Insured Payment in
respect of the Deficiency Amount to the extent of the Insured Class A
Principal Insufficiency Amount;
(vii) to the Reserve Account, the Reserve Account Deposit Amount for
such Distribution Date, such amount to be paid from Available Funds (after
giving effect to the Application of Available Funds described in clauses
(i), (ii), (iii), (iv), (v) and (vi) above);
(viii) to the Class B Certificateholders, pro rata, the Class B
Monthly Principal and any unpaid Class B Principal Carryover Shortfall
(other than the portion thereof equal to the Class B Retained Principal for
such Distribution Date), such amount to be paid from Available Funds (after
giving effect to the application of Available Funds described in clauses
(i), (ii), (iii), (iv), (v), (vi) and (vii) above);
(ix) to the Reserve Account, the amount of any Class B Monthly
Deficiency Interest and any unpaid Class B Deficiency Interest Carryover
Shortfall for such Distribution Date (to the extent such amounts exceed the
Class B Reserve Account Investment Earnings for such Distribution Date),
such amount to be paid from Available Funds (after giving effect to the
application of Available Funds described in clauses (i), (ii), (iii), (iv),
(v), (vi), (vii) and (viii) above); and
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(x) to the Seller or its designee, the aggregate amount remaining
in the Certificate Account.
If the Seller exercises the purchase option on any Distribution Date
pursuant to Section 11.2, the Optional Purchase Price shall be deposited into
the Certificate Account on the Determination Date related to such Distribution
Date.
On each Distribution Date, the Trustee shall apply or cause to be
applied the sum of (A) Class B Reserve Account Investment Earnings for such
Distribution Date, (B) the amount deposited into the Reserve Account
specifically for the payment of Class B Monthly Deficiency Interest and any
unpaid Class B Deficiency Interest Carryover Shortfall pursuant to clause (ix)
of this Section 5.4(a), and (C) any surplus released from the Reserve Account
pursuant to Section 5.6(a) in excess of the amount specified in clause (B) of
this sentence, to the payment to the Class B Certificateholders, pro rata, of
the Class B Monthly Deficiency Interest and any unpaid Class B Deficiency
Interest Carryover Shortfall for such Distribution Date.
In making such distributions, the Trustee shall be entitled to rely
upon (without investigation, confirmation or recalculation) all information and
calculations contained in the Servicer's Certificate delivered to the Trustee
pursuant to Section 4.9.
(b) All monthly distributions to Certificateholders shall be made by wire
transfer (if wiring instructions are received from the Certificateholders), or,
in the absence of such instructions, by check mailed to each Certificateholder
of record on the preceding Record Date at its address appearing on the
Certificate Register, or by such other means as the Certificateholder and the
Trustee shall agree. Payments to the Certificate Insurer or the Seller or its
designee shall be made by wire transfer based on instructions received by the
Trustee from such person. Notwithstanding the foregoing, the final payment on
each Certificate shall be made only against the presentation and surrender of
the Certificate at the office or agency then maintained by the Trustee.
(c) Each Class A Certificateholder shall promptly notify the Trustee and
the Certificate Insurer in writing upon the receipt of a nonappealable court
order of a court having competent jurisdiction seeking to recover payments to
Class A Certificateholders or the Trust as a voidable preference by a trustee in
bankruptcy pursuant to the United States Bankruptcy Code and shall enclose a
copy of such order with such notice to the Trustee and the Certificate Insurer.
(d) If the Servicer has failed to provide the Trustee with the notice
required pursuant to Section 5.2, the Trustee may calculate Class A Monthly
Interest and Class B Monthly Interest and apply funds, if any, in the Collection
Account as of the last day of the prior Collection Period, plus in the case of
the Class A Certificates any payments from the Certificate Insurer, to make a
distribution of Class A Monthly Interest and Class B Monthly Interest to the
Certificateholders.
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(e) Notwithstanding the reduction of the Certificate Principal Balance of
any Class to zero, prior to the termination of the Trust and final distribution
in respect of amounts payable on the Certificates of all Classes, any Interest
Carryover Shortfall or Principal Carryover Shortfall with respect to such Class
will continue as obligations of the Trust payable from Available Funds and funds
deposited into the Certificate Account from the Reserve Account as provided in
this Section 5.4.
SECTION 5.5 CERTIFICATE INSURANCE POLICY.
(a) By 12:00 noon New York City time on each Determination Date the
Trustee shall, based solely on the information set forth in the related
Servicer's Certificate, determine the amount of Available Funds (including the
Yield Maintenance Withdrawal Amount) and Reserve Account Withdrawal Amount
available to pay Class A Monthly Interest, any unpaid Class A Interest Carryover
Shortfall, Class A Monthly Principal and any unpaid Class A Monthly Principal
Carryover Shortfall with respect to the immediately following Distribution Date.
(b) In the event that the Certificate Insurer does not make available to
the Trustee in accordance with the terms of the Certificate Insurance Policy the
sum of (i) the amount, if any, by which the sum of the Class A Monthly Interest
and any unpaid Class A Interest Carryover Shortfall for any Distribution Date
exceeds the sum of (A) the Available Funds available to pay such Class A Monthly
Interest and Class A Interest Carryover Shortfall on such Distribution Date and
(B) the Reserve Account Withdrawal Amount available to pay such amounts for such
Distribution Date plus (ii) the Insured Class A Principal Insufficiency Amount
for such Distribution Date (the "Deficiency Amount") by 12:00 p.m. New York City
time on the third Business Day preceding the related Distribution Date (the
"Claim Date"), the Trustee shall complete a Notice in the form of Exhibit A
attached to the Certificate Insurance Policy and submit such notice to the
Certificate Insurer no later than 12:00 p.m. New York City time on the Claim
Date as a claim for an Insured Payment in an amount equal to such Deficiency
Amount. The Notice shall specify the amount of the Insured Payment and shall
constitute a claim for an Insured Payment pursuant to the Certificate Insurance
Policy.
(c) The Trustee shall report to the Seller and the Certificate Insurer
with respect to the amounts then held in each Account held by the Trustee and
the identity of the investments included therein, as the Seller or the
Certificate Insurer may from time to time request. Without limiting the
generality of the foregoing, the Trustee shall, at the request of the Seller or
the Certificate Insurer, transmit promptly to the Certificate Insurer and the
Seller copies of all accountings of receipts in respect of the Receivables
furnished to it by the Servicer.
(d) The Trustee shall (i) receive as attorney-in-fact of the Class A
Certificateholders any Insured Payment from the Certificate Insurer and (ii)
disburse the same to such Class A Certificateholders as set forth in Section
5.4. Insured Payments disbursed by the Trustee from proceeds of the Certificate
Insurance Policy shall not be considered payment by the Trust with respect to
the Class A Certificates for purposes of determining the rights of the
Certificate Insurer, and the Certificate Insurer shall become the owner of such
unpaid amounts due
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from the Trust in respect of Insured Payments as the deemed assignee of such
Class A Certificateholders, as hereinafter provided. The Trust and the Trustee
hereby agree on behalf of each Class A Certificateholder for the benefit of the
Certificate Insurer that to the extent the Certificate Insurer pays Insured
Payments, either directly or indirectly (as by paying through the Trustee), to
the Class A Certificateholders, the Certificate Insurer shall be subrogated to
the rights of the Class A Certificateholders with respect to such Insured
Payments, shall be deemed to the extent of the Insured Payments so made to be a
Class A Certificateholder and shall receive future distributions until all such
Insured Payments by the Certificate Insurer have been fully reimbursed, as
described in the following paragraph. To evidence such subrogation, the Trustee
shall note the Certificate Insurer's rights as subrogee on the Certificate
Register upon receipt from the Certificate Insurer of proof of the payment of
any Insured Payment, after making the distribution on any such future
Distribution Date to the Class A Certificateholders other than to the
Certificate Insurer.
The Certificate Insurer shall be entitled to receive the related
Reimbursement Amount pursuant to Section 5.4(a) with respect to each Insured
Payment made by the Certificate Insurer. The Trustee hereby agrees on behalf of
each Class A Certificateholder and the Trust for the benefit of the Certificate
Insurer that it recognizes that to the extent the Certificate Insurer makes
Insured Payments, either directly or indirectly (as by paying through the
Trustee), to the Class A Certificateholders, or to the extent any Premium Amount
or any interest thereon remains unpaid, as the case may be, the Certificate
Insurer shall be entitled to receive the related Reimbursement Amount or Premium
Amount or any interest thereon pursuant to Section 5.4(a). It is understood and
agreed that the intention of the parties is that the Certificate Insurer shall
not be entitled to reimbursement on any Distribution Date for amounts previously
paid by it unless on such Distribution Date the Class A Certificateholders shall
also have received the full amount of the Class A Monthly Interest and any
unpaid Class A Interest Carryover Shortfall for such Distribution Date.
(e) Each Class A Certificateholder which pays any Preference Amounts
theretofore received by such Class A Certificateholder on account of such Class
A Certificate will be entitled to receive reimbursement for such amounts from
the Certificate Insurer in accordance with the terms of the Certificate
Insurance Policy, but only after (i) delivering a copy to the Certificate
Insurer of a final, nonappealable order (a "Preference Order") of a court having
competent jurisdiction under the United States Bankruptcy Code demanding payment
of such amount to the bankruptcy court and (ii) irrevocably assigning such Class
A Certificateholder's claim with respect to such Preference Order to the
Certificate Insurer in such form as is required by the Certificate Insurer. In
no event shall the Certificate Insurer pay more than one Insured Payment in
respect of any Preference Amount. Consequently, the Trustee shall not be
entitled to reimbursement with respect to any Preference Order relating to the
Class A Certificateholder's receipt of funds representing Insured Payments made
by the Certificate Insurer in respect of such Distribution Date.
The Trustee, for itself and on behalf of the Class A
Certificateholders, agrees that the Certificate Insurer may at any time during
the continuation of any proceeding relating to a Preference Order direct all
matters relating to such Preference Order, including, without
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limitation, the direction of any appeal of any order relating to such Preference
Order and the posting of any surety, supersedeas or performance bond pending any
such appeal. In addition and without limitation of the foregoing, the
Certificate Insurer shall be subrogated, to the extent of Insured Payments, to
the rights of the Seller, the Servicer, the Trustee and each Class A
Certificateholder in the conduct of any such preference claim, including,
without limitation, all rights of any party to any adversarial proceeding or
action with respect to any court order issued in connection with any such
preference claim.
(f) The Trustee shall keep a complete and accurate record of the amount
of interest and principal paid in respect of any Class A Certificate from moneys
received under the Certificate Insurance Policy. The Certificate Insurer shall
have the right to inspect such records at reasonable times during normal
business hours upon one Business Day's prior notice to the Trustee.
(g) The Certificate Insurer shall have the right to give participations
in its rights under this Agreement and to enter into contracts of reinsurance
with respect to the Certificate Insurance Policy; provided that no such grant of
participation shall operate to relieve the Certificate Insurer of liability on
the Certificate Insurance Policy, and provided further that no such
participation or contract of reinsurance shall require the Servicer, the Trustee
or the Seller to deal with any person other than the Certificate Insurer.
SECTION 5.6 RESERVE ACCOUNT AND YIELD MAINTENANCE ACCOUNT.
(a) On the Closing Date, the Seller shall deposit the Reserve Initial
Deposit into the Reserve Account. Amounts held from time to time in the Reserve
Account shall be held by the Trustee for the benefit of the Seller, subject to
the first priority security interest granted under Section 2.2 hereof to the
Trustee, for the benefit of the Certificateholders and the Certificate Insurer,
but the Reserve Account shall not be an asset of the Trust.
The Seller may, from time to time after the date hereof, request each
Rating Agency and the Certificate Insurer to approve a formula for determining
the Specified Reserve Balance that is different from the formula set forth
herein, which may result in a decrease in the amount of the Specified Reserve
Balance or change the manner by which the Reserve Account is funded.
Notwithstanding any other provision of this Agreement, if the Certificate
Insurer consents and each Rating Agency then rating the Certificates notifies
the Trustee, the Certificate Insurer and the Seller in writing that the use of
any such new formula, and any decrease in the amount of the Specified Reserve
Balance or change in the manner by which the Reserve Account is funded, will not
result in the qualification, reduction or withdrawal of its then current rating
of the Class A Certificates or the Class B Certificates, as applicable, then the
Specified Reserve Balance will be determined in accordance with such new formula
and this Agreement will be amended to reflect such new formula without the
consent of any Certificateholder.
On each Distribution Date (A) if the amount on deposit in the Reserve
Account (excluding the Class B Retained Principal held in the Reserve Account
and any amounts
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deposited into the Reserve Account specifically for the payment of Class B
Monthly Deficiency Interest and any unpaid Class B Deficiency Interest Carryover
Shortfall pursuant to Section 5.4(a)(ix)) is less than the Specified Reserve
Balance, the Trustee shall, after payment of any amounts required to be
distributed pursuant to clauses (i) through (vi) of Section 5.4(a), deposit in
the Reserve Account the Reserve Account Deposit Amount as provided in clause
(vii) of Section 5.4(a), (B) the Trustee shall, after payment of any amounts
required to be distributed or deposited pursuant to clauses (i) through (viii)
of Section 5.4(a), deposit in the Reserve Account (to the extent of funds
available) the amount of any Class B Monthly Deficiency Interest and any unpaid
Class B Monthly Deficiency Interest Shortfall as provided in clause (ix) of
Section 5.4(a), (C) the Trustee shall withdraw from the Reserve Account the
Class B Reserve Account Investment Earnings and apply such amount as provided in
Section 5.4(a), and shall distribute the remaining net investment earnings then
on deposit therein to the Seller or its designee, and (D) if the amount on
deposit in the Reserve Account on any Distribution Date (after giving effect to
all other deposits thereto and withdrawals therefrom to be made on such
Distribution Date) is greater than the Specified Reserve Balance, the Trustee
shall distribute to the Class B Certificateholders, pro rata, an amount equal to
any Class B Monthly Deficiency Interest and any unpaid Class B Deficiency
Interest Carryover Shortfall for such Distribution Date (to the extent such
amounts are not paid from Class B Reserve Account Investment Earnings for such
Distribution Date) and the payment of principal in respect of the Class B
Certificates (to the extent of Class B Retained Principal for such Distribution
Date and any remaining unpaid Class B Monthly Principal and Class B Principal
Carryover Shortfall), and any remaining amount shall be paid to the Seller or
its designee on such Distribution Date.
On the Distribution Date on which the Class A Certificates have been paid
in full, and on each Distribution Date thereafter, funds in the Reserve Account
shall be withdrawn from the Reserve Account and paid to the Class B
Certificateholders, pro rata, in respect of all due and unpaid interest on and
principal of the Class B Certificates.
(b) On each Distribution Date, the Servicer shall instruct the Trustee
(based on the information contained in the Servicer's Certificate delivered on
the related Determination Date) to withdraw the Reserve Account Withdrawal
Amount and other amounts described in Section 5.6(a) from the Reserve Account
and deposit such amounts in the Certificate Account or apply such amounts as
described in Section 5.6(a), as applicable.
(c) On the Closing Date, the Seller shall deposit the Initial Yield
Maintenance Amount into the Yield Maintenance Account. Amounts held from time to
time in the Yield Maintenance Account shall be held by the Trustee for the
benefit of the Seller, subject to the first priority security interest granted
under Section 2.2 hereof to the Trustee, for the benefit of the
Certificateholders and the Certificate Insurer, but the Yield Maintenance
Account shall not be an asset of the Trust.
On each Distribution Date (i) the Trustee shall withdraw the Yield
Maintenance Withdrawal Amount from the Yield Maintenance Account and distribute
such amount pursuant to Section 5.4(a) hereof, (ii) the Trustee shall withdraw
from the Yield Maintenance Account the
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net investment earnings then on deposit therein and distribute such amount to
the Seller or its designee and (iii) if the amount then on deposit in the Yield
Maintenance Account (after giving effect to all withdrawals therefrom to be made
on such Distribution Date) is greater than the Yield Maintenance Amount, the
Trustee shall distribute the amount of such excess to the Seller or its designee
on such Distribution Date.
(d) Amounts properly received by the Servicer, or by the Seller or its
designee, pursuant to this Agreement shall not be available to the Trustee or
the Trust for the purpose of making deposits to the Reserve Account, or making
payments to the Certificateholders, nor shall the Servicer, or the Seller or its
designee, be required to refund any amount properly received by it. Amounts
properly received by the Class B Certificateholders pursuant to this Agreement
shall not be available to the Trustee or the Trust for the purpose of making
deposits to the Reserve Account, or making payments to the Class A
Certificateholders, nor shall the Class B Certificateholders be required to
refund any amount properly received by them.
(e) In the event of any prepayment received on a Receivable during the
related Collection Period the Trustee shall, on or prior to each Distribution
Date, withdraw from the Reserve Account and deposit in the Collection Account an
amount equal to the difference between (x) 30 days' interest at an interest rate
at the related APR on the Principal Balance of such Receivable as of the first
day of the related Collection Period and (y) the interest actually paid by the
Obligor with respect to the Receivable during such Collection Period (such
amount, "Compensating Interest"). In the event the funds in the Reserve Account
are insufficient to fund Compensating Interest, the portion of such
insufficiency allocable to the Class A Certificates shall be covered by drawings
under the Certificate Insurance Policy.
