Exhibit 4.2
FIRST AMENDMENT dated as of August 6, 1992 (the
"Amendment") to the Pooling and Servicing Agreement
dated as of May 31, 1991, as assigned by Chrysler
Auto Receivables Company to U. S. Auto Receivables
Company ("USA") on August 8, 1991, among USA, as
seller (the "Seller"), Chrysler Credit Corporation,
as servicer (the "Servicer") and Manufacturers and
Traders Trust Company, as trustee (the "Trustee").
WHEREAS the Seller, the Servicer and the Trustee have entered into
the Pooling and Servicing Agreement.
WHEREAS the Seller and the Servicer wish to amend Section 3.09 of the
Pooling and Servicing Agreement to clarify certain matters with respect to the
allocation among the then outstanding Series of any Adjustment Payment or
portion thereof not paid by the Seller.
WHEREAS the Seller and the Servicer wish to amend Section 4.03 of the
Pooling and Servicing Agreement to clarify certain matters with respect to the
allocation of Collections for any Collection Period (based on the various
Series Allocation Percentages) of Non-Principal Receivables and Principal
Receivables, Defaulted Receivables and Miscellaneous Payments with respect to
(a) newly issued Series and (b) any series for which on the last day of any
Collection Period amounts are on deposit with respect to the immediately
preceding Collection Period, which amounts are sufficient to pay in full all
amounts payable on or with respect to such Series on the Distribution Date
related to such immediately preceding Collection Period.
WHEREAS the Seller and the Servicer wish to amend Section 6.03 to
provide for an additional condition to the issuance of any new Series which is
to be allocated Collections for the Collection Period in which it is issued.
WHEREAS the Seller and the Servicer wish to effect an amendment in
accordance with Section 13.01(a) of the Pooling and Servicing Agreement.
WHEREAS the Seller and the Servicer have directed the Trustee to
execute the Amendment and have caused the Opinion of Counsel required by
Section 13.01(a) of the Pooling and Servicing Agreement to be delivered to the
Trustee.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, the parties hereby agree as follows:
1. Definitions. For purposes of the Amendment, capitalized terms
used herein but not otherwise defined herein shall have the meanings as set
forth in the Pooling and Servicing Agreement.
2. Amendment and Restatement of Section 3.09. Section 3.09 is hereby
amended and restated to read as follows:
"SECTION 3.09. Adjustments. (a) If the Servicer adjusts downward the
amount of any Principal Receivable because of a rebate, refund, credit
adjustment or billing error to a Dealer, or because such Receivable was
created in respect of a Vehicle which was refused or returned by a Dealer,
then, in any such case, the Seller's Participation Amount will be
automatically reduced by the amount of the adjustment subject to the last
sentence of this Section. Furthermore, if following such a reduction the
Seller's Participation Amount would be less than the Trust Available
Subordinated Amount on the immediately preceding Determination Date (after
giving effect to the allocations, distributions, withdrawals and deposits to
be made on the Distribution Date following such Determination Date), then the
Seller shall be required to pay an amount equal to such deficiency (up to the
amount of such adjustment) into the Collection Account on the Business Day on
which such adjustment or reduction occurs (each such payment an "Adjustment
Payment"). If the Seller shall fail to make any deposit to the Collection
Account with respect to such Adjustment Payment or portion thereof by the
Determination Date relating to the Collection Period with respect to which
such Adjustment Payment is payable, the amount of such Adjustment Payment or
portion thereof shall be allocated on such related Determination Date pro rata
among the then outstanding Series based on their respective Series Allocation
Percentages for the Collection Period with respect to which such deposit
should have been made.
"(b) If (i) the Servicer makes a deposit into the Collection Account
in respect of a Collection of a Receivable and such collection was received by
the Servicer in the form of a check which is not honored for any reason or
(ii) the Servicer makes a mistake with respect to the amount of any Collection
and deposits an amount that is less than or more than the actual amount of
such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid."
3. Amendment and Restatement of Section 4.03. Section 4.03 is hereby
amended and restated to read as follows:
"SECTION 4.03. Allocations and Applications of Collections and Other
Fund's, (a) Except as otherwise provided in Section 4.03(b), the Servicer
shall deposit Collections into the Collection Account as promptly as possible
after the Date of Processing of such Collections, but in no event later than
the second Business Day after such Date of Processing."
