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Exhibit 4.2
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▇▇▇▇▇▇ BROTHERS ASSET SECURITIZATION LLC
Seller,
[____________________________________]
Servicer
and
[____________________________________]
Trustee
on behalf of the Holders
________________________________________________________
FORM OF POOLING AND SERVICING AGREEMENT
________________________________________________________
Dated as of ________ __, 200[_]
[______________________] TRUST 200[_]
____% Asset Backed Certificates, Class A
____% Asset Backed Certificates, Class B
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS.................................................................................... 1
Section 1.1. Definitions.......................................................... 1
Section 1.2. Other Interpretative Provisions...................................... 19
Section 1.3. Calculations......................................................... 20
Section 1.4. References........................................................... 20
Section 1.5. Action by or Consent of Holders...................................... 20
ARTICLE II. THE TRUST PROPERTY............................................................................. 20
Section 2.1. Conveyance of Trust Property......................................... 20
Section 2.2. Representations and Warranties as to Each
Receivable........................................................... 20
Section 2.3. Representations and Warranties as to the
Receivables in the Aggregate......................................... 24
Section 2.4. Repurchase upon Breach............................................... 24
Section 2.5. Custodian of Receivable Files........................................ 25
ARTICLE III. ADMINISTRATION AND SERVICING OF TRUST PROPERTY................................................. 28
Section 3.1. Duties of Servicer................................................... 28
Section 3.2. Collection of Receivable Payments.................................... 29
Section 3.3. Realization upon Receivables......................................... 30
Section 3.4. Physical Damage Insurance............................................ 30
Section 3.5. Maintenance of Security Interests in Financed
Vehicles............................................................. 31
Section 3.6. Covenants of Servicer................................................ 31
Section 3.7. Purchase by Servicer upon Breach..................................... 32
Section 3.8. Servicing Compensation............................................... 32
Section 3.9. Servicer's Report.................................................... 33
Section 3.10. Annual Statement as to Compliance.................................... 33
Section 3.11. Annual Independent Certified Public Accountants'
Report............................................................... 34
Section 3.12. Access to Certain Documentation and Information
Regarding Receivables................................................ 34
Section 3.13. Reports to the Commission............................................ 34
Section 3.14. Reports to the Rating Agency......................................... 34
Section 3.15. Servicer Expenses.................................................... 34
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ARTICLE IV. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO HOLDERS.......................................... 35
Section 4.1. Establishment of Accounts............................................ 35
Section 4.2. Collections.......................................................... 36
Section 4.3. [Reserved]........................................................... 37
Section 4.4. Additional Deposits; Net Deposits.................................... 37
Section 4.5. Distributions........................................................ 38
Section 4.6. Reserve Account...................................................... 40
Section 4.7. Statements to Holders................................................ 42
ARTICLE V. THE CERTIFICATES............................................................................... 43
Section 5.1. The Certificates..................................................... 43
Section 5.2. Authentication of Certificates....................................... 44
Section 5.3. Registration of Transfer and Exchange of Certificates................ 44
Section 5.4. Mutilated, Destroyed, Lost or Stolen Certificates.................... 45
Section 5.5. Persons Deemed Owners................................................ 45
Section 5.6. Access to List of Holders' Names and Addresses....................... 45
Section 5.7. Maintenance of Office or Agency...................................... 45
Section 5.8. Book Entry Certificates.............................................. 45
Section 5.9. Notices to Clearing Agency........................................... 47
Section 5.10. Definitive Certificates.............................................. 47
ARTICLE VI. SELLER......................................................................................... 47
Section 6.1. Representations and Warranties of Seller............................. 47
Section 6.2. [RESERVED]........................................................... 49
Section 6.3. Merger or Consolidation of Seller; Assumption of the
Obligations of Seller................................................ 49
Section 6.4. Limitation on Liability of Seller and Others......................... 49
Section 6.5. [RESERVED]........................................................... 50
ARTICLE VII. SERVICER.............................................................................. 50
Section 7.1. Representations and Warranties of Servicer........................... 50