SECTION 5.7 STATEMENTS TO CERTIFICATEHOLDERS
On each Distribution Date, the Trustee shall mail or send by
facsimile to the Certificateholders, the Rating Agencies and the Certificate
Insurer a statement, based on information in the Servicer's Certificate
furnished to the Trustee by the Servicer pursuant to Section 4.9, setting forth
for the Collection Period relating to such Distribution Date the following
information (which in the case of items (i), (ii), (iii) and (x) shall be based
on a Certificate in a principal amount of $1,000):
(i) the amount of the distribution allocable to principal of
each Class of Certificates, including any overdue principal;
(ii) the amount of the distribution allocable to interest of each
Class of Certificates, including any overdue interest;
(iii) the Monthly Servicing Fee and the Monthly Trustee's Fee;
(iv) the amount of any Insured Payments;
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(v) the amount of Interest and Principal Carryover Shortfalls,
if any, with respect to each Class of Certificates on such Distribution
Date and the change in each such amount from the immediately preceding
Distribution Date;
(vi) the remaining balance in the Reserve Account and in the
Yield Maintenance Account, together with the Reserve Account Withdrawal
Amount and the Yield Maintenance Withdrawal Amount, on such Distribution
Date;
(vii) the aggregate Net Losses on the Receivables for the related
Collection Period;
(viii) the Pool Balance and the Pool Factor of each Class as of the
end of the related Collection Period;
(ix) the aggregate Principal Balance of all Receivables which
were delinquent 30 days or more as of the last day of the related
Collection Period;
(x) the Class A Certificate Principal Balance and the Class B
Certificate Principal Balance (after giving effect to any distribution of
principal in respect thereof made on such Distribution Date);
(xi) amounts otherwise distributable to the Class B
Certificateholders that are distributed to the Class A Certificateholders
or deposited into the Reserve Account on such Distribution Date;
(xii) the Delinquency Percentage relating to such Distribution
Date;
(xiii) the aggregate of all Purchase Amounts received on the
related Determination Date;
(xiv) the aggregate amount received with respect to Defaulted
Receivables, including Liquidation Proceeds, during the related Collection
Period; and
(xv) the Reimbursement Amount for such Distribution Date.
Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of this Agreement, the Trustee
shall mail, to each Person who at any time during such calendar year shall have
been a Certificateholder, a statement containing the sum of the amounts
determined in clauses (i), (ii) and (iii) with respect to the applicable Class
for such calendar year or, in the event such Person shall have been a
Certificateholder during a portion of such calendar year, for the applicable
portion of such year, unless substantially comparable information has been
provided to such Certificateholder, for the purposes of such Certificateholder's
preparation of federal income tax returns.
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ARTICLE VI
THE CERTIFICATES
SECTION 6.1 THE CERTIFICATES.
(a) The Class A Certificates and the Class B Certificates shall be
substantially in the form attached hereto as Exhibit B-1 and Exhibit B-2,
respectively. The Class A Certificates shall be issued in denominations of
$1,000 and integral multiples thereof; the Class B Certificates shall be issued
in denominations of $500,000 and integral multiples of $100,000 in excess
thereof; provided, however, that one Class A Certificate may be issued in a
denomination that includes any remaining portion of the Original Class A
Certificate Principal Balance and one Class B Certificate may be issued in a
denomination that includes any remaining portion of the Original Class B
Certificate Principal Balance. The Certificates shall be executed on behalf of
the Trust by manual signature of a Responsible Officer of the Trustee.
Certificates bearing the signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be valid and binding obligations of the Trust, 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 such Certificates.
(b) The Certificates are pass-through securities having the rights
described therein and herein. Notwithstanding references herein or therein with
respect to the Certificates as to "principal" and "interest" no debt of any
Person is represented thereby, nor are the Certificates or the underlying
Receivables guaranteed by any Person (except that the Receivables may be
recourse to the Obligors thereof to the extent permitted by law and except for
the rights of the Trustee with respect to the Certificate Insurance Policy).
Distributions on the Certificates are payable solely from payments received on
or with respect to the Receivables, from moneys in the Collection Account and
the Certificate Account, from earnings on moneys and the proceeds of property
held as a part of the Trust and, upon the occurrence of certain events as herein
provided, from draws on the Reserve Account and the Yield Maintenance Account
and, with respect to the Class A Certificates, claims under the Certificate
Insurance Policy, in each case to the extent provided herein. Each Certificate
entitles the Certificate Owner thereof to receive monthly on each Distribution
Date a specified portion of such payments with respect to the Receivables,
earnings, proceeds and withdrawals from the Reserve Account and the Yield
Maintenance Account and, with respect to the Class A Certificates, claims under
the Certificate Insurance Policy, pro rata in accordance with the ownership
interest of such Certificate Owner; provided, however that Certificate Owners
shall not be entitled to earnings on the Yield Maintenance Account or the
Reserve Account except that the Class B Certificateholders shall be entitled to
the Class B Reserve Account Investment Earnings.
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SECTION 6.2 AUTHENTICATION OF CERTIFICATES
The Trustee shall cause the Certificates to be executed on behalf of
the Trust, authenticated, and delivered to or upon the written order of the
Seller, signed by its chairman of the board, any vice chairman of the board, its
president, any executive vice president, any senior vice president or any vice
president, without further corporate action by the Seller, in authorized
denominations, pursuant to this Agreement. No Certificate shall entitle its
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 as set forth in the form of Class A Certificate attached as
Exhibit B-1 hereto or form of Class B Certificate attached as Exhibit B-2
hereto, as applicable, executed by the Trustee by manual 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.
SECTION 6.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 6.7, a 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. The Trustee shall be
the initial Certificate Registrar. In the event that, subsequent to the Closing
Date, the Trustee notifies the Servicer and the Certificate Insurer that it is
unable to act as Certificate Registrar, the Servicer shall appoint another bank
or trust company, having an office or agency located in the Borough of
Manhattan, The City of New York, agreeing to act in accordance with the
provisions of this Agreement applicable to it, and otherwise acceptable to the
Trustee and the Certificate Insurer, to act as successor Certificate Registrar
under this Agreement.
(b) Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Trustee shall execute, authenticate, and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class in authorized denominations of a like
aggregate amount dated the date of authentication by the Trustee. At the option
of a Holder, Certificates may be exchanged for other Certificates of the same
Class of authorized denominations of a like aggregate amount upon surrender of
the Certificates to be exchanged at the Corporate Trust Office.
(c) 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 Trustee and the Certificate Registrar duly executed by
the Holder or his or her attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer and exchange shall be canceled and
subsequently destroyed by the Trustee.
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(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee 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.
(e) Each purchaser of a Class A Certificate or of a beneficial
interest therein that is a Plan (as defined in Section 6.3(g)) or that is using
the "plan assets" (as defined in regulations issued by the Department of Labor)
of a Plan shall be deemed to have represented and warranted, by accepting such
Certificate or beneficial interest, that such purchaser is an "accredited
investor" as defined in Rule 501(a) under the Securities Act.
(f) Transfer of the Class B Certificates or any beneficial interest
therein shall be subject to the further conditions specified in Section 6.3(g),
(h) and (i).
(g) No purchase or transfer of a Class B Certificate or beneficial
interest therein shall be made unless the Trustee shall have received a
representation from the purchaser or the transferee thereof substantially in the
form of Exhibit G to the effect that such purchaser or transferee is an
"accredited investor" as defined in Rule 501(a) under the Securities Act and is
a QIB purchasing for its own account, and to the effect that such purchaser or
transferee (A) is not an employee benefit plan or arrangement subject to Section
406 of ERISA or a plan subject to Section 4975 of the Code (a "Plan"), nor a
Person acting on behalf of a Plan nor, except in the case of an "insurance
company general account" (as defined below), using the plan assets of a Plan to
effect such purchase or transfer, and (B) is not an insurance company purchasing
a Class B Certificate or beneficial interest therein with funds contained in an
"insurance company general account" (as defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) as to which there is a Plan
with respect to which the amount of such general account's reserves and
liabilities for the contracts held by or on behalf of such Plan and all other
Plans maintained by the same employer (or affiliate thereof as defined in
Section V(a)(l) of PTCE 95-60) or by the same employee organization exceed 10%
of the total of all reserves and liabilities of such general account (as such
amounts are determined under Section I(a) of PTCE 95-60) at the date of
acquisition.
With respect to a Class B Certificate that is a Book-Entry Certificate, the
representations contained in the preceding sentence shall be deemed to have been
made to the Trustee by the transferee's (including an initial acquiror's)
acceptance of a beneficial interest in the Class B Certificates. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class B
Certificate or a beneficial interest therein to or on behalf of an employee
benefit plan subject to ERISA or to the Code or a person acting on behalf of a
Plan or using the assets of a Plan to effect such transfer or to an insurance
company purchasing with funds from a general account not exempt pursuant to PTCE
95-60 shall be void and of no effect.
(h) To the extent permitted under applicable law (including, but
not limited to ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any Class B Certificate or any interest therein
that is in fact not permitted by Section 6.3(g) or for
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making any payments due on such Certificate to the Holder or beneficial owner
thereof or taking any other action with respect to such Holder or beneficial
owner under the provisions of this Agreement provided that such transfer was
registered by the Certificate Registrar in accordance with the foregoing
requirements.
(i) The Class B Certificate, this Agreement and related documents
may be amended or supplemented from time to time to modify restrictions on and
procedures for resale and other transfer of the Class B Certificates or any
beneficial interest therein to reflect any change in applicable law or
regulation (or the interpretation thereof) or practices relating to the resale
or transfers of restricted securities generally.
SECTION 6.4 MUTILATED, DESTROYED, LOST, OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or 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 or the Trustee and to the
Certificate Insurer 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 other than the Person who
requested a replacement Certificate, the Trustee on behalf of the Trust shall
execute and the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost, or stolen Certificate, a new
Certificate of like tenor and denomination. In connection with the issuance of
any new Certificate under this Section 6.4, the Trustee and 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 6.4 shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen, or destroyed Certificate shall be found at any time.
SECTION 6.5 PERSONS DEEMED OWNERS.
Prior to registration of transfer, the Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.4 and for all other purposes whatsoever, and neither the
Trustee, the Certificate Insurer nor the Certificate Registrar shall be bound by
any notice to the contrary.
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SECTION 6.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESS.
The Trustee shall furnish or cause to be furnished to the Servicer
and the Certificate Insurer, within 15 days after receipt by the Trustee of a
request therefor from such party in writing, a list, in such form as such party
may reasonably require, of the names and addresses of the Certificateholders as
of the most recent Record Date. If three or more Certificateholders, or one or
more Holders of Certificates aggregating not less than 25% of the Certificate
Principal Balance, apply in writing to the Trustee, 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 shall be accompanied by a copy of the communication that such
applicants propose to transmit, then the Trustee 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
neither the Servicer nor the Trustee accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
SECTION 6.7 MAINTENANCE OF OFFICE OR AGENCY
The Trustee shall maintain an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served. The Trustee initially designates
the Corporate Trust Office as specified in this Agreement as its office for such
purposes. The Trustee shall give prompt written notice to the Servicer, the
Certificate Insurer and Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 6.8 BOOK-ENTRY CERTIFICATES.
A Class of Certificates (other than a Certificate of such Class
representing any residual portion of the Pool Balance as of the Cut-Off Date)
may be issued upon original issuance, or subsequently reissued, in the form of
typewritten Certificates of such Class representing the Book-Entry Certificates
of such Class, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by the Seller or on its behalf. The Certificates of such Class
shall initially be registered on the Certificate Register in the name of CEDE &
Co., the nominee of the initial Clearing Agency, and no Certificate Owner of
Certificates of such Class will receive a definitive certificate representing
such Certificate Owner's interest in the Certificates of such Class, except as
provided in Section 6.10. Unless and until definitive, fully registered
Certificates ("Definitive Certificates") have been issued to Certificateholders
of such Class pursuant to Section 6.10:
(i) the provisions of this Section 6.8 shall be in full force and
effect;
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(ii) the Seller, the Servicer and the Trustee may deal with the
Clearing Agency and the Clearing Agency Participants for all purposes
(including the making of distributions on the Certificates of such Class
and the taking of actions by the Certificateholders of such Class) as the
authorized representatives of the Certificate Owners of such Class;
(iii) to the extent that the provisions of this Section 6.8 conflict
with any other provisions of this Agreement, the provisions of this Section
6.8 shall control;
(iv) the rights of Certificate Owners of Certificates of such Class
shall be exercised only through the Clearing Agency (or to the extent such
Certificate Owners are not Clearing Agency Participants through the
Clearing Agency Participants through which such Certificate Owners 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 the Clearing Agency Participants, and all references in this
Agreement to actions by Certificateholders of such Class shall refer to
actions taken by the Clearing Agency upon instructions from the Clearing
Agency Participants, and all references in this Agreement to distributions,
notices, reports and statements to Certificateholders of such Class shall
refer to distributions, notices, reports and statements to the Clearing
Agency or its nominee, as registered Holder of the Certificates of such
Class, as the case may be, for distribution to Certificate Owners of such
Class in accordance with the procedures of the Clearing Agency; and
(v) pursuant to an agreement between the Clearing Agency and the
Seller, the initial Clearing Agency will make Book-Entry transfers among
the Clearing Agency Participants and receive and transmit distributions of
principal and interest on the Certificates to the Clearing Agency
Participants, for distribution by such Clearing Agency Participants to the
Certificate Owners of such Class or their nominees.
SECTION 6.9 NOTICES TO CLEARING AGENCY.
Whenever notice or other communication to the Certificateholders of a
Class is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners of such Class pursuant to Section
6.10, the Trustee shall give to the Clearing Agency all such notices and
communications specified herein to be given to Certificateholders of such Class.
SECTION 6.10 DEFINITIVE CERTIFICATES.
(a) If (i)(A) the Servicer advises the Trustee in writing that the
Clearing Agency is no longer willing or able properly to discharge its
responsibilities as Clearing Agency with respect to a Class of Certificates, and
(B) the Trustee or the Servicer is unable to locate a qualified successor, (ii)
the Servicer, at its option, elects to terminate the Book-Entry system through
the Clearing Agency with respect to a Class of Certificates or (iii) after the
occurrence of
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an Servicer Default, the Certificateholders of a Class representing in the
aggregate not less than a majority of the Certificate Principal Balance of such
Class advise the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a Book-Entry system through the Clearing Agency
is no longer in the best interests of the Certificate Owners of such Class, the
Trustee shall notify the Clearing Agency of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners of such
Class requesting the same. Upon surrender to the Trustee by the Clearing Agency,
accompanied by re-registration instructions from the Clearing Agency for
registration and instructions and directions from the Servicer to execute and
authenticate new Certificates of such Class, the Trustee shall issue
authenticated Definitive Certificates of such Class. The Servicer shall arrange
for, and will bear all costs of, the printing and issuance of such Definitive
Certificates. None of the Seller, the Servicer, the Trustee or the Certificate
Insurer 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.
(b) Upon the issuance of Definitive Certificates of such Class, all
references herein to obligations imposed upon or to be performed by the Clearing
Agency with respect to the Certificates of such Class shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with respect
to such Definitive Certificates, and the Trustee shall recognize the Holders of
the Definitive Certificates of such Class as Certificateholders of such Class
hereunder.
SECTION 6.11 INITIAL ISSUANCE.
The Class A Certificates (other than a Class A Certificate
representing any residual portion of the Pool Balance as of the Cut-Off Date),
upon original issuance, shall be issued as Book-Entry Certificates. The Class B
Certificates, upon original issuance, shall be issued as Definitive
Certificates.
ARTICLE VII
THE SELLER
SECTION 7.1 REPRESENTATIONS OF SELLER.
The Seller makes the following representations on which the Trustee
relies in accepting the Receivables in trust and executing and authenticating
the Certificates and upon which the Certificate Insurer relies in executing and
delivering the Certificate Insurance Policy. The representations speak as of the
Closing Date and shall survive the sale of the Receivables to the Trustee.
(i) DUE ORGANIZATION AND GOOD STANDING. The Seller shall have been
duly organized and shall be validly existing as a federal savings bank in
good standing under the laws of the United States of America, with the
corporate power and
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authority to own its properties and to conduct its business as such
properties shall be currently owned and such business is presently
conducted, and had at all relevant times, and shall have, the corporate
power and authority and legal right to acquire and own the Receivables.
(ii) DUE QUALIFICATION. The Seller shall be duly qualified to do
business as a foreign corporation in good standing, and shall have obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require
such qualifications, except where the failure to be so qualified or to have
obtained such licenses or approvals would not have a material adverse
effect on the transactions contemplated by this Agreement.
(iii) POWER AND AUTHORITY. The Seller shall have the corporate power
and authority to execute and deliver this Agreement and to carry out its
terms, the Seller shall have full power and authority to sell and assign
the property to be sold and assigned to and deposited with the Trustee as
part of the Trust and shall have duly authorized such sale and assignment
to the Trustee by all necessary corporate action; and the execution,
delivery, and performance of this Agreement shall have been duly authorized
by the Seller by all necessary corporate action.
(iv) VALID SALE; BINDING OBLIGATIONS. This Agreement shall evidence
a valid sale, transfer, and assignment of the Receivables, enforceable
against creditors of and purchasers from the Seller; and shall be 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 or other obligees' rights in general or the rights of
creditors or obligees of federally chartered stock savings banks, the
deposits of which are insured by the FDIC, and by general principles of
equity, regardless of whether such enforceability shall be considered in a
proceeding in equity or at law.
(v) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall 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 charter or by-laws of the Seller, or any indenture,
agreement, or other instrument to which the Seller is a party or by which
it shall be 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 (other than this Agreement); 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.
(vi) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Seller's best knowledge, threatened before any court,
regulatory body,
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administrative agency, or other governmental instrumentality having
jurisdiction over the Seller or its properties (A) asserting the invalidity
of this Agreement or the Certificates, (B) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, (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
or the Certificates, or (D) which might adversely affect the federal income
tax attributes of the Certificates.
(vii) NO CONSENT REQUIRED. The Seller is not required to obtain the
consent of any other Person or any consent, license, approval or
authorization of, or make any registration or declaration with, any
governmental authority or agency in connection with the execution, delivery
and performance of this Agreement (except as have been obtained), other
than as may be required under the Blue Sky laws of any state or the
Securities Act.