"(b) Notwithstanding anything in this Agreement to the contrary, for
so long as (i) CCC remains the Servicer hereunder, (ii) no Service Default has
occurred and is continuing and (iii) (x) CCC is a wholly owned subsidiary of
CFC and CFC maintains a short-term rating of at least A-1 by Standard & Poor's
and P-1 by Moody's (and for five Business Days following any reduction of
either such rating), (y) CCC arranges for and maintains a letter of credit or
other form of Enhancement in respect of the Servicer's obligations to make
deposits of collections on the Receivables in the Collection Account that is
acceptable in form and substance to each Rating Agency and any Agents or (z)
CCC otherwise obtains the Rating Agency confirmations described below, then,
subject to any limitations in the confirmations described below, the Servicer
need not make the daily deposits of Collections into the Collection Account as
provided in Section 4.02, but may make a single deposit into the Collection
Account in same-day or next-day funds not later than 12:00 noon, New York City
time, on the Business Day immediately preceding the Distribution Date in a net
amount equal to the amount which would have been on deposit with respect to
the immediately preceding Collection Period in the Collection Account;
provided, however, that prior to ceasing daily deposits as described above the
Seller shall have delivered to the Trustee written confirmation from each of
the Rating Agencies that the failure by CCC to make daily deposits will not
result in a reduction or withdrawal of the rating of any outstanding Series or
Class.
"(c) Subject to Section 4.04, but notwithstanding anything else in
this Agreement to the contrary, with respect to any Collection Period, whether
the Servicer is required to make deposits of Collections pursuant to paragraph
(a) or (b) above, (i) the Servicer will only be required to deposit
Collections into the Collection Account up to the aggregate amount of
Collections required to be deposited into any Series Account or, without
duplication, distributed on the related Distribution Date to Investor
Certificateholders, to any Agent or to any Enhancement Provider pursuant to
the terms of any Supplement or Enhancement Agreement and (ii) if at any time
prior to such Distribution Date the amount of Collections deposited in the
Collection Account exceeds the amount required to be deposited pursuant to
clause (i) above, the Servicer will be permitted to withdraw the excess from
the Collection Account.
"(d) Subject to and in accordance with Section 4.03(e), collections
of Non-Principal Receivables and Principal Receivables, Defaulted Receivables
and Miscellaneous Payments will be allocated to each Series from and after the
related Series Cut-Off Date on the basis of such Series' Series Allocable
Non-Principal Collections, Series Allocable Principal Collections, Series
Allocable Defaulted Amount and Series Allocable Miscellaneous Payments and
amounts so allocated to any Series will not, except as specified in the
related Supplement, be available to the Investor Certificateholders of any
other Series. Allocations thereof between the Certificateholders' Interest and
the Seller's Interest, among the Series in any group and among the Classes in
any Series shall be set forth in the related Supplement or Supplements.
"(e) For purposes of determining each Series' Series Allocation
Percentage in connection with the allocation of Non-Principal Receivables and
Principal Receivables, Defaulted Receivables and Miscellaneous Payments for
the specified Collection Period:
"(i) unless the related Supplement shall provide otherwise,
each Series upon issuance, shall be deemed to have been created and
in existence as of the first day of the Collection Period in which
the related Series Cut-Off Date falls and, as a result, shall be
allocated (based on its Series Allocation Percentage) its allocable
portion of Non-Principal Receivables and Principal Receivables,
Defaulted Receivables and Miscellaneous Payments for such Collection
Period; and
"(ii) unless the related Supplement shall provide otherwise,
with respect to any Series, if (x) as of the last day of any
Collection Period the amounts on deposit in the Collection Account
and the related Series Accounts with respect to such Collection
Period are sufficient to pay in full all amounts payable by the
Trust on or with respect to such Series' Certificates on the
Distribution Date relating to such Collection Period (after giving
effect to the allocations, distributions, withdrawals and deposits
to be made on such related Distribution Date) then (y) such Series
shall be deemed to have been paid in full on such last day and, as a
result, shall not be allocated any portion of Non-Principal
Receivables and Principal Receivables, Defaulted Receivables and
Miscellaneous Payments for any subsequent Collection Period. For
purposes of making the determination in clause (x) above, on the
date of any such determination it shall be assumed that any
theretofore unpaid Adjustment Payments with respect to the
immediately preceding Collection Period shall be allocated to such
Series on the related Determination Date and shall be payable from
amounts allocated to or available with respect to such Series on the
related Distribution Date."'
4. Amendment and Restatement of Section 6.03. Section 6.03 is hereby
amended and restated to read as follows:
"SECTION 6.03. New Issuances. (a) The Seller may from time to time
direct the Trustee, on behalf of the Trust, to issue one or more new Series of
Investor certificates. The Investor Certificates of all outstanding Series
shall be equally and ratably entitled as provided herein to the benefits of
this Agreement without preference, priority or distinction, all in accordance
with the terms and provisions of this Agreement and the applicable Supplement
except, with respect to any Series or Class, as provided in the related
Supplement.