Section 7.2. Indemnities of Servicer.............................................. 51
Section 7.3. Merger or Consolidation of Servicer; Assumption of the
Obligations of Servicer.............................................. 52
Section 7.4. Limitation on Liability of Servicer and Others....................... 53
Section 7.5. [______] Not To Resign as Servicer................................... 53
Section 7.6. Servicer May Own Certificates........................................ 54
Section 7.7. Existence............................................................ 54
ARTICLE VIII SERVICING TERMINATION.................................................................. . 54
Section 8.1. Servicer Termination Events.......................................... 54
Section 8.2. Trustee to Act; Appointment of Successor Servicer.................... 56
Section 8.3. Effect of Servicing Transfer......................................... 57
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Section 8.4. Notification to Holders.............................................. 58
Section 8.5. Waiver of Past Servicer Termination Events........................... 58
Section 8.6. Transfer of Accounts................................................. 58
ARTICLE IX. TRUSTEE........................................................................................ 58
Section 9.1. Acceptance by Trustee................................................ 58
Section 9.2. Duties of Trustee.................................................... 58
Section 9.3. Trustee's Certificate................................................ 60
Section 9.4. Trustee's Assignment of Purchased Receivables........................ 60
Section 9.5. Certain Matters Affecting Trustee.................................... 60
Section 9.6. Trustee Not Liable for Certificates or Receivables................... 62
Section 9.7. Trustee May Own Certificates......................................... 64
Section 9.8. Trustee's Fees and Expenses.......................................... 64
Section 9.9. Eligibility Requirements for Trustee................................. 64
Section 9.10. Resignation or Removal of Trustee.................................... 64
Section 9.11. Successor Trustee.................................................... 65
Section 9.12. Merger or Consolidation of Trustee; Assumption of
Obligations of Trustee............................................... 66
Section 9.13. Appointment of Co-Trustee or Separate Trustee........................ 66
Section 9.14. Representations and Warranties of Trustee............................ 67
Section 9.15. Reports by Trustee................................................... 68
Section 9.16. Tax Returns.......................................................... 69
Section 9.17. Trustee May Enforce Claims Without Possession of
Certificates......................................................... 69
ARTICLE X. TERMINATION.................................................................................... 69
Section 10.1. Termination of the Trust............................................. 69
Section 10.2. Optional Purchase of All Receivables................................. 70
ARTICLE XI. MISCELLANEOUS PROVISIONS....................................................................... 70
Section 11.1. Amendment............................................................ 70
Section 11.2. Protection of Title to Trust Property................................ 72
Section 11.3. Limitation on Rights of Holders...................................... 74
Section 11.4. Governing Law........................................................ 75
Section 11.5. Notices.............................................................. 75
Section 11.6. Severability of Provisions........................................... 75
Section 11.7. Assignment........................................................... 75
Section 11.8. Certificates Nonassessable and Fully Paid............................ 76
Section 11.9. Intention of Parties................................................. 76
Section 11.10. Counterparts......................................................... 76
Section 11.11. Further Assurances................................................... 76
Section 11.12. No Waiver; Cumulative Remedies....................................... 76
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SCHEDULE
SCHEDULE A LOCATION OF RECEIVABLE FILES
SCHEDULE B SCHEDULE OF RECEIVABLES
EXHIBITS
EXHIBIT A FORM OF Class A CERTIFICATE
EXHIBIT B FORM OF Class B CERTIFICATE
EXHIBIT C FORM OF SERVICER'S REPORT
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POOLING AND SERVICING AGREEMENT dated as of ____________,
200[_], between ▇▇▇▇▇▇ BROTHERS ASSET SECURITIZATION LLC, a Delaware limited
liability company, as Seller, [_________________________________], a [________],
as Servicer, and __________, a ______________________ corporation, as Trustee
hereunder.
In consideration of the premises and of the mutual agreements
herein contained, and other good and valuable consideration, the receipt of
which is acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
ARTICLE I. DEFINITIONS.
Section 1.1. Definitions. Whenever used in this Agreement, the
following capitalized words and phrases, unless the context otherwise requires,
have the following meanings:
"Accounts" means collectively the Collection Account, the
Class A Distribution Account, the Class B Distribution Account and the Payahead
Account.
"Account Property" means all amounts and investments held from
time to time in any Account or the Reserve Account, as the case may be (whether
in the form of deposit accounts, instruments, certificated securities, book
entry securities, uncertificated securities or otherwise), and all proceeds of
the foregoing.