(viii) NO INSOLVENCY. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby were not made
in contemplation of the insolvency of the Seller or after the commission of
any act of insolvency by the Seller.
(ix) NOT AN INVESTMENT COMPANY. The Trust is not required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended.
(x) OFFICIAL RECORD. This Agreement and all other documents
related hereto to which the Seller is a party have been approved by the
Seller's board of directors, which approval is reflected in the minutes of
such board, and shall continuously from the time of each such document's
execution, be maintained as an official record of the Seller.
SECTION 7.2 LIABILITY OF SELLER.
The Seller shall be liable in accordance herewith only to the extent
of the obligations specifically undertaken and the representations made by the
Seller under this Agreement.
SECTION 7.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF THE SELLER.
Any Person (a) into which the Seller may be merged or consolidated,
(b) which may result from any merger or consolidation to which the Seller shall
be a party, or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, which Person in any of the foregoing cases executes an
agreement of assumption 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; provided, that (x) the Seller shall have delivered to the Trustee and
the Certificate Insurer an
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Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, or succession and such agreement of assumption comply
with this Section 7.3, and (y) all conditions precedent, if any, provided for in
this Agreement relating to such merger, consolidation or succession have been
complied with. Notwithstanding the above, no such transaction shall result in
the Seller becoming subject to the provisions of the United States Bankruptcy
Code or similar laws of any State. The Seller or its successor hereunder shall
provide the Trustee, the Servicer, the Certificate Insurer and the Rating
Agencies with prompt notice of any such transaction.
SECTION 7.4 LIMITATION ON LIABILITY OF CERTAIN PERSONS OF SELLER.
No recourse under or upon any obligation or covenant of this
Agreement, or of any Certificate or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer or
director as such, of the Seller or of any successor corporation, either directly
or through the Seller, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise. This
Agreement and the obligations created hereunder are solely corporate
obligations, and no personal liability whatever shall attach to, or is or shall
be incurred by the incorporators, shareholders, officers or directors, as such,
of the Seller, or any of them, because of the issuance of the Certificates, or
under or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Certificates or implied therefrom. Any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the issuance
of the Certificates, or under or by reason of the obligations, covenants or
agreements contained in this Agreement or in any of the Certificates or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Agreement and the issuance of the
Certificates. The Seller and any director, officer, employee or agent of the
Seller may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
ARTICLE VIII
THE SERVICER
SECTION 8.1 REPRESENTATIONS OF SERVICER.
The Servicer makes the following representations on which the Trustee
relies in accepting the Receivables in trust and executing and authenticating
the Certificates and upon which the Certificate Insurer relies in executing and
delivering the Certificate Insurance Policy. The representations speak as of the
Closing Date and shall survive the sale of the Receivables to the Trustee.
(i) DUE ORGANIZATION AND GOOD STANDING. The Servicer shall have
been duly organized and shall be validly existing as a federal savings bank
in good
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standing under the laws of the United States of America, with the corporate
power and authority to own its properties and to conduct its business as
such properties shall be currently owned and such business is presently
conducted, and had at all relevant times, and shall have, the corporate
power and authority and legal right to acquire, own, sell, and service the
Receivables and to hold the Receivable Files as custodian on behalf of the
Trustee.
(ii) DUE QUALIFICATION. The Servicer shall be duly qualified to do
business as a foreign corporation in good standing, and shall have obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business (including
the servicing of the Receivables as required by this Agreement) shall
require such qualifications, except where the failure to be so qualified or
to have obtained such licenses or approvals would not have a material
adverse effect on the transactions contemplated by this Agreement and would
not render any Receivable unenforceable by the Trustee on behalf of the
Certificateholders and the Certificate Insurer.
(iii) POWER AND AUTHORITY. The Servicer shall have the corporate
power and authority to execute and deliver this Agreement and to carry out
its terms, and the execution, delivery, and performance of this Agreement
shall have been duly authorized by the Servicer by all necessary corporate
action.
(iv) BINDING OBLIGATIONS. This Agreement shall constitute a legal,
valid, and binding obligation of the Servicer 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' or other obligees' rights in general or the rights of
creditors or obligees of federally chartered stock savings banks, the
deposits of which are insured by the Federal Deposit Insurance Corporation,
and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law.
(v) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall 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 charter or by-laws of the Servicer, or any indenture,
agreement, or other instrument to which the Servicer is a party or by which
it shall be 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 (other than this Agreement); 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.
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(vi) 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 Certificates, (B) seeking
to prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, (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 or the Certificates, or (D) which might
adversely affect the federal income tax attributes of the Certificates.
SECTION 8.2 LIABILITIES OF SERVICER, INDEMNITIES.
(a) The Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken and the representations made
by the Servicer under this Agreement, including its duties as custodian of the
Receivable Files.
(i) The Servicer, except as set forth in this Section 8.2, shall
not be under any liability to the Trust or the Certificateholders for
taking any action or for refraining from taking any action pursuant to this
Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Servicer against any liability which would
otherwise be imposed upon the Servicer by reason of its willful
misfeasance, bad faith or negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties as Servicer
hereunder.
(ii) The Servicer shall indemnify, defend, and hold harmless the
Trustee, its officers, directors, agents and employees, the Trust, the
Certificateholders and the Certificate Insurer 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; provided, that the Servicer shall
have no obligation to indemnify any Person against any credit losses on any
Receivable serviced by the Servicer in accordance with the requirements of
this Agreement.
(iii) The Servicer shall indemnify, defend and hold harmless the
Trust, the Trustee and its officers, directors, employees and agents and
the Certificate Insurer from and against any loss, liability, expense,
damage or injury, including any judgment, award, settlement and other costs
or expenses incurred in connection with the defense of any action,
proceeding or claim, to the extent such loss, liability, expense, damage or
injury arose out of, or was imposed upon such persons through, the willful
misfeasance, bad faith or negligence of the Servicer in the performance of
its duties or by reason of its reckless disregard of its obligations and
duties as Servicer hereunder.
(iv) The initial Servicer shall indemnify, defend and hold
harmless the Trustee, its officers, directors, employees and agents from
and against any loss, liability
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or expense incurred without negligence or bad faith on the part of the
Trustee or its officers, directors, employees or agents and arising out of
or in connection with the acceptance or administration by the Trustee of
this Trust, as applicable, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of the Trustee's powers or duties hereunder.
(v) The Servicer shall defend, indemnify and hold harmless the
Trust and the Trustee, its respective officers, directors, agents and
employees, the Certificate Insurer and the Certificateholders from and
against any taxes that may at any time be asserted against the Trust, the
Trustee, the Certificate Insurer or the Certificateholders with respect to
the transactions contemplated in this Agreement, including, without
limitation, any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but not including any
personal property taxes asserted with respect to ownership of the
Receivables, or federal or other income taxes arising out of distributions
on the Certificates) and costs and expenses in defending against the same.
Indemnification under this Section 8.2 shall include reasonable fees
and expenses of counsel and expenses of litigation.
Within a reasonable period after receipt by the Trustee, the Trust,
the Certificate Insurer or the Certificateholders of notice of the commencement
of any action with respect to which indemnification is sought under this Section
8.2, such party shall notify the Servicer in writing of the commencement
thereof. In case any such action shall be brought, the Servicer shall be
entitled to participate in and, to the extent that it shall wish, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and after
notice from the Servicer to the indemnified party of its election so to assume
the defense thereof, the Servicer shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation.
The Servicer shall not be liable for any settlement of any litigation
or proceeding effected without the written consent of the Servicer (which shall
not be unreasonably withheld). The indemnified party shall not, without the
Servicer's written consent (which shall not be unreasonably withheld), settle or
compromise any claim or consent to entry of any judgment which would impose an
injunction or other equitable relief on the Servicer or which does not include
as an unconditional term thereof the release by the claimant or the plaintiff of
the Servicer from all liability in respect of such claim.
The rights to indemnification under this Section 8.2 shall survive
the termination, resignation or removal of the Servicer with respect to acts and
omissions to act of the Servicer giving rise to such rights and occurring prior
to such termination, resignation or removal. In addition, the rights to
indemnification under this Section 8.2 shall survive the termination of the
Trust.
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SECTION 8.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF THE SERVICER.
Any Person (a) into which the Servicer may be merged or
consolidated, (b) which may result from any merger or consolidation to which the
Servicer shall be a party, or (c) which may succeed to the properties and assets
of the Servicer substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption 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; provided, however, that (x) the
Servicer shall have delivered to the Trustee and the Certificate Insurer an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section 8.3 and (y) all conditions precedent, if any, provided for in this
Agreement relating to such merger, consolidation or succession have been
complied with. The Servicer or its successor hereunder shall provide the
Trustee, the Seller, the Certificate Insurer and the Rating Agencies with prompt
notice of any such transaction.
SECTION 8.4 LIMITATION ON LIABILITY OF CERTAIN PERSONS OF SERVICER.
No recourse under or upon any obligation or covenant of this
Agreement, or of any Certificate or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer or
director as such, of the Servicer or of any successor corporation, either
directly or through the Servicer, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise.
This Agreement and the obligations created hereunder are solely corporate
obligations, and no personal liability whatever shall attach to, or is or shall
be incurred by the incorporators, shareholders, officers or directors, as such,
of the Servicer, or any of them, because of the issuance of the Certificates, or
under or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Certificates or implied therefrom. Any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the issuance
of the Certificates, or under or by reason of the obligations, covenants or
agreements contained in this Agreement or in any of the Certificates or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Agreement and the issuance of the
Certificates. The Servicer and any director, officer, employee or agent of the
Servicer may rely in good faith on any document of any kind prima facie properly
----- -----
executed and submitted by any Person respecting any matters arising hereunder.
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 duties to service the Receivables in accordance
with this Agreement (collection actions with
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respect to Defaulted Receivables are understood to be incidental to the
Servicer's duties to service the Receivables), and that in its opinion may
involve it in any expense or liability.
SECTION 8.5 SERVICER NOT TO RESIGN.
The Servicer shall not resign from its obligations and duties
under this Agreement except upon determination that the performance of its
duties shall no longer be permissible under applicable law (any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Trustee and the
Certificate Insurer). Notice of any such determination permitting the
resignation of the Servicer, shall be communicated to the Trustee, the
Certificate Insurer and the Rating Agencies 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 Trustee
concurrently with such notice. No such resignation shall become effective until
the Trustee or other successor Servicer shall have assumed the responsibilities
and obligations of the Servicer in accordance with Section 9.2.
SECTION 8.6 DELEGATION OF DUTIES.
The Servicer may at any time delegate any duties hereunder to
any Person, including, without limitation, the Sub-Servicer, who agrees to
conduct such duties in accordance with this Agreement; provided, however, that
the Servicer may not delegate its duties as custodian except (i) with the
consent of the Certificate Insurer, or (ii) as provided in Sections 3.3 and 3.4
of this Agreement. Such delegation shall not relieve the Servicer of its
responsibilities and liabilities with respect to such duties, and shall not
constitute a resignation within the meaning of Section 8.5.
ARTICLE IX
DEFAULT
SECTION 9.1 SERVICER DEFAULT.
If any one of the following events ("Servicer Default") shall
occur and be continuing:
(i) any failure by the Servicer to deliver to the Trustee
on or before the Determination Date the Servicer's Certificate for
the related Collection Period or to deliver to the Trustee for
distribution to the Certificateholders any proceeds or payment
required to be so delivered under the terms of this Agreement that
shall continue unremedied for a period of more than three Business
Days after written notice from (x)
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the Trustee or the Holders of Certificates evidencing not less than
25% of the Certificate Principal Balance (which notice shall be
consented to by the Certificate Insurer), or (y) the Certificate
Insurer is received by the Servicer as specified in this Agreement;
or
(ii) any failure on the part of the Servicer or the Seller
duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer or the Seller, as the case
may be, set forth in the Certificates or in this Agreement, which
failure shall (a) materially and adversely affect the rights of the
Certificateholders (determined without regard to the availability
of the Certificate Insurance Policy) and (b) continue unremedied
for a period of more than 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall
have been given (x) to the Servicer or the Seller, as the case may
be, by the Trustee (which notice is consented to by the Certificate
Insurer), (y) to the Servicer or the Seller, as the case may be,
and to the Trustee by the Holders of Certificates evidencing not
less than 25% of the Certificate Principal Balance (which notice
shall be consented to by the Certificate Insurer), or (z) to the
Servicer or the Seller, as the case may be, by the Certificate
Insurer; or
(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, marshaling 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, marshaling 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 admission by
the Servicer in writing of its inability to pay its debts generally
as they become due, the filing by the Servicer of a petition to
take advantage of any applicable insolvency or reorganization
statute, the making by the Servicer of an assignment for the
benefit of its creditors, or the voluntary suspension by the
Servicer of payment of its obligations;
then, and in each and every case, so long as such Servicer Default shall not
have been remedied, (x) the Trustee or the Majority Certificateholders, in
either case with the consent of the Certificate Insurer, or (y) the Certificate
Insurer, by notice then given in writing to the Servicer (and to the Trustee if
given by the Certificate Insurer or the Certificateholders), 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 or the Receivables or otherwise, shall, without
further action, pass to and be vested in the Trustee or such successor Servicer
as may be appointed under Section 9.2 pursuant to and under this Section 9.1;
and, without limitation, the Servicer, the Trustee or such other successor
Servicer, as
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the case may be, is 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 Receivables
and related documents, or otherwise; provided, however, that the Trustee or any
successor Servicer shall not be liable for any acts, omissions or obligations of
the Servicer prior to such succession. The predecessor Servicer shall cooperate
with the successor Servicer and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the successor Servicer of electronic records related
to the Receivables or such form as the successor Servicer may reasonably request
and 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,
or shall thereafter be received with respect to a Receivable. The Trustee shall
give the Rating Agencies and the Certificate Insurer notice of any termination
of the Servicer pursuant to the terms of this Section 9.1.
SECTION 9.2 APPOINTMENT OF SUCCESSOR
(a) Upon the Servicer's receipt of notice of termination pursuant
to Section 9.1 or the Servicer's resignation in accordance with the terms of
this Agreement, the predecessor Servicer shall continue to perform its functions
as Servicer under this Agreement, in the case of termination, only until the
date specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice and, in the case of
resignation, until the later of (x) the date 45 days from the delivery to the
Trustee and the Certificate Insurer of written notice of such resignation (or
written confirmation of such notice) in accordance with the terms of this
Agreement and (y) the date upon which the predecessor Servicer shall become
unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the Servicer's resignation or
termination hereunder, the Trustee shall, with the consent of the Certificate
Insurer, appoint a successor Servicer acceptable to the Certificate Insurer, and
the successor Servicer shall accept its appointment by a written assumption in
form acceptable to the Trustee. In the event that a successor Servicer has not
been appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section 9.2, the Trustee without further action
shall automatically be appointed the successor Servicer; provided, however, that
the Trustee shall not be liable for any acts, omissions or obligations of the
Servicer prior to such succession. Notwithstanding the above, the Trustee shall,
if it shall be legally unable so to act, appoint, or petition a court of
competent jurisdiction to appoint, any established financial institution
reasonably acceptable to the Certificate Insurer, having a net worth of not less
than $50,000,000 and whose regular business shall include the servicing of
automotive receivables, as the successor to the Servicer under this Agreement.
(b) Upon appointment, the successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be subject to
all the responsibilities, duties, and liabilities arising thereafter relating
thereto placed on the predecessor Servicer, and shall be entitled to all of the
rights granted to the predecessor Servicer, by the terms and provisions of this
Agreement.
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(c) In connection with such appointment, the Trustee may make such
arrangements for the compensation of a 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 original
Servicer under this Agreement. The Trustee and such successor Servicer shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
The Servicer shall cooperate with the successor Servicer in
effecting the transfer of the rights and responsibilities of the Servicer under
this Agreement.
SECTION 9.3 NOTIFICATION TO CERTIFICATEHOLDERS
Upon any notice of an Servicer Default or upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article IX,
the Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register, to the Rating
Agencies and to the Certificate Insurer.
SECTION 9.4 WAIVER OF PAST DEFAULTS.
The Certificate Insurer or, provided they have obtained the
prior consent of the Certificate Insurer, the Majority Certificateholders may,
on behalf of all Holders of Certificates, waive any default by the Servicer or
the Seller in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from the
Certificate Account in accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any Servicer Default
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.
SECTION 9.5 EFFECT OF SERVICER DEFAULT ON SUB-SERVICER.
Any removal of the Servicer pursuant to this Article IX shall
ipso facto constitute a removal of the Sub-Servicer.
ARTICLE X
THE TRUSTEE
SECTION 10.1 DUTIES OF TRUSTEE.