"(b) On or before the series Issuance Date relating to any new
Series, the parties hereto will execute and deliver a Supplement which will
specify the Principal Terms of such new Series. The terms of such Supplement
may modify or amend the terms of this Agreement solely as applied to such new
Series. The obligation of the Trustee to issue the Investor Certificates of
such new Series and to execute and deliver the related Supplement is subject
to the satisfaction of the following conditions:
"(i) on or before the fifth Business Day immediately preceding the
Series Issuance Date, the Seller shall have given the Trustee, the
Servicer, each Rating Agency, any Agent and any Enhancement Provider
notice of such issuance and the Series Issuance Date;
"(ii) the Seller shall have delivered to the Trustee the related
Supplement, in form satisfactory to the Trustee, executed by each
party hereto other than the Trustee;
"(iii) the Seller shall have delivered to the Trustee any related
Enhancement Agreement executed by each of the parties thereto, other
than the Trustee;
"(iv) the Rating Agency Condition shall have been satisfied with
respect to such issuance;
"(v) such issuance will not result in the occurrence of an Early
Amortization Event and the Seller shall have delivered to the
Trustee, any Agent and any Enhancement Provider a certificate of a
Vice President or more senior officer, dated the Series Issuance
Date, to the effect that the Seller reasonably believes that such
issuance will not result in the occurrence of an Early Amortization
Event and is not reasonably expected to result in the occurrence of
an Early Amortization Event at any time in the future;
"(vi) the Seller shall have delivered to the Trustee and any
Enhancement Provider a Tax Opinion, dated the Series Issuance Date,
with respect to such issuance;
"(vii) the result obtained by multiplying (x) the Seller's
Participation Amount by (y) the percentage equivalent of the portion
of the Seller's Interest represented by the CARCO Certificate, shall
not be less than 2% of the Pool Balance, in each case as of the
Series Issuance Date, and after giving effect to such issuance; and
"(viii) if such Series pursuant to Section 4.03(e)(i) is to be
allocated Collections with respect to the Collection Period in which
the Series Cut-Off Date falls, the Pool Balance on the first day of
such Collection Period (after giving effect to any Accounts added to
the Trust on or prior to the Series Issuance Date) shall equal or
exceed the Required Participation Amount on the first day of such
Collection Period (after giving effect to each Series (including
such Series) theretofore issued which are to be allocated
Collections with respect to such Collection Period) and the Seller
shall have delivered to the Trustee, any Agent and any Enhancement
Provider a certificate of a Vice President or more senior officer,
dated the Series Issuance Date, to such effect.
"Upon satisfaction of the above conditions, the Trustee shall execute the
Supplement and issue to the Seller the Investor Certificates of such Series
for execution and redelivery to the Trustee for authentication.
"(c) The Seller may surrender the CARCO Certificate to the Trustee in
exchange for a newly issued CARCO Certificate and a second certificate (a
"Supplemental Certificate"), the terms of which shall be defined in a
supplement to this Agreement (which supplement shall be subject to Section
13.01 to the extent that it amends any of the terms of this Agreement), to be
delivered to or upon the order of the Seller (or the holder of a Supplemental
Certificate, in the case of the transfer or exchange thereof, as provided
below), upon satisfaction of the following conditions:
"(i) the result obtained by multiplying (x) the Seller's
Participation Amount by (y) the percentage equivalent of the portion
of the Seller's Interest represented by the CARCO Certificate, shall
not be less than 2% of the Pool Balance, in each case as of the date
of, and after giving effect to, such exchange;
"(ii) the Rating Agency condition shall have been satisfied
with respect such exchange (or transfer or exchange as provided
below): and
"(iii) the Seller shall have delivered to the Trustee, any
Agent and any Enhancement Provider a Tax opinion, dated the date of
such exchange (or transfer or exchange as provided below), with
respect thereto.
"The CARCO Certificate will at all times be beneficially owned
by the Seller. Any Supplemental Certificate may be transferred or
exchanged only upon satisfaction of the conditions set forth in
clauses (ii) and (iii) above."
5. Continuation of the Pooling and Servicing Agreement. The Pooling
and Servicing Agreement, as amended hereby, shall continue in full force and
effect.
6. Counterparts. This Amendment may be executed in counterparts, and
all such counterparts taken together shall be deemed to constitute one and the
same agreement.
7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
by their respective officers or agents thereunto authorized, as of the date
first written above.
U. S. AUTO RECEIVABLES COMPANY,
Seller,
By
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CHRYSLER CREDIT CORPORATION,
Servicer
By
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MANUFACTURERS AND TRADERS TRUST
COMPANY, Trustee
By
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