"Actuarial Receivable" means a Receivable that provides for
(i) amortization of the loan over a series of fixed level payment monthly
installments and (ii) each monthly installment, including the monthly
installment representing the final payment on the Receivable, to consist of an
amount of interest equal to 1/12 of the Contract Rate of the loan multiplied by
the unpaid principal balance of the loan, and an amount of principal equal to
the remainder of the monthly installment.
"Acquired Receivable" means a Receivable acquired by a the
Transferor through a bulk purchase of Receivables or the acquisition of a
financial institution that owned the Receivable.
"Additional Servicing" means, for each Distribution Date, an
amount equal to the lesser of (i) the amount by which (A) the aggregate amount
of the Servicing Fee for such Distribution Date and all prior Distribution Dates
exceeds (B) the aggregate amount of Additional Servicing paid to the Servicer on
all prior Distribution Dates and (ii) the amount, if any, by which (A) the sum
of Available Interest and Available Principal for such Distribution Date exceed
(B) the sum, without duplication of (x) the Servicing Fee paid on such
Distribution Date with respect to the related Collection Period and any accrued
and unpaid Servicing Fee for prior Collection Periods, (y) all amounts required
to be distributed to the Holders on such
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Distribution Date and (z) the amount, if any, deposited in the Reserve Account
on such Distribution Date.
"Administration Agreement" means the Administration Agreement
dated as of _______, 200[ ] by and between the Trust, the Administrator,
[___________], and the Indenture Trustee as amended, restated and otherwise
modified from time to time.
"Administrator" means [ ] in its capacity as administrator of
the Trust under the Administration Agreement.
"Affiliate" means, with respect to any specified Person, any
other Person controlling, controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. A Person shall not be
deemed to be an Affiliate of any specified Person solely because such other
Person has the contractual right or obligation to manage such specified Person
or act as servicer with respect to the financial assets of such specified Person
unless such other Person controls the specified Person through equity ownership
or otherwise.
"Agreement" means this Pooling and Servicing Agreement,
including its schedules and exhibits, as amended, modified or supplemented from
time to time.
"Authorized Officer" means any officer within the Corporate
Trust Office of Trustee, including any vice president, assistant vice president,
secretary, assistant secretary or any other officer of Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Available Interest" means, for any Distribution Date, the sum
of the following amounts for the related Collection Period: (a) that portion of
the Collections on the Receivables received during the such Collection Period
that is allocable to interest in accordance with Servicer's customary servicing
procedures, (b) all Liquidation Proceeds received during the related Collection
Period and (c) the Purchase Amounts, to the extent allocable to accrued
interest, of all Receivables that are purchased by Servicer as of the last day
of the related Collection Period. "Available Interest" for any Distribution Date
shall exclude all payments and proceeds of any Receivables the Purchase Amount
of which has been distributed on a prior Distribution Date.
"Available Principal" means, for any Distribution Date the sum
of the following amounts with respect to the related Collection Period: (a) that
portion of all Collections on the
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Receivables received during such Collection Period that is allocable to
principal in accordance with Servicer's customary servicing procedures; and (b)
the Purchase Amounts, to the extent attributable to principal, of all
Receivables purchased by Servicer as of the last day of the related Collection
Period. "Available Principal" on any Distribution Date shall exclude all
payments and proceeds of any Receivables the Purchase Amount of which has been
distributed on a prior Distribution Date.
"Available Reserve Amount" is defined in Section 4.6.
"Book Entry Certificate" means beneficial interests in the
definitive Certificates described in Section 5.8, the ownership of which shall
be evidenced, and transfers of which shall be made, through book entries by a
Clearing Agency as described in Section 5.8.
"Business Day" means a day that is not a Saturday or a Sunday
and that in the State of New York and the State in which the Corporate Trust
Office is located is neither a legal holiday nor a day on which banking
institutions are authorized by law, regulation or executive order to be closed.
"Certificate" means any Class A Certificate or Class B
Certificate.
"Certificate Owner" means, with respect to a Book Entry
Certificate, the Person who is the owner of such Book Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules, regulations and procedures of such
Clearing Agency).
"Certificate Register" means the register maintained by
Trustee for the registration of Certificates and of transfers and exchanges of
Certificates as provided in Section 5.3.
"Class A Certificate" means a certificate executed by Trustee
on behalf of the Trust and authenticated by Trustee substantially in the form of
Exhibit A.