The Trustee, both prior to and after the occurrence of an
Servicer Default, shall undertake to perform such duties as are specifically set
forth in this Agreement. If an Servicer Default shall have occurred and shall
not have been cured, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and shall use the same degree of care and skill
in their exercise, as a prudent man or woman would exercise or use under the
circumstances in the conduct of his or her own affairs; provided, however, that
if the Trustee shall assume the
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duties of the Servicer pursuant to Section 9.2, the 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 or
others.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of this Agreement, shall examine them to determine whether they
conform as to form to the requirements of this Agreement.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own bad faith; provided, however, that:
(i) prior to the occurrence of an Servicer Default, and
after the curing of all such Events of Default that may have occurred,
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as
shall be specifically set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, or
manifest error, the Trustee may conclusively rely on the truth of the
statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) the Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee shall have been negligent in ascertaining
the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action taken, suffered, or omitted to be taken in good faith in
accordance with this Agreement or at the direction of the Certificate
Insurer or the Holders of Certificates evidencing not less than 25% of
the Certificate Principal Balance with the consent of the Certificate
Insurer relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement;
(iv) the Trustee shall not be charged with knowledge of
any failure by the Servicer to comply with the obligations of the
Servicer referred to in clause (i) or (ii) of Section 9.1, or of any
failure by the Seller to comply with the obligations of the Seller
referred to in clause (ii) of Section 9.1, unless a Responsible Officer
of the Trustee has actual knowledge or receives written notice of such
failure (it being understood that knowledge of the Servicer or the
Servicer as custodian, in its capacity as agent for the Trustee, is not
attributable to the Trustee) from the Servicer, the Seller or the
Certificate Insurer, as the case may be, or the Holders of Certificates
evidencing not less than 25% of the Certificate Principal Balance; and
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(v) without limiting the generality of this Section 10.1
or Section 10.4, the Trustee shall have no duty (i) to see to any
recording, filing, or depositing of this Agreement or any agreement
referred to herein or any financing statement evidencing a security
interest in the Receivables or the Financed Vehicles, or to see to the
maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof, (ii) to see to
any insurance of the Financed Vehicles or Obligors or to effect or
maintain any such insurance, (iii) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any Lien or
encumbrance of any kind owing with respect to, or assessed or levied
against, any part of the Trust, (iv) to confirm or verify the contents
of any reports or certificates of the Servicer delivered to the Trustee
pursuant to this Agreement believed by the Trustee to be genuine and to
have been signed or presented by the proper party or parties, or (v) to
inspect the Financed Vehicles at any time or ascertain or inquire as to
the performance or observance of any of the Seller's or the Servicer's
representations, warranties or covenants or the Servicer's duties and
obligations as Servicer and as custodian of the Receivable Files under
this Agreement.
The Trustee shall not be required 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 there
shall be reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability shall not be reasonably
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this Agreement
except during such time, if any, as the 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 this Agreement.
SECTION 10.2 TRUSTEE'S CERTIFICATE.
On or as soon as practicable after each Distribution Date on
which Receivables shall be (i) assigned to the Seller pursuant to Section 3.2 or
11.2 or (ii) assigned to the Servicer pursuant to Section 4.2 or 4.7, the
Trustee shall execute a Trustee's Certificate, substantially in the form of, in
the case of an assignment to the Seller, Exhibit C, or, in the case of an
assignment to the Servicer, Exhibit D, based on the information contained in the
Servicer's Certificate for the related Collection Period, amounts deposited to
the Certificate Account, and notices received pursuant to this Agreement,
identifying the Receivables repurchased by the Seller pursuant to Section 3.2 or
11.2 or purchased by the Servicer pursuant to Section 4.2 or 4.7 with respect to
such Collection Period, and shall deliver such Trustee's Certificate,
accompanied by a copy of the Servicer's Certificate for such Collection Period,
to the Seller or the Servicer, as the case may be,
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with a copy to the Certificate Insurer. The Trustee's Certificate shall be an
assignment pursuant to Section 10.3.
SECTION 10.3 TRUSTEE'S ASSIGNMENT OF PURCHASED RECEIVABLES.
With respect to each Receivable repurchased by the Seller
pursuant to Section 3.2 or 11.2 or purchased by the Servicer pursuant to Section
4.2 or 4.7, the Trustee shall assign, on the day on which the Trustee receives
payment for such Receivable, effective as of the last day of the Collection
Period during which such Receivable became subject to repurchase by the Seller
or purchase by the Servicer, without recourse, representation, or warranty, to
the Seller or the Servicer (as the case may be) all the Trustee's right, title,
and interest in and to such Receivables, and all security and documents relating
thereto, and all proceeds thereof, such assignment being an assignment outright
and not for security. If in any enforcement suit or legal proceeding it shall be
held that the Servicer may not enforce a Receivable on the ground that it shall
not be a real party in interest or a holder entitled to enforce the Receivable,
the Trustee shall, at the Servicer's expense, take such steps as the Trustee
deems necessary to enforce the Receivable, including bringing suit in its name
or the name of the Certificateholders.
SECTION 10.4 CERTAIN MATTERS AFFECTING THE TRUSTEE.
Except as otherwise provided in Section 10.1:
(i) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
Servicer's Certificate, certificate of auditors, or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties.
(ii) The Trustee may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under this
Agreement in good faith and in accordance with such Opinion of Counsel.
(iii) The 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 in
relation to this Agreement, at the request, order, or direction of any
of the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses, and
liabilities that may be incurred therein or thereby; nothing contained
in this Agreement, however, shall relieve the Trustee of the
obligations, upon the occurrence of an Servicer Default (that shall not
have been cured), to exercise such of the rights and powers vested in
it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man or woman would exercise or use under
the circumstances in the conduct of his or her own affairs.
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(iv) The Trustee shall not be liable for any action taken,
suffered, or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement.
(v) Prior to the occurrence of an Servicer Default and
after the curing of all Events of Default that may have occurred, the
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 the
Holders of Certificates evidencing not less than 25% of the Certificate
Principal Balance or the Certificate Insurer; provided, however, that
if the payment within a reasonable time to the 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 Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such cost, expense, or liability as a condition to so
proceeding. Nothing in this clause (v) shall affect the obligation of
the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors.
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either directly or
by or through agents or attorneys or a custodian and shall not be
liable for the negligence of any such agents, attorneys or custodians
appointed with due care. The Trustee shall not be responsible for any
misconduct or negligence solely attributable to the acts or omissions
of the Servicer in its capacity as Servicer or custodian.
(vii) Subsequent to the sale of the Receivables by the
Seller to the Trustee, the Trustee shall have no duty of independent
inquiry, except as may be required by Section 10.1, and the Trustee may
rely upon the representations and warranties and covenants of the
Seller and the Servicer contained in this Agreement with respect to the
Receivables and the Receivable Files.
SECTION 10.5 TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES.
The recitals contained herein and in the Certificates (other
than the certificate of authentication on the Certificates) shall be taken as
the statements of the Seller or the Servicer, as the case may be, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee shall
make no representations as to the validity or sufficiency of this Agreement or
of the Certificates (other than the certificate of authentication on the
Certificates), or of any Receivable or related document. The Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity, and enforceability of any security interest in any Financed Vehicle or
any Receivable, or the perfection and priority of such a security interest or
the maintenance of any such perfection and priority, or for or with respect to
the efficacy of the Trust or its ability to generate the payments to be
distributed to Certificateholders under this
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Agreement, including, without limitation, the existence, condition, location,
and ownership of any Financed Vehicle; the existence and enforceability of any
physical damage insurance, theft insurance, vendor's single interest insurance,
or credit life or disability and hospitalization insurance with respect to any
Receivable; the existence and contents of any Receivable or any computer or
other record thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any Receivable; the
performance or enforcement of any Receivable; the compliance by the Seller or
the Servicer with any warranty or representation made under this Agreement or in
any related document and the accuracy of any such warranty or representation
prior to the Trustee's receipt of notice or other discovery of any noncompliance
therewith or any breach thereof; any investment of monies by the Servicer or any
loss resulting therefrom other than investments in obligations of or guaranteed
by the Trustee (it being understood that the Trustee shall remain responsible
for any Trust property that it may hold); the acts or omissions of the Seller,
the Servicer, or any Obligor; any action of the Servicer taken in the name of
the Trustee; or any action by the Trustee taken at the instruction of the
Servicer; provided, however, that the foregoing shall not relieve the Trustee of
its obligation to perform its duties under this Agreement. Except with respect
to a claim based on the failure of the Trustee to perform its duties under this
Agreement or based on the Trustee's negligence or willful misconduct, no
recourse shall be had for any claim based on any provision of this Agreement,
the Certificates, or any Receivable or assignment thereof against the Trustee in
its individual capacity, the Trustee shall not have any personal obligation,
liability, or duty whatsoever to any Certificateholder or any other Person with
respect to any such claim, and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided in this
Agreement. The Trustee shall not be accountable for the use or application by
the Seller of any of the Certificates or of the proceeds of such Certificates,
or for the use or application of any funds paid to the Seller or the Servicer in
respect of the Receivables. The Trustee shall not be responsible for any
statement in any document prepared, executed or delivered in connection with the
sale and issuance of the Certificates other than any such document prepared,
executed or delivered by the Trustee in connection therewith on the Closing
Date.
SECTION 10.6 TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Certificates with the same rights as it would have if it
were not Trustee.
SECTION 10.7 TRUSTEE'S FEES.
The Trustee's fee for a Collection Period shall equal the
Monthly Trustee's Fee. The Monthly Trustee's Fee will be paid from the funds of
the Trust in accordance with Section 5.4.
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SECTION 10.8 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee under this Agreement shall at all times be a
corporation having an office in the same State as the location of the Corporate
Trust Office as specified in this Agreement, or another state of the United
States of America or the District of Columbia; and organized and doing business
under the laws of such State, district or the United States of America;
authorized under such laws to exercise corporate trust powers; having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or State authorities; having a rating of its long-term
debt obligations by Moody's of no less than Baa3; and reasonably satisfactory to
the Certificate Insurer. 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 10.8,
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 Trustee shall cease to be eligible in
accordance with the provisions of this Section 10.8, the Trustee shall resign
immediately in the manner and with the effect specified in Section 10.9.
SECTION 10.9 RESIGNATION OR REMOVAL OF TRUSTEE.
The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Servicer and the
Certificate Insurer. Upon receiving such notice of resignation, the Servicer
shall, with the consent of the Certificate Insurer, promptly appoint a successor
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.8 and shall fail to resign after
written request therefor by the Servicer or the Certificate Insurer, or if at
any time the Trustee shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation, or
liquidation, then the Servicer or the Certificate Insurer may remove the
Trustee. If it shall remove the Trustee under the authority of the immediately
preceding sentence, the Servicer shall promptly appoint a successor Trustee that
meets the eligibility requirements of Section 10.8 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 10.9 shall
not become effective without the consent of the Certificate Insurer and until
acceptance of appointment by the successor Trustee pursuant to Section 10.10.
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SECTION 10.10 SUCCESSOR TRUSTEE.
Any successor Trustee appointed pursuant to Section 10.9 shall
execute, acknowledge, and deliver to the Servicer and to its predecessor Trustee
an instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor 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
Trustee. The predecessor Trustee shall deliver to the successor Trustee all
documents and statements held by it under this Agreement; and the Servicer and
the predecessor 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 Trustee all such rights, powers, duties, and
obligations.
No successor Trustee shall accept appointment as provided in
this Section 10.10 unless at the time of such acceptance such successor Trustee
shall be eligible pursuant to Section 10.8.
Upon acceptance of appointment by a successor Trustee pursuant
to this Section 10.10, the Servicer shall mail notice of the successor of such
Trustee under this Agreement to all Holders of Certificates at their addresses
as shown in the Certificate Register, to the Certificate Insurer and to the
Rating Agencies. If the Servicer shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Servicer.
SECTION 10.11 MERGER OR CONSOLIDATION OF TRUSTEE.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible pursuant to Section 10.8,
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.
The Trustee or its successor hereunder shall provide the Servicer, the
Certificate Insurer and the Rating Agencies with prompt notice of any such
transaction.
SECTION 10.12 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 Trust or any Financed Vehicle may at the time be located,
the Servicer and the Trustee with the consent of the Certificate Insurer acting
jointly shall have the power and shall execute and deliver all
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instruments to appoint one or more Persons approved by the Trustee to act as co-
trustee, jointly with the Trustee, or separate trustee or separate trustees, of
all or any part of the Trust, and to vest in such Person, in such capacity and
for the benefit of the Certificateholders and the Certificate Insurer, such
title to the Trust, or any part thereof, and, subject to the other provisions of
this Section 10.12, such powers, duties, obligations, rights, and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in the case an Servicer Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. 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 10.8 and no notice to Certificateholders of the appointment of any co-
trustee or separate trustee shall be required pursuant to Section 10.10.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(1) all rights, powers, duties, and obligations
conferred or imposed upon the Trustee shall be conferred upon and
exercised or performed by the 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 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
(whether as Trustee under this Agreement or as successor to the
Servicer under this Agreement), the 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
Trust 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 Trustee;
(2) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(3) the Servicer, the Trustee and the Certificate
Insurer 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 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 X. 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 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
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Trustee. Each such instrument shall be filed with the Trustee and a copy thereof
given to the Servicer and the Certificate Insurer.
Any separate trustee or co-trustee may at any time appoint the
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
Agreement 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 Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 10.13 REPRESENTATIONS AND WARRANTIES OF TRUSTEE.
The Trustee shall make the following representations and
warranties on which the Seller, the Certificate Insurer and Certificateholders
may rely:
(i) DUE ORGANIZATION AND GOOD STANDING. The Trustee is a
national banking association duly organized, validly existing, and in
good standing under the laws of the United States of America.
(ii) POWER AND AUTHORITY. The Trustee has full power,
authority, and legal right to execute, deliver, and perform this
Agreement, and shall have taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement.
(iii) NO VIOLATION. The execution, delivery, and performance
by the Trustee of this Agreement shall not violate any provision of any
law governing the banking and trust powers of the Trustee or, to the
best of the Trustee's knowledge, any order, writ, judgment, or decree
of any court, arbitrator, or governmental authority applicable to the
Trustee or any of its assets.
(iv) NO PROCEEDINGS. The execution, delivery, and
performance by the Trustee of this Agreement shall 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 regulating the banking
and corporate trust activities of the Trustee.
(v) DULY EXECUTED. This Agreement shall have been duly
executed and delivered by the Trustee and shall constitute the legal,
valid, and binding agreement of the Trustee, enforceable in accordance
with its terms.
(vi) SECURITIES INTERMEDIARY. The Trustee is a securities
intermediary as defined under Article 8 of the Minnesota Uniform
Commercial Code.
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SECTION 10.14 TAX RETURNS.
The Servicer shall prepare or shall cause to be prepared any
tax returns required to be filed by the Trust and the Trustee shall promptly
sign and file such returns. In no event shall the Trustee be liable for any
liabilities, costs or expenses of the Trust or the Certificateholders under any
tax law, including without limitation federal, state or local income or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty with respect thereto or arising from a failure to comply therewith).
ARTICLE XI
TERMINATION
SECTION 11.1 TERMINATION OF THE TRUST.
The respective obligations and responsibilities of the Seller,
the Servicer, and the Trustee created hereby and the Trust created by this
Agreement shall terminate upon the earlier of (i) the maturity or other
liquidation of the last Receivable in accordance with the terms hereof and the
disposition of any amounts received upon liquidation of any remaining
Receivables in the Trust in accordance with the terms hereof, including the
purchase as of the last day of any Collection Period by the Seller at its
option, pursuant to Section 11.2, of the corpus of the Trust or (ii) the payment
to Certificateholders and the Certificate Insurer 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 of the Court of St. James, living on the date of
this Agreement. The Servicer shall promptly notify the Trustee and the
Certificate Insurer of any prospective termination pursuant to this Section
11.1.
Notice of any termination, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Trustee for payment of the final distribution and cancellation, shall be given
promptly by the Trustee by letter to Certificateholders mailed not later than
the first day of the month in which the specified Distribution Date occurs,
stating (A) the Distribution Date upon which final payment of the Certificates
shall be made upon presentation and surrender of the Certificates at the office
of the Trustee therein designated, (B) the amount of any such final payment, and
(C) 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 Trustee therein specified. The Trustee shall
give such notice to the Certificate Registrar (if other than the Trustee) at the
time such notice is given to Certificateholders. Upon presentation and surrender
of the
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Certificates, the Trustee shall cause to be distributed to Certificateholders
and the Certificate Insurer amounts distributable on such Distribution Date
pursuant to Section 5.4.
In the event that 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 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 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 Trust after exhaustion of
such remedies shall, upon notice to the Trustee, be paid by the Trustee to the
Servicer for deposit into an escrow account, and thereafter Certificateholders
shall look only to such escrow account with respect to any claims in respect of
such funds.
SECTION 11.2 OPTIONAL PURCHASE OF ALL RECEIVABLES.
The Seller shall have the option to purchase the corpus of the
Trust on any Distribution Date following a Record Date on which the Pool Balance
is 5% or less of the Original Pool Balance. To exercise such option, the Seller
shall deposit in the Certificate Account an amount equal to the Class A Unpaid
Balance, Class B Unpaid Balance and all accrued and unpaid interest on the Class
A Certificates and the Class B Certificates at the applicable rate as provided
herein, together with any unpaid Premium Amount (and any interest thereon) and
any Reimbursement Amount then owed to the Certificate Insurer (the "Optional
Purchase Price"); provided, however, that the Seller may not effect any such
purchase unless the Trustee and the Certificate Insurer shall have received an
Opinion of Counsel acceptable to them that such purchase does not constitute a
fraudulent conveyance under applicable federal and state laws. Such price shall
be deposited to the Certificate Account in immediately available funds by 12:00
noon, New York City time, on such Distribution Date and, upon notice to the
Trustee of such deposit, the Trustee shall release the Receivables and the
Receivable Files and all other property of the Trust to the Seller, whereupon
the Certificates shall no longer evidence any right or interest in the
Receivables or other property of the Trust or any proceeds thereof.
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1 AMENDMENT.
(a) This Agreement may be amended by the Seller, the Servicer and
the Trustee, without the consent of any of the Certificateholders but with the
prior written consent of the Certificate Insurer (so long as an Insurer Default
shall not have occurred and be continuing), (i) to cure any ambiguity or defect,
(ii) to correct or supplement any provisions in this Agreement
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or (iii) to correct any typographical error or to add any other provisions with
respect to matters or questions arising under this Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder; provided,
further, that if an Insurer Default has occurred and is continuing,
notwithstanding the provisions of Section 1.6(b), such action shall not amend,
modify or limit the Certificate Insurer's rights under (i) Section 5.4(a), (ii)
any rights to indemnification to which the Certificate Insurer is entitled
hereunder or (iii) any defined terms used in any provisions of this Agreement
referenced in the preceding clauses (i) or (ii).