"Class A Certificate Balance" means, at any time, the original
Class A Certificate Balance, as reduced by all amounts allocable to principal on
the Class A Certificates distributed to Class A Holders prior to such time.
"Class A Certificate Rate" means ____% per annum, calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Class A Distribution Account" means the account established,
maintained and designated as the "Class A Distribution Account" pursuant to
Section 4.1.
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"Class A Holder" means the Person in whose name a Class A
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent, request or waiver pursuant to this Agreement,
the interest evidenced by any Class A Certificate registered in the name of the
Transferor, Servicer, or any Person actually known to an Authorized Officer of
Trustee to be an Affiliate, the Transferor, or Servicer, shall not be taken into
account in determining whether the requisite percentage necessary to effect any
such consent, request or waiver shall have been obtained.
"Class A Interest Carryover Shortfall" means (a) with respect
to the initial Distribution Date, zero, and (b) with respect to any other
Distribution Date, the excess of Class A Monthly Interest for the preceding
Distribution Date and any outstanding Class A Interest Carryover Shortfall on
such preceding Distribution Date, over the amount in respect of interest that is
actually deposited in the Class A Distribution Account on such preceding
Distribution Date, plus 30 days of interest on such excess, to the extent
permitted by law, in an amount equal to the product of one-twelfth multiplied by
the Class A Certificate Rate multiplied by the amount of such excess.
"Class A Interest Distributable Amount" means, with respect to
any Distribution Date, the sum of (a) the Class A Monthly Interest for such
Distribution Date and (b) the Class A Interest Carryover Shortfall for such
Distribution Date.
"Class A Monthly Interest" means, for any Distribution Date,
an amount equal to one-twelfth (or the actual number of days from and including
the Closing Date to but excluding _____________, 200_ divided by 360, for the
initial Distribution Date) of the Class A Certificate Rate multiplied by the
Class A Certificate Balance as of the close of business on the immediately
preceding Distribution Date, after giving effect to all payments of principal to
the Class A Certificates on or prior to such Distribution Date (or, in the case
of the first Distribution Date, the Original Class A Certificate Balance).
"Class A Monthly Principal" means, with respect to any
Distribution Date, the Class A Percentage of Available Principal for such
Distribution Date plus the Class A Percentage of Realized Losses with respect to
the related Collection Period.
"Class A Percentage" means _____%.
"Class A Pool Factor" means, with respect to any Distribution
Date, the Class A Certificate Balance as of the close of business on such
Distribution Date (after giving effect to any payments to be made on such
Distribution Date) divided by the Original Class A Certificate Balance,
expressed as a seven-digit decimal.
"Class A Principal Carryover Shortfall" means, as of the close
of business on any Distribution Date, the excess of Class A Monthly Principal
for such Distribution Date and any outstanding Class A Principal Carryover
Shortfall from the preceding Distribution Date over the
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amount in respect of principal that is actually deposited in the Class A
Distribution Account on such Distribution Date.
"Class A Principal Distributable Amount" means, with respect
to any Distribution Date, the sum of Class A Monthly Principal for such
Distribution Date and, in the case of any Distribution Date other than the
initial Distribution Date, the Class A Principal Carryover Shortfall as of the
close of business on the preceding Distribution Date; provided that the Class A
Principal Distributable Amount shall not exceed the Class A Certificate Balance
prior to such Distribution Date. In addition, on the Final Scheduled
Distribution Date, the Class A Principal Distributable Amount shall include, to
the extent not included under the preceding sentence, the amount that is
necessary (after giving effect to the other amounts to be deposited in the Class
A Distribution Account on such Distribution Date and allocable to principal) to
reduce the Class A Certificate Balance to zero.
"Class B Certificate" means a certificate executed by Trustee
on behalf of the Trust and authenticated by Trustee substantially in the form of
Exhibit B.
"Class B Certificate Balance" means, at any time, the Original
Class B Certificate Balance, as reduced by all amounts allocable to principal on
the Class B Certificates distributed to Class B Holders prior to such time.
"Class B Certificate Owner" means, with respect to a Book
Entry Certificate representing a beneficial interest in the Class B
Certificates, the Person who is the owner of such Book Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant in accordance with the rules, regulations and procedures of such
Clearing Agency).
"Class B Certificate Rate" means ____% per annum, calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Class B Distribution Account" means the account established,
maintained and designated as the "Class B Distribution Account" pursuant to
Section 4.1.