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Trustee with the consent of the Certificate Insurer
and the Majority 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 Holders of
Certificates; provided, however, that no such amendment shall, without the
consent of the Holders of all Certificates then outstanding, reduce the
aforesaid percentage required to consent to any such amendment. In no case may
any such amendment increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments on Receivables or distributions
that shall be required to be made on any Certificate without the consent of the
Holder of such Certificate.
(c) The Trustee shall notify each Rating Agency prior to any
amendment of this Agreement; to the extent practicable, such notice shall be
given not less than 10 days prior to the date on which such amendment is
executed.
(d) Promptly after the execution of any amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, each Rating Agency and the
Certificate Insurer; a copy of any proposed amendment shall be furnished to the
Certificate Insurer by the Seller prior to its execution by the Seller.
(e) It shall not be necessary for the consent of
Certificateholders pursuant to this Section 12.1 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
shall be subject to such reasonable requirements as the Trustee may prescribe.
(f) Prior to the execution of any amendment to this Agreement,
the Trustee and the Certificate Insurer 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 and the Opinion of Counsel referred to
in Section 12.2(i)(1). The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's own rights, duties, or
immunities under this Agreement.
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SECTION 12.2 PROTECTION OF TITLE TO TRUST.
(a) The Seller shall execute and file, or cause to be executed and
filed, 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 interest of the
Certificateholders, the Certificate Insurer and the Trustee under this Agreement
in the Receivables and in the proceeds thereof. The Seller shall deliver (or
cause to be delivered) to the Trustee and the Certificate Insurer 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 Section 12.2(a) seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless the Seller or Servicer shall have filed (or
cause to be filed) UCC financing statements upon any of the stated events.
(c) If, as a result of a relocation of the Seller's or Servicer's
principal executive office, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement, then the Seller or the Servicer
shall file or cause to be filed such amendment or continuation statement or new
financing statement within the period of time necessary fully to preserve and
protect the interest of the Trustee in the Receivables. 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 Certificate
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
Trustee, the Servicer's master computer records (including any back-up archives)
that refer to a Receivable shall indicate clearly with reference to the
particular grantor trust that such Receivable is owned by the Trustee.
Indication of the Trustee's ownership of 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 or repurchased or purchased hereunder.
(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
automotive receivables to any prospective purchaser, lender, or other
transferee, the Servicer shall give to such prospective purchaser, lender, or
other transferee computer tapes, records, or print-outs (including any restored
from
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back-up 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 Trustee.
(g) The Servicer shall permit the Trustee and the Certificate
Insurer and their respective agents at any time during normal business hours to
inspect, audit, and make copies of and abstracts from the Servicer's records
regarding any Receivable to the extent permitted by applicable banking, privacy
and other laws limiting such access.
(h) Upon request, the Servicer shall furnish to the Trustee and
to the Certificate Insurer, within five Business Days, a list of all Receivables
(by contract number and name of Obligor) then held as part of the Trust,
together with a reconciliation of such list to the Schedule of Receivables and
to each of the Servicer's Certificates furnished before such request indicating
removal of Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee and the Certificate
Insurer:
a. promptly after the execution and delivery of this
Agreement and of each amendment hereto and at the time of any
merger, consolidation or succession of the Seller or the
Servicer, 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 first priority
perfected security interest of the 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
b. by December 31 of each calendar year beginning
December 31, 1998, an Opinion of Counsel, dated as of a date
during the 90-day period ending on 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
first priority perfected security interest of the 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.
SECTION 12.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations, and
liabilities of the parties to this Agreement or any of them.
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No Certificateholder shall have any right to vote (except as
provided in Section 9.1, 9.4, 12.1, 12.3 or 12.7) or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties to this Agreement, nor shall anything in this Agreement set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken pursuant to any provision of this Agreement.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to this
Agreement, unless the Certificateholders previously shall have received the
written consent of the Certificate Insurer and shall have given to the Trustee a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates evidencing not less than
25% of the Certificate Principal Balance shall have made written request upon
the Trustee to institute such action, suit, or proceeding in its own name as
Trustee under this Agreement and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after its receipt of such notice, request, and offer of indemnity, shall have
neglected or refused to institute any such action, suit, or proceeding and
during such 30-day period no direction inconsistent with such written request
has been given to the Trustee pursuant to Section 9.4; no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb, or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder (except as expressly set forth herein with respect to a Class
of Certificates), or to enforce any right, under this Agreement except in the
manner provided in this Agreement and for the equal, ratable, and common benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section 12.3, each Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 12.4 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES) APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
WITHIN THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.5 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 or the Servicer, to the
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agent for service as specified in this Agreement, at the following address:
Chevy Chase Bank, F.S.B., 8401 Connecticut Avenue, 6th Floor, Chevy Chase,
Maryland 20815, Attention: General Counsel, or at such other address as shall be
designated by the Seller or the Servicer in a written notice to the Trustee and
(b) in the case of the Trustee, at the Corporate Trust Office, (c) in the case
of the Certificate Insurer, at 113 King Street, Armonk, New York 10504,
Attention: Insured Portfolio Management Structured Finance. Any notice required
or permitted to be mailed 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, whether or not the
Certificateholder shall receive such notice.
SECTION 12.6 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 the rights of the Holders thereof or
the rights of the Certificate Insurer.
SECTION 12.7 ASSIGNMENT.
Notwithstanding anything to the contrary contained herein,
except as provided in Sections 7.3 and 8.3 and as provided in the provisions of
this Agreement concerning the resignation of the Servicer, this Agreement may
not be assigned by the Seller or the Servicer without the prior written consent
of (x) the Certificate Insurer or (y) the Trustee or the Majority
Certificateholders, in either case acting with the consent of the Certificate
Insurer.
SECTION 12.8 CERTIFICATES NONASSESSABLE AND FULLY PAID.
Certificateholders shall not be personally liable for
obligations of the Trust. The interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any reason
whatsoever, and, upon authentication thereof by the Trustee pursuant to Section
6.2, Certificates shall be deemed fully paid.
SECTION 12.9 COUNTERPARTS.
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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SECTION 12.10 BENEFITS OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding
upon the parties hereto, the Certificateholders and their respective successors
and assigns, and to the extent provided herein, the Certificate Insurer. Without
limiting the generality of the foregoing, all covenants and agreements in this
Agreement which expressly confer rights upon the Certificate Insurer shall be
for the benefit of and run directly to the Certificate Insurer, and the
Certificate Insurer shall be entitled to rely on and enforce such covenants to
the same extent as if it were a party hereto. Except as otherwise provided in
this Agreement, no other person shall have any rights or obligations hereunder.
SECTION 12.11 TAX TREATMENT.
The parties hereto agree that the Trust created hereby will at all times be
characterized as a grantor trust for federal, state and local income tax
purposes.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
CHEVY CHASE BANK, F.S.B.,
as Seller and Servicer
By: /s/ Mark A. Holles
-------------------------
Name: Mark A. Holles
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Edward F. Kachinski
-------------------------
Name: Edward F. Kachinski
Title: Vice President
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EXHIBIT A
SCHEDULE OF RECEIVABLES
EXHIBIT B-1
FORM OF CLASS A CERTIFICATE
UNLESS THIS CLASS A CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CLASS A 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.
CHEVY CHASE AUTO RECEIVABLES TRUST 1997-3
6.20% AUTO RECEIVABLES BACKED CERTIFICATE, CLASS A
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail installment sale
contracts secured by the new and used automobiles, light duty trucks
and vans financed thereby and sold to the Trust by Chevy Chase Bank,
F.S.B. The Final Scheduled Distribution Date is March 22, 2004.
This Class A Certificate does not represent an interest in or obligation of
Chevy Chase Bank, F.S.B. or any of its affiliates. This Certificate is not a
savings account or a deposit and neither this Class A Certificate nor the
underlying Receivables (as defined below), any collections thereon or other
property are insured or guaranteed by the Savings Association Insurance Fund,
the Federal Deposit Insurance Corporation or any other government agency. This
Class A Certificate is limited in right of payment to certain collections in
respect of the Receivables and, under certain circumstances, proceeds of the
Certificate Insurance Policy and amounts available in the Reserve Account and
Yield Maintenance Account.
NUMBER: A-[ ] CUSIP: 166778 AG
5 $
THIS CERTIFIES THAT ____________________ is the registered owner of
____________________ ($__________) nonassessable, fully-paid, fractional
undivided interest in the Chevy Chase Auto Receivables Trust 1997-3 (the
"Trust") formed by Chevy Chase Bank, F.S.B. (the "Bank," the "Seller" or the
"Servicer"). The Trust was created pursuant to a Pooling and Servicing Agreement
dated as of September 1, 1997 (the "Agreement") among the Bank, as
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Seller and Servicer, and U.S. Bank National Association, doing business as First
Bank National Association, as Trustee (the "Trustee"). A summary of certain of
the pertinent provisions of the Agreement is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the meanings
assigned to them in the Agreement.
This Class A Certificate is one of the duly authorized Class A
Certificates issued under the Agreement and designated as "Chevy Chase Auto
Receivables Trust 1997-3 6.20% Auto Receivables Backed Certificates, Class A"
(the "Class A Certificates"). Also issued under the Agreement are Certificates
designated as "Chevy Chase Auto Receivables Trust 9.00% Auto Receivables Backed
Certificates, Class B" (the "Class B Certificates" and, together with the Class
A Certificates, the "Certificates"). The Class B Certificates are subordinated
to the Class A Certificates to the extent described in the Agreement. The
aggregate undivided interest in the Trust evidenced by all Class A Certificates
is 96.0%. This Class A Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Class A Certificate by virtue of the acceptance hereof assents and by which
such Holder is bound. In the event of any inconsistency between the terms of
this Certificate and the terms of the Agreement, the terms of the Agreement
shall govern.
The property of the Trust includes, among other things, a pool of
retail installment sale contracts and installment loans (the "Receivables") for
the new and used automobiles, light duty trucks and vans financed thereby (the
"Financed Vehicles"), certain monies due under the Receivables on and after the
Cut-Off Date, security interests in the Financed Vehicles, certain accounts and
the proceeds thereof, proceeds from claims on physical damage, credit life and
disability insurance policies covering the Financed Vehicles or the related
Obligors and the right of the Seller to receive any proceeds from recourse to
Dealers relating to the Receivables.
Under the Agreement, there will be distributed on the twentieth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on October 20, 1997, to the Person
in whose name this Class A Certificate is registered at the close of business on
the last calendar day immediately preceding the related Distribution Date or, if
Definitive Certificates in respect of the Class A Certificates are issued, the
last day of the month immediately preceding the month of such distribution
(each, a "Record Date"), such Class A Certificateholder's percentage interest in
an amount equal to the Class A Monthly Interest and Class A Monthly Principal
for such Distribution Date, together with any outstanding Class A Interest
Carryover Shortfall and any outstanding Class A Principal Carryover Shortfall,
all to the extent and as more specifically set forth in the Agreement.
Distributions on this Class A Certificate will be made by the Trustee
by wire transfer (if wiring instructions are received from the
Certificateholder) or, in the absence of instructions, by check, to the related
Class A Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class A Certificate or the making of any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Class A Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A
B-1-2
<PAGE>
Certificate at the office or agency maintained for that purpose by the Trustee
in the Borough of Manhattan, The City of New York.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, or any of their respective affiliates. Under no
circumstances shall U.S. Bank National Association in its individual capacity be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement or the
Certificates. Each of the Agreement and this Class A Certificate has been
executed and delivered by U.S. Bank National Association, not its individual
capacity but solely as trustee of the Trust. Each of the representations (other
than the representations and warranties of the Trustee set forth in Section
10.13), undertakings and agreements made by U.S. Bank National Association in
the Agreement is made on the part of the Trust and intended not as a
representation, undertaking or agreement by U.S. Bank National Association in
its individual capacity, but is made and intended for the purpose of binding
only the Trust. The Class A Certificates are limited in right of payment to
certain collections and recoveries respecting the Receivables, the monies on
deposit in the Reserve Account and Yield Maintenance Account and proceeds of the
Certificate Insurance Policy, all as more specifically set forth in the
Agreement. A copy of the Agreement will be provided to Class A
Certificateholders without charge on written request addressed to the Trustee's
Corporate Trust Department at 180 East 5th Street, St. Paul, Minnesota 55101
Attn: Structured Finance/ Chevy Chase 1997-3.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof by the Seller, the Servicer and the Trustee, without the
consent of any of the Certificateholders but with the prior written consent of
the Certificate Insurer (so long as an Insurer Default shall not have occurred
and be continuing), to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or to correct any typographical error or to add
any other provisions with respect to matters or questions arising under this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder; provided, further, that in no event shall such action (i)
amend, modify or limit the Certificate Insurer's rights to receive payments
owing it under the Agreement, (ii) any rights to indemnification to which the
Certificate Insurer is entitled under the Agreement or (ii) any defined terms
used in any provisions of the Agreement referenced in the preceding clauses (i)
or (ii).
The Agreement may also be amended from time to time by the Seller, the
Servicer and the Trustee with the consent of the Certificate Insurer and the
Majority 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 Holders of Certificates;
provided, however, that no such amendment shall, without the consent of the
Holders of all Certificates then outstanding, reduce the aforesaid percentage
required to consent to any such amendment. In no case may any such amendment
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Certificate without the consent of the Holder of such
Certificate.
B-1-3
<PAGE>
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Class A Certificate is registrable in the
Certificate Register upon surrender of this Class A Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor Certificate Registrar, in the City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class A Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Class A Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof
(except for one Class A Certificate in a smaller minimum denomination
representing any remaining portion of the Original Class A Certificate Balance).
As provided in the Agreement and subject to certain limitations therein set
forth, Class A Certificates are exchangeable for new Class A Certificates of
authorized denominations evidencing the same aggregate principal amount, as
requested by the Holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
Prior to due presentation of this Class A Certificate for transfer, the
Trustee, the Certificate Registrar and any of their respective agents may treat
the Person in whose name this Class A Certificate is registered as the owner
hereof for the purpose of receiving distributions and for all other purposes,
and neither the Trustee, the Certificate Registrar, the Certificate Insurer nor
any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the earlier of the payment to
Certificateholders and the Certificate Insurer of all amounts required to be
paid to them pursuant to the Agreement or the maturity or liquidation of the
last Receivable in accordance with the terms of the Agreement and the
disposition of any amounts received upon liquidation of any remaining
Receivables in the Trust in accordance with the terms of the Agreement. The
Seller may, at its option, purchase the corpus of the Trust at a price specified
in the Agreement, and such purchase of the Receivables and other property of the
Trust will effect early retirement of the Certificates; however, such right of
purchase is exercisable only on a Distribution Date following the Record Date on
which the Pool Balance is 5% or less of the Original Pool Balance.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Class A Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
B-1-4
<PAGE>
STATEMENT OF INSURANCE
The Certificate Insurer has issued the Certificate Insurance Policy
containing the following provisions, such Certificate Insurance Policy being on
file at the offices of the Trustee at 180 East 5th Street, St. Paul, Minnesota
55101.
The Certificate Insurer, in consideration of the payment of the premium
and subject to the terms of the Certificate Guaranty Insurance Policy (the
"Certificate Insurance Policy"), thereby unconditionally and irrevocably
guarantees to any Owner that an amount equal to each full and complete Insured
Payment will be received by U.S. Bank National Association, or its successor, as
trustee for the Owners of Class A Certificates (the "Trustee"), on behalf of the
Owners from the Certificate Insurer, for distribution by the Trustee to each
Owner of Class A Certificate of each Owner's proportionate share of the Insured
Payment. The Certificate Insurer's obligations under the Certificate Insurance
Policy with respect to a particular Insured Payment shall be discharged to the
extent funds equal to the applicable Insured Payment are received by the
Trustee, whether or not such funds are properly applied by the Trustee. Insured
Payments shall be made only at the time set forth in the Certificate Insurance
Policy and no accelerated Insured Payments shall be made regardless of any
acceleration of the Class A Certificates, unless such acceleration is at the
sole option of the Certificate Insurer.
Notwithstanding the foregoing paragraph, the Certificate Insurance
Policy does not cover shortfalls, if any, attributable to the liability of the
Trust or the Trustee for withholding taxes, if any (including interest and
penalties in respect of any such liability).
The Certificate Insurer will pay any Insured Payment that is a
Preference Amount on the Business Day following receipt on a Business Day by the
Fiscal Agent (as described below) of (i) a certified copy of the order requiring
the return of a preference payment, (ii) an opinion of counsel satisfactory to
the Certificate Insurer that such order is final and not subject to appeal,
(iii) an assignment in such form as is reasonably required by the Certificate
Insurer, irrevocably assigning to the Certificate Insurer all rights and claims
of the Owner relating to or arising under the Class A Certificates against the
debtor which made such preference payment or otherwise with respect to such
preference payment and (iv) appropriate instruments to effect the appointment of
the Certificate Insurer as agent for such Owner in any legal proceeding related
to such preference payment, such instruments being in a form satisfactory to the
Certificate Insurer, provided that if such documents are received after 12:00
noon New York City time on such Business Day, they will be deemed to be received
on the following Business Day. Such payments shall be disbursed to the receiver
or trustee in bankruptcy named in the final order of the court exercising
jurisdiction on behalf of the Owner and not to any Owner directly unless such
Owner has returned principal or interest paid on the Certificates to such
receiver or trustee in bankruptcy, in which case such payment shall be disbursed
to such Owner.
The Certificate Insurer will pay any other amount payable under the
Certificate Insurance Policy no later than 12:00 noon New York City time on the
later of the Distribution Date on which the related Deficiency Amount is due or
the third Business Day following receipt in New York, New York on a Business Day
by State Street Bank and Trust Company, N.A., as Fiscal Agent for the
Certificate Insurer or any successor fiscal agent appointed by the Certificate
Insurer (the "Fiscal Agent") of a Notice (as described below); provided that if
such Notice is received
B-1-5
<PAGE>
after 12:00 noon New York City time on such Business Day, it will be deemed to
be received on the following Business Day. If any such Notice received by the
Fiscal Agent is not in proper form or is otherwise insufficient for the purpose
of making claim under the Certificate Insurance Policy it shall be deemed not to
have been received by the Fiscal Agent for purposes of this paragraph, and the
Certificate Insurer or the Fiscal Agent, as the case may be, shall promptly so
advise the Trustee and the Trustee may submit an amended Notice.
Insured Payments due under the Certificate Insurance Policy unless
otherwise stated therein will be disbursed by the Fiscal Agent to the Trustee on
behalf of the Owners by wire transfer of immediately available funds in the
amount of the Insured Payment less, in respect of Insured Payments related to
Preference Amounts, any amount held by the Trustee for the payment of such
Insured Payment and legally available therefor.
The Fiscal Agent is the agent of the Certificate Insurer only and the
Fiscal Agent shall in no event be liable to Owners for any acts of the Fiscal
Agent or any failure of the Certificate Insurer to deposit, or cause to be
deposited, sufficient funds to make payments due under the Certificate Insurance
Policy.
As used in the Certificate Insurance Policy, the following terms shall
have the following meanings:
"Agreement" means the Pooling and Servicing Agreement dated as of
September 1, 1997 among Chevy Chase Bank, F.S.B., as Seller and as Servicer, and
the Trustee, as trustee, without regard to any amendment or supplement thereto,
unless such amendment or modification has been approved in writing by the
Certificate Insurer.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York City, Chevy Chase, Maryland or in the
city in which the corporate trust office of the Trustee under the Agreement or
the Certificate Insurer is located are authorized or obligated by law or
executive order to close.
"Deficiency Amount" means (a) the amount, if any, by which Class A
Monthly Interest and any unpaid Class A Interest Carryover Shortfall for any
Distribution Date exceeds the sum of (i) the Available Funds as of such
Distribution Date available for the payment of such Class A Monthly Interest and
Class A Interest Carryover Shortfall as of such Distribution Date and (ii) the
amount then available from the Reserve Account for the payment of such amount,
plus (b) the Insured Class A Principal Insufficiency Amount for such
Distribution Date.
"Insured Payment" means (i) as of any Distribution Date, any Deficiency
Amount and (ii) any Preference Amount.
"Notice" means the telephone or telegraphic notice, promptly confirmed
in writing by fax substantially in the form of Exhibit A attached to the
Certificate Insurance Policy, the original of which is subsequently delivered by
registered or certified mail, from the Trustee specifying the Insured Payment
which shall be due and owing on the applicable Distribution Date.
B-1-6
<PAGE>
"Owner" means each Holder (as defined in the Agreement) who, on the
applicable Distribution Date, is entitled under the terms of the Class A
Certificates to payment thereunder.
"Preference Amount" means any amount previously distributed to an Owner
on the Class A Certificates that is recoverable and sought to be recovered as a
voidable preference by a trustee in bankruptcy pursuant to the United States
Bankruptcy Code (11 U.S.C.), as amended from time to time, in accordance with a
final nonappealable order of a court having competent jurisdiction.
Capitalized terms used in the Certificate Insurance Policy and not
otherwise defined in the Certificate Insurance Policy shall have the respective
meanings set forth in the Agreement as of the date of execution of the
Certificate Insurance Policy, without giving effect to any subsequent amendment
or modification to the Agreement, unless such amendment or modification has been
approved in writing by the Certificate Insurer.
Any notice under the Certificate Insurance Policy or service of process
on the Fiscal Agent of the Certificate Insurer may be made at the address listed
below for the Fiscal Agent of the Certificate Insurer or such other address as
the Certificate Insurer shall specify in writing to the Trustee.
The notice address of the Fiscal Agent is 15th Floor, 61 Broadway, New
York, New York 10006 Attention: Municipal Registrar and Paying Agency, or such
other address as the Fiscal Agent shall specify to the Trustee in writing.
The Certificate Insurance Policy is being issued under and pursuant to,
and shall be construed under, the laws of the State of New York, without giving
effect to the conflict of laws principles thereof.
The insurance provided by the Certificate Insurance Policy is not
covered by the Property/Casualty Insurance Security Fund specified in Article 76
of the New York Insurance Law.
The Certificate Insurance Policy is not cancelable for any reason. The
premium on the Certificate Insurance Policy is not refundable for any reason
including payment, or provision being made for payment, prior to maturity of the
Class A Certificates.
MBIA Insurance Corporation
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<PAGE>
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class A Certificate to be duly executed.
CHEVY CHASE AUTO RECEIVABLES TRUST 1997-3
By: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee
Dated: By:
-------- --, ---------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Dated: By:
-------- --, -----------------------------------
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<PAGE>
Authorized Officer
B-1-9
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
----------------------------
OR OTHER IDENTIFYING NUMBER
----------------------------
OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
- -------------------------------------------------------------------------------
Attorney to transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
*
-------------------------------
Signature Guaranteed:
*
-------------------------------
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<PAGE>
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank or
the trust company.
B-1-11
<PAGE>
EXHIBIT B-2
FORM OF CLASS B CERTIFICATE
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE
CLASS A CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THE CLASS B CERTIFICATES ARE SUBJECT TO RESTRICTIONS ON THE TRANSFER OF
SUCH CERTIFICATES OR ANY INTEREST THEREIN, INCLUDING THE DELIVERY OF A
REPRESENTATION LETTER, AS DESCRIBED IN THIS CLASS B CERTIFICATE AND THE
AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CLASS B CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
PURCHASED OR TRANSFERRED UNLESS THE PURCHASER OR TRANSFEREE REPRESENTS TO THE
SELLER AND THE TRUSTEE THAT (1) SUCH PURCHASER OR TRANSFEREE IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT ("QIB"), PURCHASING FOR ITS OWN ACCOUNT, AND
(2) SUCH PURCHASER OR TRANSFEREE (A) IS NOT AN EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (A "PLAN"), NOR A PERSON ACTING ON
BEHALF OF A PLAN NOR, EXCEPT IN THE CASE OF AN "INSURANCE COMPANY GENERAL
ACCOUNT" (AS DEFINED BELOW), USING THE PLAN ASSETS OF A PLAN TO EFFECT SUCH
PURCHASE OR TRANSFER, AND (B) IS NOT AN INSURANCE COMPANY PURCHASING SUCH
CERTIFICATE OR BENEFICIAL INTEREST THEREIN WITH FUNDS CONTAINED IN AN "INSURANCE
COMPANY GENERAL ACCOUNT" (AS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60 ("PTCE 95-60")) AS TO WHICH THERE IS A PLAN WITH RESPECT
TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE
CONTRACTS HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY
THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION V(a)(l) OF
B-2-1
<PAGE>
PTCE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEED 10% OF THE TOTAL OF ALL
RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED
UNDER SECTION I(a) OF PTCE 95-60) AT THE DATE OF ACQUISITION.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES THAT THIS SECURITY MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY TO A TRANSFEROR PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT, IN ACCORDANCE WITH RULE 144A (UPON DELIVERY OF
THE DOCUMENTATION REQUIRED BY THE AGREEMENT DESCRIBED HEREIN). THE HOLDER OF
THIS CLASS B CERTIFICATE, BY ACCEPTING AN OWNERSHIP INTEREST HEREIN, IS DEEMED
TO REPRESENT THAT IT IS A QIB PURCHASING FOR ITS OWN ACCOUNT. THIS CLASS B
CERTIFICATE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT UPON THE
PRESENTATION OF EVIDENCE SATISFACTORY TO THE TRANSFER AGENT AND THE REGISTRAR
THAT THE RESTRICTIONS SET FORTH IN THIS CLASS B CERTIFICATE AND IN THE AGREEMENT
REFERRED TO HEREIN HAVE BEEN COMPLIED WITH.
[If applicable: UNLESS THIS CLASS B CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CLASS A 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.]
B-2-2
<PAGE>
CHEVY CHASE AUTO RECEIVABLES TRUST 1997-3
9.00% AUTO RECEIVABLES BACKED CERTIFICATE, CLASS B
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail installment sale
contracts secured by the new and used automobiles, light duty trucks
and vans financed thereby and sold to the Trust by Chevy Chase Bank,
F.S.B. The Final Scheduled Distribution Date is March 22, 2004.
This Class B Certificate does not represent an interest in or obligation of
Chevy Chase Bank, F.S.B. or any of its affiliates. This Class B Certificate is
not a savings account or a deposit and neither this Class B Certificate nor the
underlying Receivables (as defined below), any collections thereon or other
property are insured or guaranteed by the Savings Association Insurance Fund,
the Federal Deposit Insurance Corporation or any other government agency. This
Class B Certificate is limited in right of payment to certain collections in
respect of the Receivables and, under certain circumstances, amounts available
in the Reserve Account and Yield Maintenance Account.
NUMBER: B-[ ] $
THIS CERTIFIES THAT ____________________ is the registered owner of
____________________ ($________) nonassessable, fully-paid, fractional undivided
interest in the Chevy Chase Auto Receivables Trust 1997-3 (the "Trust") formed
by Chevy Chase Bank, F.S.B. (the "Bank," the "Seller" or the "Servicer"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
September 1, 1997 (the "Agreement") among the Bank, as Seller and Servicer, and
U.S. Bank National Association, doing business as First Bank National
Association, as trustee (the "Trustee"). A summary of certain of the pertinent
provisions of the Agreement is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement.
This Class B Certificate is one of the duly authorized Certificates
issued under the Agreement and designated as "Chevy Chase Auto Receivables Trust
1997-3 9.00% Auto Receivables Backed Certificates, Class B" (the "Class B
Certificates"). Also issued under the Agreement are Certificates designated as
"Chevy Chase Auto Receivables Trust 1997-3, 6.20% Auto Receivables Backed
Certificates, Class A" (the "Class A Certificates" and, together with the Class
B Certificates, the "Certificates"). The Class B Certificates are subordinated
to the Class A Certificates to the extent described in the
B-2-3
<PAGE>
Agreement. The aggregate undivided interest in the Trust evidenced by all Class
B Certificates is 4.0%. This Class B Certificate is issued under and is subject
to the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Class B Certificate by virtue of the acceptance hereof assents
and by which such Holder is bound. In the event of any inconsistency between the
terms of this Certificate and the terms of the Agreement, the terms of the
Agreement shall govern.
The property of the Trust includes, among other things, a pool of
retail installment sale contracts and installment loans (the "Receivables") for
the new and used automobiles, light duty trucks and vans financed thereby (the
"Financed Vehicles"), certain monies due under the Receivables on and after the
Cut-Off Date, security interests in the Financed Vehicles, certain accounts and
the proceeds thereof, proceeds from claims on physical damage, credit life and
disability insurance policies covering the Financed Vehicles or the related
Obligors and the right of the Seller to receive any proceeds from recourse to
Dealers relating to the Receivables.
Under the Agreement, there will be distributed on the twentieth day of
each month or, if such day is not a Business Day, the next succeeding Business
Day (each, a "Distribution Date"), commencing on October 20, 1997, to the Person
in whose name this Class B Certificate is registered at the close of business on
the last calendar day immediately preceding the related Distribution Date or, if
Definitive Certificates in respect of the Class B Certificates are issued, the
last day of the month immediately preceding the month of such distribution
(each, a "Record Date"), such Class B Certificateholder's percentage interest in
an amount equal to the Class B Monthly Interest and Class B Monthly Principal
for such Distribution Date, together with any outstanding Class B Interest
Carryover Shortfall and any outstanding Class B Principal Carryover Shortfall,
all to the extent and as more specifically set forth in the Agreement.
Distributions on this Class B Certificate will be made by the Trustee
by wire transfer (if wiring instructions are received from the
Certificateholder) or, in the absence of instructions, by check, to the related
Class B Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class B Certificate or the making of any
notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Class B Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for that purpose by the Trustee
in the Borough of Manhattan, The City of New York.
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, or any of their respective affiliates. Under no
circumstances shall U.S. Bank National Association in its individual capacity be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under the Agreement or the
Certificates. Each of the Agreement and this Class B Certificate has been
executed and delivered by U.S. Bank National Association, not its individual
capacity but solely as trustee of the Trust. Each of the representations (other
B-2-4
<PAGE>
than the representations and warranties of the Trustee set forth in Section
10.13), undertakings and agreements made by U.S. Bank National Association in
the Agreement is made on the part of the Trust and intended not as a
representation, undertaking or agreement by U.S. Bank National Association in
its individual capacity, but is made and intended for the purpose of binding
only the Trust. The Class B Certificates are limited in right of payment to
certain collections and recoveries respecting the Receivables and the monies on
deposit in the Reserve Account and Yield Maintenance Account, all as more
specifically set forth in the Agreement. A copy of the Agreement will be
provided to Class B Certificateholders without charge on written request
addressed to the Trustee's Corporate Trust Department at 180 East 5th Street,
St. Paul, Minnesota 55101 Attn: Structured Finance/ Chevy Chase 1997-3.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof by the Seller, the Servicer and the Trustee, without the
consent of any of the Certificateholders but with the prior written consent of
the Certificate Insurer (so long as an Insurer Default shall not have occurred
and be continuing), to cure any ambiguity or defect, to correct or supplement
any provisions in this Agreement or to correct any typographical error or to add
any other provisions with respect to matters or questions arising under this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder; provided, further, that in no event shall such action (i)
amend, modify or limit the Certificate Insurer's rights to receive payments
owing it under the Agreement, (ii) any rights to indemnification to which the
Certificate Insurer is entitled under the Agreement or (ii) any defined terms
used in any provisions of the Agreement referenced in the preceding clauses (i)
or (ii).
The Agreement may also be amended from time to time by the Seller, the
Servicer and the Trustee with the consent of the Certificate Insurer and the
Majority 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 Holders of Certificates;
provided, however, that no such amendment shall, without the consent of the
Holders of all Certificates then outstanding, reduce the aforesaid percentage
required to consent to any such amendment. In no case may any such amendment
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made on any Certificate without the consent of the Holder of such
Certificate.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Class B Certificate is registrable in the
Certificate Register upon surrender of this Class B Certificate for registration
of transfer at the offices or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor Certificate Registrar, in the City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one
B-2-5
<PAGE>
or more new Class B Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
No purchase or transfer of a Class B Certificate or beneficial interest
therein shall be made unless the Trustee shall have received a representation
from the purchaser or the transferee thereof acceptable to and in form and
substance satisfactory to the Seller and the Trustee to the effect that (1) such
purchaser or transferee is an "accredited investor" as defined in Rule 501(a)
under the Securities Act of 1933, as amended (the "Securities Act") and a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
(a "QIB"), purchasing for its own account, and (2) to the effect that such
purchaser or transferee (A) is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code (a
"Plan"), nor a Person acting on behalf of a Plan nor, except in the case of an
"insurance company general account" (as defined below), using the plan assets of
a Plan to effect such purchase or transfer, and (B) is not an insurance company
purchasing a Class B Certificate or beneficial interest therein with funds
contained in an "insurance company general account" (as defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) as to which
there is a Plan with respect to which the amount of such general account's
reserves and liabilities for the contracts held by or on behalf of such Plan and
all other Plans maintained by the same employer (or affiliate thereof as defined
in Section V(a)(l) of PTCE 95-60) or by the same employee organization exceed
10% of the total of all reserves and liabilities of such general account (as
such amounts are determined under Section I(a) of PTCE 95-60) at the date of
acquisition.
[If applicable: With respect to a Class B Certificate that is a
Book-Entry Certificate, the representations contained in the preceding sentence
shall be deemed to have been made to the Trustee by the transferee's (or the
initial acquiror's) acceptance of a beneficial interest in the Class B
Certificates.] Notwithstanding anything else to the contrary herein, any
purported transfer of a Class B Certificate or a beneficial interest therein to
or on behalf of an employee benefit plan subject to ERISA or to the Code or a
person acting on behalf of a Plan or using the assets of a Plan to effect such
transfer or to an insurance company purchasing with funds from a general account
not exempt pursuant to PTCE 95-60 shall be void and of no effect.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $500,000 and integral multiples of $100,000
in excess thereof (except for one Class B Certificate in a smaller minimum
denomination representing any remaining portion of the Original Class B
Certificate Balance). As provided in the Agreement and subject to certain
limitations therein set forth, Class B Certificates are exchangeable for new
Class B Certificates of authorized denominations evidencing the same aggregate
principal amount, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Trustee may require payment of a sum sufficient to cover any tax or governmental
charges payable in connection therewith.
B-2-6
<PAGE>
Prior to due presentation of this Class B Certificate for transfer, the
Trustee, the Certificate Registrar and any of their respective agents may treat
the Person in whose name this Class B Certificate is registered as the owner
hereof for the purpose of receiving distributions and for all other purposes,
and neither the Trustee, the Certificate Registrar nor any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the earlier of the payment to
Certificateholders and the Certificate Insurer of all amounts required to be
paid to them pursuant to the Agreement or the maturity or liquidation of the
last Receivable in accordance with the terms of the Agreement and the
disposition of any amounts received upon liquidation of any remaining
Receivables in the Trust in accordance with the terms of the Agreement. The
Seller may, at its option, purchase the corpus of the Trust at a price specified
in the Agreement, and such purchase of the Receivables and other property of the
Trust will effect early retirement of the Certificates; however, such right of
purchase is exercisable only on a Distribution Date following the Record Date on
which the Pool Balance is 5% or less of the Original Pool Balance.
Unless the certificate of authentication hereon shall have been executed by an
authorized officer of the Trustee, by manual signature, this Class B Certificate
shall not entitle the Holder hereof to any benefit under the Agreement or be
valid for any purpose.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class B Certificate to be duly executed.