"Class B Holder" means the Person in whose name a Class B
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent, request or waiver pursuant to this Agreement,
the interest evidenced by any Class B Certificate registered in the name of the
Transferor, Servicer, or any Person actually known to an Authorized Officer of
Trustee to be an Affiliate of the Transferor or Servicer, shall not be taken
into account in determining whether the requisite percentage necessary to effect
any such consent, request or waiver shall have been obtained.
"Class B Interest Carryover Shortfall" means, (a) with respect
to the initial Distribution Date, zero, and (b) with respect to any other
Distribution Date, the excess of Class B
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Monthly Interest for the preceding Distribution Date and any outstanding Class B
Interest Carryover Shortfall on such preceding Distribution Date, over the
amount in respect of interest that is actually deposited in the Class B
Distribution Account on such preceding Distribution Date, plus 30 days of
interest on such excess, to the extent permitted by law, in an amount equal to
the product of one-twelfth multiplied by the Class B Certificate Rate multiplied
by the amount of such excess.
"Class B Interest Distributable Amount" means, with respect to
any Distribution Date, the sum of (a) the Class B Monthly Interest for such
Distribution Date and (b) the Class B Interest Carryover Shortfall for such
Distribution Date.
"Class B Monthly Interest" means, for any Distribution Date,
an amount equal to one-twelfth (or the actual number of days from and including
the Closing Date to but excluding __________, 200_ divided by 360, for the
initial Distribution Date) of the Class B Certificate Rate multiplied by the
Class B Certificate Balance as of the close of business on the immediately
preceding Distribution Date, after giving effect to all payments of principal to
the Class B Certificates on or prior to such Distribution Date (or, in the case
of the first Distribution Date, the Certificate Balance on the Closing Date).
"Class B Monthly Principal" means, with respect to any
Distribution Date, the Class B Percentage of Available Principal for such
Distribution Date plus the Class B Percentage of Realized Losses with respect to
the related Collection Period.
"Class B Percentage" means __%.
"Class B Pool Factor" means, with respect to any Distribution
Date, the Class B Certificate Balance as of the close of business on such
Distribution Date (after giving effect to any payments to be made on such
Distribution Date) divided by the Original Class B Certificate Balance,
expressed as a seven-digit decimal.
"Class B Principal Carryover Shortfall" means, as of the close
of business on any Distribution Date, the excess of Class B Monthly Principal
for such Distribution Date and any outstanding Class B Principal Carryover
Shortfall from the preceding Distribution Date over the amount in respect of
principal that is actually deposited in the Class B Distribution Account on such
Distribution Date.
"Class B Principal Distributable Amount" means, with respect
to any Distribution Date, the sum of Class B Monthly Principal for such
Distribution Date and, in the case of any Distribution Date other than the
initial Distribution Date, the Class B Principal Carryover Shortfall as of the
close of business on the preceding Distribution Date; provided that the Class B
Principal Distributable Amount shall not exceed the Class B Certificate Balance
prior to such Distribution Date. In addition, on the Final Scheduled
Distribution Date, the Class B Principal Distributable Amount shall include, to
the extent not included under the preceding sentence, the
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amount that is necessary (after giving effect to the other amounts to be
deposited in the Class B Distribution Account on such Distribution Date and
allocable to principal) to reduce the Class B Certificate Balance to zero.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act, as amended.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers of securities deposited with the
Clearing Agency.
"Closing Date" means the date of the initial issuance of the
Certificates hereunder.
"Code" means the Internal Revenue Code of 1986, as amended,
and the Treasury Regulations promulgated thereunder.
"Collection Account" means the segregated account or accounts
established, maintained and designated as the "Collection Account" pursuant to
Section 4.1.
"Collection Period" means, (a) in the case of the initial
Collection Period, the period from [but not including] the Cutoff Date to and
including ___________ __, 200[_] and (b) thereafter, each calendar month during
the term of this Pooling and Servicing Agreement. With respect to any
Determination Date, Deposit Date or Distribution Date, the "related Collection
Period" means the Collection Period preceding the month in which such
Determination Date, Deposit Date or Distribution Date occurs.
"Collections" means all collections on the Receivables and any
proceeds from Insurance Policies and lender's single interest insurance
policies.
"Commission" means the Securities and Exchange Commission.