CHEVY CHASE AUTO RECEIVABLES TRUST 1997-3
By: U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Trustee
Dated: By:
-------- --, -------------------------------------
Authorized Officer
B-2-7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Dated: By:
-------- --, ---- -------------------------------
Authorized Officer
B-2-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
-----------------------------
OR OTHER IDENTIFYING NUMBER
-----------------------------
OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address, including postal zip code, of
assignee)
- --------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
___________________________________________________________________Attorney to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
*
---------------------
Signature Guaranteed:
*
---------------------
B-2-8
<PAGE>
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank or
the trust company.
B-2-9
<PAGE>
EXHIBIT C
FORM OF TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 10.2
OF THE POOLING AND SERVICING AGREEMENT
U.S. Bank National Association, doing business as First Bank National
Association, as trustee (the "Trustee") of the Chevy Chase Auto Receivables
Trust 1997-3 created pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of September 1, 1997, between Chevy
Chase Bank, F.S.B. (the "Seller" and the "Servicer") and the Trustee, does
hereby sell, transfer, assign and otherwise convey to the Seller, without
recourse, representation or warranty, all of the Trustee's right, title and
interest in and to all of the Receivables (as defined in the Pooling and
Servicing Agreement) identified in the attached Servicer's Certificate as
"Purchased Receivables," which are to be repurchased by the Seller pursuant to
Sections 3.2 or 11.2, and all Insurance Policies, security and documents
relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
___________, 199__.
--------------------------------
C-1
<PAGE>
EXHIBIT D
FORM OF TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 10.2
OF THE POOLING AND SERVICING AGREEMENT
U.S. Bank National Association, doing business as First Bank National
Association, as trustee (the "Trustee") of the Chevy Chase Auto Receivables
Trust 1997-3 created pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of September 1, 1997, between Chevy
Chase Bank, F.S.B. (the "Seller" and the "Servicer") and the Trustee, does
hereby sell, transfer, assign and otherwise convey to the Servicer, without
recourse, representation or warranty, all of the Trustee's right, title and
interest in and to all of the Receivables (as defined in the Pooling and
Servicing Agreement) identified in the attached Servicer's Certificate as
"Purchased Receivables," which are to be purchased by the Servicer pursuant to
Sections 4.2, 4.7 or 11.2, and all Insurance Policies, security and documents
relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
_________, 199__.
----------------------------------
D-1
<PAGE>
EXHIBIT E
FORM OF SERVICER'S CERTIFICATE
CHEVY CHASE AUTO RECEIVABLES TRUST 1997-3
6.20% AUTO RECEIVABLES BACKED CERTIFICATES, CLASS A
9.00% AUTO RECEIVABLES BACKED CERTIFICATES, CLASS B
Distribution Date: _______________
Collection Period: _______________
Record Date: ________________
Under the Pooling and Servicing Agreement, dated as of September 1,
1997, between Chevy Chase Bank, F.S.B. (as "Seller" and "Servicer") and U.S.
Bank National Association, doing business as First Bank National Association, as
trustee, the Servicer is required to prepare certain information each month
regarding current distributions to Certificateholders and the performance of the
Chevy Chase Auto Receivables Trust 1997-3 (the "Trust") during the previous
month. The information which is required to be prepared with respect to the
Distribution Date and Collection Period listed above is set forth below. Certain
of the information is presented on the basis of an original principal amount of
$1,000 per Certificate, and certain other information is presented based upon
the aggregate amounts for the Trust as a whole.
A. Information Regarding the Current Monthly Distribution.
1. Certificates.
----------------
The aggregate amount of the distribution to Class A
(a) Certificateholders on the Distribution Date set forth
above $
(b) The amount of the distribution set forth in paragraph
(a) above allocable to principal, including any overdue
principal $
(c) The amount of the distribution set forth in paragraph
(a) above allocable to interest, including any overdue
interest $
E-1
<PAGE>
The aggregate amount of the distribution to Class B
(d) Certificateholders on the Distribution Date set forth
above $
(e) The amount of the distribution set forth in paragraph
(d) above allocable to principal, including any overdue
principal $
(f) The amount of the distribution set forth in paragraph
(d) above allocable to interest, including any overdue
interest $
(g) The Insured Payments, if any, with respect to such
Distribution Date $
(h) The Premium Amount, with respect to such Distribution
Date $
(i) The amount of the distribution set forth in paragraph
(a) above, per Class A Certificate in a principal
amount of $1,000 $
(j) The amount of the distribution set forth in paragraph
(b) above, per Class A Certificate in a principal
amount of $1,000 $
(k) The amount of the distribution set forth in paragraph
(c) above, per Class A Certificate in a principal
amount of $1,000 $
(l) The amount of the distribution set forth in paragraph
(d) above, per Class B Certificate in a principal
amount of $1,000 $
(m) The amount of the distribution set forth in paragraph
(e) above, per Class B Certificate in a principal
amount of $1,000 $
(n) The amount of the distribution set forth in paragraph
(f) above, per Class B Certificate in a principal
amount of $1,000 $
E-2
<PAGE>
(o) The amount set forth in paragraph (g) above, per Class
A Certificate in a principal amount of $1,000 $
(p) The Class A Certificate Principal Balance as of such
Distribution Date (after giving effect to any
distribution on $ such Distribution Date) $
(q) The Class B Certificate Principal Balance as of such
Distribution Date (after giving effect to any
distribution on such Distribution Date)
(r) Reserve Account Withdrawal Amount $
(s) The balance of the Reserve Account, after giving effect
to distributions and deposits and the change in the
balances from that of the prior Distribution Date $
(t) Yield Maintenance Withdrawal Amount $
(u) The balance of the Yield Maintenance Account, after
giving effect to distributions from the prior
Distribution Date $
(v) Monthly Servicing Fee $
(w) Monthly Trustee's Fee $
(x) Principal Carryover Shortfalls (and change from prior
Distribution Date)
Class A $
Class B $
(y) Interest Carryover Shortfalls (and change from prior
Distribution Date)
Class A $
Class B $
(z) Amounts otherwise distributable to the Class B
Certificateholders distributed to the Class A
Certificateholders or deposited into the Reserve
Account $
<PAGE>
(aa) Aggregate of all Purchase Amounts received on the
related Determination Date $
(bb) Aggregate amount received with respect to Defaulted
Receivables, including Liquidation Proceeds, during
the related Collection Period
(cc) the Reimbursement Amount for such Distribution Date $
B. Information Regarding the Performance of the Trust.
1. Net Losses, Delinquencies and Pool Balance.
----------------------------------------------
The aggregate Net Losses on the Receivables for the
(a) related Collection Period $
(b) Delinquency Percentage relating to such Distribution
Date %
(c) The aggregate Principal Balance of all Receivables which
were delinquent 30 days or more as of the last day of the
related Collection Period $
(d) The Pool Balance as of the end of the related Collection
Period $
(e) The Class A Pool Factor as of the end of the related
Collection Period
(f) The Class B Pool Factor as of the end of the related
Collection Period
E-4
<PAGE>
EXHIBIT F
LIST OF DESIGNATED LOANS
F-1
<PAGE>
EXHIBIT G
FORM OF
REPRESENTATION LETTER
Chevy Chase Auto Receivables Trust 1997-3
9.00% Auto Receivables Backed Certificates, Class B
The undersigned hereby represents and warrants to U.S. Bank National
Association, doing business as First Bank National Association, as trustee (the
"Trustee") of the above-named trust, as follows:
I am the ____________________ (fill in title) of
_________________________, the proposed transferee ("Transferee") of an
ownership interest in a Class B Certificate (the "Certificate") issued pursuant
to the Pooling and Servicing Agreement (the "Agreement") dated as of September
1, 1997, relating to the above-referenced securities, each among Chevy Chase
Bank, F.S.B., as seller (the "Seller") and servicer, and the Trustee.
Capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Agreement. The undersigned is authorized by the Transferee to
make the following representations and warranties on behalf of Transferee.
(a) The Transferee agrees to require a Representation Letter substantially
in the form of this Representation Letter from any Person to whom the Transferee
attempts to transfer its interest in the Certificate and in connection with any
Transfer by a Person for whom the Transferee is acting as nominee, trustee or
agent. The Transferee will not transfer its interest or cause any interest to be
transferred to any Person that the Transferee knows cannot truthfully complete
such a Representation Letter.
(b) The Transferee is (i) an "accredited investor" as defined in Rule
501(a) under the Securities Act of 1933, as amended (the "Securities Act") and
(ii) a "qualified institutional buyer" as defined in Rule 144A under Securities
Act ("QIB"), purchasing for its own account.
(c) The Transferee agrees that it will not reoffer, resell, pledge or
otherwise transfer the Class B Certificate or any interest therein except in
compliance with the Securities Act and other applicable laws and only in a
transfer pursuant to Rule 144A under the Securities Act to a person that the
holder reasonably believes is a QIB purchasing for its own account, in
accordance with Rule 144A (upon delivery of the documentation required by the
agreement described herein).
(d) The Transferee is not (A) an employee benefit plan or arrangement
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code (a
"Plan"), nor a Person acting on behalf of a Plan nor, except in the case of an
"insurance company general account" (as defined below), using the plan assets of
a Plan to effect such transfer, and (B) is not an insurance company purchasing a
Class B Certificate or beneficial interest therein with funds contained in an
"insurance company general account" (as defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) as to which there is a Plan
with respect to which the amount of such general account's reserves and
liabilities for the contracts held by or on behalf of
G-1
<PAGE>
such Plan and all other Plans maintained by the same employer (or affiliate
thereof as defined in Section V(a)(l) of PTCE 95-60) or by the same employee
organization exceed 10% of the total of all reserves and liabilities of such
general account (as such amounts are determined under Section I(a) of PTCE 95-
60) at the date of acquisition.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed this ___ day of ___________, 19__.
-----------------------------
Print Name of Transferee
By:
----------------------------
Name:
Title:
G-2
<PAGE>
Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Agreement, dated as of September 18, 1997, is by and among MBIA
Insurance Corporation, a New York stock insurance corporation (the "Certificate
Insurer"), as the Certificate Insurer under the certificate guaranty insurance
policy (the "Policy") to be issued in connection with the Certificates described
below, Chevy Chase Bank, F.S.B. (the "Bank") and Credit Suisse First Boston
Corporation, as Representative (the "Representative") of itself, J.P. Morgan
Securities Inc. and Smith Barney Inc. (collectively, the "Underwriters").
1. Definitions. As used in this Agreement, the following terms shall
-----------
have the respective meanings stated below:
"Act" means the Securities Act of 1933, as amended, together with all
related rules and regulations.
"Agreement" means this Indemnification Agreement by and among the
Certificate Insurer, the Bank and the Representative.
"Bank Party" means the Bank, its parents, subsidiaries and affiliates
and any shareholder, director, officer, employee, agent or any "controlling
person" (as such term is used in the Act) of any of the foregoing.
"Certificates" means the Auto Receivables Backed Certificates, Class
A, issued by the Chevy Chase Auto Receivables Trust 1997-3 pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
dated as of September 1, 1997 between the Bank, as seller and servicer, and
U.S. Bank National Association, doing business as First Bank National
Association, as trustee.
"Indemnified Party" means any party entitled to any indemnification
pursuant to Section 5 below, as the context requires.
"Indemnifying Party" means any party required to provide
indemnification pursuant to Section 5 below, as the context requires.
"Insurer Party" means the Certificate Insurer, its parents,
subsidiaries and affiliates and any shareholder, director, officer,
employee, agent or any "controlling person" (as such term is used in the
Act) of any of the foregoing.
<PAGE>
"Losses" means (i) any actual out-of-pocket loss paid by the party
entitled to indemnification or contribution hereunder, and (ii) any actual
out-of-pocket costs and expenses paid by such party, including reasonable
fees and expenses of its counsel, to the extent not paid, satisfied or
reimbursed from funds provided by any other Person
(provided that the foregoing shall not create or imply any obligation
to pursue recourse against any such other Person).
"Person" means any individual, partnership, joint venture,
corporation, limited liability company, trust or unincorporated
organization or any government or agency or political subdivision thereof.
"Prospectus" means the form of final Prospectus Supplement, dated
September 18, 1997 to the Prospectus dated September 17, 1997, included in
the Registration Statement.
"Registration Statement" means the registration statement on Form S-3
of the Bank on behalf of the Chevy Chase Auto Receivables Trust 1997-3
(Registration No. 333-21707) relating to the Certificates in the form
in which it has become effective, as supplemented by the Prospectus.
"State Securities Law" means any state, local or foreign statute, and
any rule or regulation thereunder, regulating (i) transactions and dealings
in securities, (ii) any person or entity engaging in such transactions or
advising with respect to securities or (iii) investment companies.
"Underwriting Agreement" means the Underwriting Agreement by and
between the Bank and the Representative, dated September 18, 1997.
"Underwriter Party" means each of the Underwriters, its respective
parents, subsidiaries and affiliates and any shareholder, director,
officer, employee, agent or "controlling person" (as such term is used in
the Act) of any of the foregoing.
2
<PAGE>
2. Representations and Warranties of the Certificate Insurer. The
---------------------------------------------------------
Certificate Insurer represents and warrants to the Underwriters and the Bank as
follows:
(a) Organization and Licensing. The Certificate Insurer is a duly
--------------------------
incorporated and existing New York stock insurance corporation licensed to
do business in the State of New York.
(b) Corporate Power. The Certificate Insurer has the corporate
---------------
power and authority to issue the Policy and execute and deliver this
Agreement and to perform all of its obligations hereunder and thereunder.
(c) Authorization; Approvals. The issuance of the Policy and the
------------------------
execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate proceedings. No further approvals or
filings of any kind, including, without limitation, any further approvals
of or further filing with any governmental agency or other governmental
authority, or any approval of the Certificate Insurer's board of directors
or stockholders, are necessary for the Policy and this Agreement to
constitute the legal, valid and binding obligations of the Certificate
Insurer.
(d) No Conflicts. The execution and delivery of this Agreement and
------------
consummation of the transactions contemplated hereunder will not result in
the breach of any terms or provisions of the certificate of incorporation
or by-laws of the Certificate Insurer, or result in the breach of a term or
provision of, or conflict with or constitute a default under or result in
the acceleration of any obligation under, any material agreement or other
material instrument to which the Certificate Insurer or its property is
subject, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Certificate Insurer or any of its property
is subject or result in the creation of any lien on any of the Certificate
Insurer's assets or property (other than pursuant to this Agreement).
(e) Enforceability. The Policy, when issued, and this Agreement
--------------
will each constitute a legal, valid and binding obligation of the
Certificate Insurer, enforceable in accordance with its terms subject, as
to enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforceability of creditors'
rights generally applicable in the event of the bankruptcy, insolvency or
reorganization of the Certificate Insurer and to general principles of
equity.
(f) Financial Information. The consolidated financial statements
---------------------
of the Certificate Insurer as of December 31, 1996 and December 31, 1995
and for the three years in the period ended December 31, 1996 incorporated
by referenced in the Prospectus (the "Insurer Audited Financial
Statements"), fairly present in all material respects the financial
condition of the Certificate Insurer as of such dates and for the period
covered by such statements in accordance with generally accepted accounting
principles consistently applied. The consolidated financial
3
<PAGE>
statements of the Certificate Insurer and its subsidiaries for the six
months ended June 30, 1997 and for the periods ending June 30, 1997 and
June 30, 1996 incorporated by reference in the Prospectus (the "Insurer
Unaudited Financial Statements") present fairly in all material respects
the financial condition of the Certificate Insurer as of such date and for
the periods covered by such statements in accordance with generally
accepted accounting principles applied in a manner consistent with the
accounting principles used in preparing the Insurer Audited Financial
Statements, and, since June 30, 1997 there has been no material change in
such financial condition of the Insurer which would materially and
adversely affect its ability to perform its obligations under the Policy.
(g) Insurer Information. The information in the Prospectus as of
-------------------
the date hereof under the captions "The Certificate Insurer" and "The
Certificate Insurance Policy" (collectively, the "Insurer Information") is
true and correct in all material respects and does not contain any untrue
statement of a fact that is material to the Certificate Insurer's ability
to perform its obligations under the Policy.
(h) Limitations. Nothing in this Agreement shall be construed as a
-----------
representation or undertaking by the Certificate Insurer concerning
maintenance of the rating currently assigned to its claims-paying ability
by Moody's Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc. ("S&P"), Fitch
Investors Service, L.P. ("Fitch") or any other nationally recognized
statistical rating organization (collectively, the "Rating Agencies"). The
Rating Agencies, in assigning such rating, may take into account facts and
assumptions not described in the Prospectus, and the facts and assumptions
which are considered by the Rating Agencies are subject to change over
time. The Certificate Insurer has not attempted to disclose all facts and
assumptions which the Rating Agencies deem relevant in assigning a rating
within a particular rating category to the Certificate Insurer's claims-
paying ability. Notwithstanding the foregoing, the Certificate Insurer is
not aware of any facts that, if disclosed to Moody's, S&P or Fitch, would
be reasonably expected to result in a downgrade of the rating of the
claims-paying ability of the Certificate Insurer by any of such Rating
Agencies.
(i) No Litigation. There are no actions, suits, proceedings or
-------------
investigations pending, or to the best of the Certificate Insurer's
knowledge, threatened against it at law or in equity or before or by any
court, governmental agency, board or commission or any arbitrator which, if
decided adversely, would materially and adversely affect its condition
(financial or otherwise) or operations or would materially and adversely
affect its ability to perform its obligations under this Agreement or the
Policy.
(j) 1933 Act Registration. The Policy is exempt from registration
---------------------
under the Act.
4
<PAGE>
3. Agreements, Representations and Warranties of the Underwriters. The
--------------------------------------------------------------
Underwriters represent and warrant to and agree with the Bank and the
Certificate Insurer that the statements contained in the Prospectus under the
caption "Underwriting" (referred to herein as the "Underwriters Information")
are true and correct in all material respects.
4. Agreements, Representations and Warranties of the Bank. The Bank
------------------------------------------------------
represents and warrants to and agrees with the Certificate Insurer and the
Underwriters as follows:
(a) Registration Statement. The information in the Registration
----------------------
Statement, other than the Certificate Insurer Information and the
Underwriters Information, is true and correct in all material respects and
does not contain any untrue statement of a fact that is material or omit to
state a fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Organization. The Bank is a federally chartered stock savings
------------
bank duly organized and validly existing under the laws of the United
States of America, and has full corporate power, authority and legal right
to own its properties and conduct its business as presently conducted. The
Bank is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification.
(c) Corporate Power. The Bank has the corporate power and
---------------
authority to execute and deliver this Agreement, the Underwriting Agreement
and the Pooling and Servicing Agreement and to perform all of its
obligations hereunder and thereunder.
(d) Authorization; Approvals. The issuance and delivery of the
------------------------
Certificates and the execution, delivery and performance of this Agreement,
the Underwriting Agreement and the Pooling and Servicing Agreement by the
Bank have been duly authorized by all necessary corporate proceedings. No
further approvals or filings of any kind, including, without limitation,
any further approvals of or further filing with any governmental agency or
other governmental authority, or any further approval of the Bank's board
of directors or stockholders, are necessary for this Agreement, the
Underwriting Agreement and the Pooling and Servicing Agreement to
constitute the legal, valid and binding obligations of the Bank.
(e) No Conflicts. The issuance and delivery of the Certificates,
------------
the consummation of any other of the transactions contemplated herein or in
the Pooling and Servicing Agreement or the Underwriting Agreement, or the
fulfillment of the terms of this Agreement, the Underwriting Agreement or
the Pooling and Servicing Agreement, do not and will not conflict with or
violate any term or provision of the Charter or By-Laws of the Bank, any
statute, order or
5
<PAGE>
regulation applicable to the Bank of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Bank and do not and will not conflict with, result in a breach or violation
or the acceleration of or constitute a default under or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Bank pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Bank is a party or by which the Bank may be bound or to which any
of the property or assets of the Bank may be subject except for conflicts,
violations, breaches, accelerations and defaults which would not,
individually or in the aggregate, materially and adversely affect its
ability to perform its obligations under this Agreement, the Underwriting
Agreement or the Pooling and Servicing Agreement.
(f) Enforceability. This Agreement, the Pooling and Servicing
--------------
Agreement and the Underwriting Agreement have been duly authorized by the
Bank, and, when executed and delivered by the Bank and assuming the due
authorization, execution and delivery of the Pooling and Servicing
Agreement and the Underwriting Agreement by the other parties thereto, will
constitute valid and binding obligations of the Bank, enforceable against
the Bank in accordance with their respective terms, except to the extent
that (i) the enforceability thereof may be subject to insolvency,
reorganization, moratorium, receivership, conservatorship or similar laws,
regulations or procedures of general applicability now or hereafter in
effect relating to or affecting creditors' or obligees' rights generally or
the rights of creditors or obligees of federally chartered stock savings
banks, the deposits of which are insured by the FDIC, and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. When executed,
authenticated and delivered in accordance with the terms of the Pooling and
Servicing Agreement and paid for by the Underwriters pursuant to the
Underwriting Agreement, the Certificates will be duly and validly issued
and outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement.
(g) No Litigation. There are no actions, suits, proceedings or
-------------
investigations pending or, to the best of the Bank's knowledge, threatened
against it at law or in equity or before any court, governmental agency,
board or commission or any arbitrator which, if decided adversely, would
materially and adversely affect its condition (financial or otherwise) or
operations or would materially and adversely affect its ability to perform
its obligations under this Agreement, the Underwriting Agreement or the
Pooling and Servicing Agreement.
5. Indemnification.
---------------
6
<PAGE>
(a) The Certificate Insurer hereby agrees, upon the terms and
subject to the conditions of this Agreement, to indemnify, defend and hold
harmless each Bank Party and each Underwriter Party against any and all
Losses incurred by such Bank Party or Underwriter Party, as applicable,
with respect to the offer and sale of the Certificates and resulting from
the Certificate Insurer's breach of any of its representations and
warranties set forth in Section 2 of this Agreement.
(b) The Underwriters hereby agree, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless each
Insurer Party against any and all Losses incurred by such Insurer Party
which arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact in the Underwriters Information or (ii)
the omission or alleged omission to state in the Underwriters Information a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) The Bank hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless each
Insurer Party against any and all losses incurred by such Insurer Party
with respect to the offer and sale of the Certificates and resulting from
the Bank's breach of any of its representations and warranties set forth in
Section 4 of this Agreement.
(d) Upon the incurrence of any Losses entitling a party to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party promptly upon establishment by written notice from the
Indemnified Party to the Indemnifying Party of the Losses incurred.
6. Certificate Insurer Undertaking. The Certificate Insurer hereby
-------------------------------
agrees that, for so long as the Underwriters are required under the Act to
deliver a Prospectus in connection with the sale of the Certificates, the
Certificate Insurer will furnish to either the Representative or the Bank, or
both, upon written request of such party or parties and at the expense of the
requesting party, copies of the Certificate Insurer's most recent financial
statements (annual or interim, as the case may be) prepared in accordance with
generally accepted accounting principles (subject, as to interim statements, to
normal year-end adjustments and to the absence of footnotes) within a reasonable
time after they are available.
7. Notice to be Given to the Certificate Insurer. Except as provided
---------------------------------------------
below in Section 10 with respect to contribution, the indemnification provided
herein by the Certificate Insurer shall be the exclusive remedy of any
Underwriter Party or Bank Party for the Losses resulting from the Certificate
Insurer's breach of a representation, warranty or agreement hereunder; provided,
however, that any Underwriter Party or Bank Party shall be entitled to pursue
any other remedy at law or in equity for any such breach so long as the damages
sought to be recovered shall not exceed the Losses incurred thereby resulting
from such breach. In the event that any action or regulatory proceeding shall be
7
<PAGE>
commenced or claim asserted which may entitle an Underwriter Party or Bank Party
to be indemnified under this Agreement, such party shall give the Certificate
Insurer written notice of such action or claim reasonably promptly after receipt
of written notice thereof. The Certificate Insurer shall be entitled to
participate in the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Underwriter Party or the Bank
Party, as the case may be. The Indemnified Party will have the right to employ
its own counsel in any such action in addition to counsel for the Certificate
Insurer, but the fees and expenses of the Indemnified Party's own counsel will
be at the expense of such Indemnified Party unless (1) the employment of such
counsel by the Indemnified Party at the Certificate Insurer's expense has been
authorized in writing by the Certificate Insurer, or (2) the Certificate Insurer
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, or (3)
the named parties to any such action include the Certificate Insurer and the
Indemnified Party, and such Indemnified Party shall have been advised by counsel
in writing that there may be one or more legal defenses available to it which
are different from or additional to those available to the Certificate Insurer
(in which case, if such Indemnified Party notifies the Certificate Insurer in
writing that it elects to employ separate counsel at the expense of the
Certificate Insurer, the Certificate Insurer shall not have the right to assume
the defense of such action or proceeding on such Indemnified Party's behalf), in
each of which cases the reasonable fees and expenses of counsel (including local
counsel) will be at the expense of the Certificate Insurer and all such fees and
expenses will be reimbursed promptly as they are incurred (provided, that the
party seeking reimbursement must provide documentation of expenses). In no event
will the Certificate Insurer be liable for the fees and expenses of more than
one counsel for all Bank Parties and more than one counsel for all Underwriter
Parties in connection with any one action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. The Underwriter Parties and Bank Parties shall
cooperate with the Certificate Insurer in resolving any event which would give
rise to an indemnity obligation pursuant to Section 5(a) hereof in the most
efficient manner. No settlement of any such claim or action shall be entered
into without the consent of the Bank Party or Underwriter Party, as the case may
be, who is subject to such claim or action and the Certificate Insurer;
provided, however, that the consent of such Bank Party or such Underwriter
Party, as applicable, shall not be required if such settlement fully discharges,
with prejudice against the plaintiff, the claim or action against such Bank
Party or Underwriter Party. Any failure by a Bank Party or Underwriter Party, as
the case may be, to comply with the provisions of this Section shall relieve the
Certificate Insurer of liability only if such failure is materially prejudicial
to any legal pleadings, grounds, defenses or remedies in respect thereof or the
Certificate Insurer's liability hereunder and then only to the extent of such
prejudice.
8. Notice to be Given to the Representative. Except as provided below
----------------------------------------
in Section 10 with respect to contribution, the indemnification provided herein
by the Underwriters shall be the exclusive remedy of any Insurer Party for the
Losses resulting from matters specified in Section 5(b) hereof; provided,
however, that the Insurer Party
8
<PAGE>
shall be entitled to pursue any other remedy at law or in equity for any such
breach so long as the damages sought to be recovered shall not exceed the Losses
incurred thereby resulting from such breach. In the event that any action or
regulatory proceeding shall be commenced or claim asserted which may entitle an
Insurer Party to be indemnified under this Agreement, such party shall give the
Representative written notice of such action or claim reasonably promptly after
receipt of written notice thereof. The Underwriters shall be entitled to
participate in the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Insurer Party. The Indemnified
Party will have the right to employ its own counsel in any such action in
addition to counsel for the Underwriters, but the fees and expenses of the
Indemnified Party's counsel will be at the expense of such Indemnified Party
unless (1) the employment of counsel by the Indemnified Party at the
Underwriters' expense has been authorized in writing by the Representative, or
(2) the Underwriters have not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, or (3) the named parties to any such action include the
Underwriters and the Indemnified Party, and such Indemnified Party shall have
been advised by counsel in writing that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Underwriters (in which case, if such Indemnified Party notifies the Underwriters
in writing that it elects to employ separate counsel at the expense of the
Underwriters, the Underwriters shall not have the right to assume the defense of
such action or proceeding on such Indemnified Party's behalf), in each of which
cases the reasonable fees and expenses of counsel will be at the expense of the
Underwriters and all such fees and expenses will be reimbursed promptly as they
are incurred (provided, that the party seeking reimbursement must provide
documentation of expenses). In no event will the Underwriters be liable for the
fees and expenses of more than one counsel for all Insurer Parties in connection
with any one action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. The Insurer Party shall cooperate with the Underwriters in
resolving any event which would give rise to an indemnification obligation
pursuant to Section 5(b) hereof in the most efficient manner. No settlement of
any such claim or action shall be entered into without the consent of the
Insurer Party who is subject to such claim or action and the Underwriters;
provided, however, that the consent of such Insurer Party shall not be required
if such settlement fully discharges, with prejudice against the plaintiff, the
claim or action against such Insurer Party. Any failure by an Insurer Party to
comply with the provisions of this Section shall relieve the Underwriters of
liability only if such failure is materially prejudicial to any legal pleadings,
grounds, defenses or remedies in respect thereof or the Underwriters' liability
hereunder and then only to the extent of such prejudice.
9. Notice to be Given to the Bank. Except as provided below in Section
------------------------------
10 with respect to contribution, the indemnification provided herein by the Bank
shall be the exclusive remedy of any Insurer Party for the Losses resulting from
the Bank's breach of a representation, warranty or agreement hereunder;
provided, however, that the Insurer Party shall be entitled to pursue any other
remedy at law or in equity for any such breach
9
<PAGE>
so long as the damages sought to be recovered shall not exceed the Losses
incurred thereby resulting from such breach. In the event that any action or
regulatory proceeding shall be commenced or claim asserted which may entitle an
Insurer Party to be indemnified under this Agreement, such party shall give the
Bank written notice of such action or claim reasonably promptly after receipt of
written notice thereof. The Bank shall be entitled to participate in the defense
of any such action or claim in reasonable cooperation with, and with the
reasonable cooperation of, the Insurer Party. The Indemnified Party will have
the right to employ its own counsel in any such action in addition to counsel
for the Bank, but the fees and expenses of the Indemnified Party's counsel will
be at the expense of such Indemnified Party unless (1) the employment of counsel
(including local counsel) by the Indemnified Party at the Bank's expense has
been authorized in writing by the Bank, or (2) the Bank has not in fact employed
counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, or (3) the named parties to
any such action include the Bank and the Indemnified Party, and such Indemnified
Party shall have been advised by counsel in writing that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Bank (in which case, if such Indemnified Party notifies
the Bank in writing that it elects to employ separate counsel at the expense of
the Bank, the Bank shall not have the right to assume the defense of such action
or proceeding on such Indemnified Party's behalf), in each of which cases the
reasonable fees and expenses of counsel (including local counsel) will be at the
expense of the Bank and all such fees and expenses will be reimbursed promptly
as they are incurred (provided, that the party seeking reimbursement must
provide documentation of expenses). In no event will the Bank be liable for the
fees and expenses of more than one counsel for all Insurer Parties in connection
with any one action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. The Insurer Party shall cooperate with the Bank in resolving any
event which would give rise to an indemnification obligation pursuant to Section
5(c) hereof in the most efficient manner. No settlement of any such claim or
action shall be entered into without the consent of the Insurer Party, who is
subject to such claim or action and the Bank; provided, however, that the
consent of such Insurer Party shall not be required if such settlement fully
discharges, with prejudice against the plaintiff, the claim or action against
such Insurer Party. Any failure by an Insurer Party to comply with the
provisions of this Section shall relieve the Bank of liability only if such
failure is materially prejudicial to any legal pleadings, grounds, defenses or
remedies in respect thereof or the Bank's liability hereunder and then only to
the extent of such prejudice.
10. Contribution.
------------
(a) To provide for just and equitable contribution if the
indemnification provided by the Certificate Insurer is determined to be
unavailable for any Underwriter Party or Bank Party (other than pursuant to
Sections 5 or 7 of this Agreement), the Certificate Insurer shall
contribute to the aggregate costs of liabilities arising from any breach of
a representation or
10
<PAGE>
warranty set forth in this Agreement on the basis of the relative fault of
all Underwriter Parties, all Bank Parties and all Insurer Parties,
respectively.
(b) To provide for just and equitable contribution if the
indemnification provided by the Bank is determined to be unavailable for
any Insurer Party (other than pursuant to Sections 5 or 9 of this
Agreement), the Bank shall contribute to the aggregate costs of liabilities
arising from any breach of a representation or warranty set forth in this
Agreement on the basis of the relative fault of all Underwriter Parties,
all Bank Parties and all Insurer Parties, respectively.
(c) To provide for just and equitable contribution if the
indemnification provided by the Underwriters is determined to be
unavailable for any Insurer Party (other than pursuant to Sections 5 or 8
of this Agreement), the Underwriters shall contribute to the aggregate
costs of liabilities arising from (i) any untrue statement or alleged
untrue statement of a material fact in the Underwriters Information or (ii)
the omission or alleged omission to state in the Underwriters Information a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, on the basis of the relative fault of all Underwriter
Parties, all Bank Parties and all Insurer Parties, respectively; provided,
however, that the Underwriters shall not be liable for any amount in excess
of (i) the excess of the sales prices of the Certificates to the public
over the prices paid therefor by the Underwriters over (ii) the aggregate
amount of any damages which the Underwriters have been otherwise required
to pay in respect of the same or any substantially similar claim.
(d) The relative fault of each Indemnifying Party, on the one hand,
and of each Indemnified Party, on the other, shall be determined by
reference to, among other things, whether the breach of, or alleged breach
of, any of its representations and warranties set forth in Sections 2, 3 or
4 of this Agreement relates to information supplied by, or action within
the control of, the Indemnifying Party or the Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such breach.
(e) The parties agree that the Insurer shall be solely responsible
for the Insurer Information and for the Insurer Financial Statements, that
the Underwriters shall be solely responsible for the Underwriters
Information and that the Bank shall be responsible solely for all other
information in the Registration Statement and in the Prospectus.
11
<PAGE>
(f) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(g) The indemnity and contribution agreements contained in this
Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter Party, any
Bank Party or any Insurer Party, (ii) the issuance of the Certificates or
the Policy or (iii) any termination of this Agreement.
(h) Upon the occurrence of any Losses entitling a party to
contribution hereunder, the contributor shall reimburse the party entitled
to contribution promptly upon establishment by the party entitled to
contribution of the Losses incurred.
It is understood and agreed that the indemnities set forth in this
Agreement shall survive the execution and delivery of this Agreement and the
issuance, sale and delivery of the Certificates.
11. Notices. All notices and other communications provided for under
-------
this Agreement shall be addressed to the address set forth below as to each
party or at such other address as shall be designated by a party in a written
notice to the other parties.
If to the Insurer: MBIA Insurance Corporation
113 King Street
Armonk, New York 10504
Attn: General Counsel
If to Bank: Chevy Chase Bank, F.S.B.
8401 Connecticut Avenue
Chevy Chase, MD 20815
Attention: General Counsel
If to the Representative: Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
12. Governing Law. This Agreement shall be deemed to be a contract
-------------
under the laws of the State of New York and shall be governed by and construed
in accordance with the laws of the State of New York without regard to its
conflicts of laws provisions. This Agreement may not be assigned by any party
without the express written consent of each other party. Amendments of this
Agreement shall be in writing
12
<PAGE>
signed by each party. This Agreement shall not be effective until executed by
the Certificate Insurer, the Bank and the Underwriters.
13. Underwriting Agreement; Pooling and Servicing Agreement. This
-------------------------------------------------------
Agreement in no way limits or otherwise affects the indemnification obligations
of (a) the Bank or the Underwriters under the Underwriting Agreement or (b) the
Bank under the Pooling and Servicing Agreement.
14. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized, all as of the date first above written.
MBIA INSURANCE CORPORATION
By: /s/ Ann D. McKenna
------------------------
Ann D. McKenna
Assistant Secretary
CHEVY CHASE BANK, F.S.B.
By: /s/ Mark A. Holles
------------------------
Mark A. Holles
Vice President
CREDIT SUISSE FIRST BOSTON
CORPORATION, as Representative
By: /s/ Nita Sue Cherry
------------------------
Nita Sue Cherry
Director
13