"Contract Rate" means, with respect to a Receivable, the rate
per annum of interest charged on the outstanding principal balance of such
Receivable.
"Corporate Trust Office" means the principal office of Trustee
at which at any particular time its corporate trust business shall be
administered, which office at date of execution of this Agreement is located at
____________, Attention: ______________, Telephone: _______________, Facsimile:
________________ or at such other address as Trustee may designate from time to
time by notice to the Holders, the Transferor, Seller and Servicer, or the
principal corporate trust office of any successor Trustee (the address of which
the successor Trustee will notify the Holders, the Transferor, Seller and
Servicer).
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"Custodian" means Servicer in its capacity as agent of the
Trustee, as custodian of the Receivable Files and the Transferor acting as agent
for Servicer for the purpose of maintaining custody of the Receivables Files.
"Cutoff Date" means the [opening] of business on ___________
__, 200__.
"Cutoff Date Principal Balance" means, with respect to any
Receivable, the Initial Principal Balance of such Receivable minus the sum of
the portion of all payments received under such Receivable from or on behalf of
the related Obligor on or prior to the Cutoff Date and allocable to principal in
accordance with the terms of the Receivable.
"Dealer" means, with respect to any Receivable, the seller of
the related Financed Vehicle.
"Dealer Agreement" means an agreement between an Originator
and a Dealer pursuant to which such Originator acquires Motor Vehicle Loans from
the Dealer or gives such Dealer the right to induce persons to apply to such
Originator for loans in connection with the retail sale of Motor Vehicles by
such Dealer.
"Dealer Recourse" means, with respect to any Dealer, any
rights and remedies against such Dealer under the related Dealer Agreement
(other than with respect to any breach of representation or warranty thereunder)
with respect to credit losses on a Receivable secured by a Financed Vehicle sold
by such Dealer.
"Defaulted Receivable" means, with respect to any Collection
Period, a Receivable (other than a Purchased Receivable) which Servicer has
determined to charge off during such Collection Period in accordance with its
customary servicing practices; provided that any Receivable which Servicer is
obligated to repurchase or purchase shall be deemed to have become a Defaulted
Receivable during a Collection Period if Servicer fails to deposit the related
Purchase Amount on the related Deposit Date when due.
"Definitive Certificates" is defined in Section 5.8.
"Delivery" when used with respect to Account Property means:
(a) with respect to bankers' acceptances, commercial
paper, negotiable certificates of deposit and other
obligations that constitute "instruments" within the meaning
of Section 9-102(a)(47) of the UCC and are susceptible of
physical delivery, transfer thereof to Trustee or its nominee
or custodian by physical delivery to Trustee or its nominee or
custodian endorsed to, or registered in the name of, Trustee
or its nominee or custodian or endorsed in blank, and, with
respect to a "certificated security" (as defined in Section
8-102(4) of the UCC) transfer thereof (i) by delivery of such
certificated security endorsed to, or
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registered in the name of, Trustee or its nominee or custodian
or endorsed in blank to a "securities intermediary" (as
defined in Section 8-102(4) of the UCC) and the making by such
financial intermediary of entries on its books and records
identifying such certificated securities as belonging to
Trustee or its nominee or custodian and the sending by such
financial intermediary of a confirmation of the purchase of
such certificated security by Trustee or its nominee or
custodian, or (ii) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102(5) of the UCC) and
the making by such clearing corporation of appropriate entries
on its books reducing the appropriate securities account of
the transferor and increasing the appropriate securities
account of a financial intermediary by the amount of such
certificated security, the identification by the clearing
corporation of the certificated securities for the sole and
exclusive account of the financial intermediary, the
maintenance of such certificated securities by such clearing
corporation or its nominee subject to its exclusive control,
the sending of a confirmation by the financial intermediary of
the purchase by Trustee or its nominee or custodian of such
securities and the making by such financial intermediary of
entries on its books and records identifying such certificated
securities as belonging to Trustee or its nominee or custodian
(all of the foregoing, "Physical Property"), and, in any
event, any such Physical Property in registered form shall be
in the name of 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
any such Account Property to Trustee or its nominee or
custodian, consistent with changes in applicable law or
regulations or the interpretation thereof;
(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by 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 Account Property to an
appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a
"depository" 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
Trustee or its nominee or custodian of the purchase by Trustee
or its nominee or custodian 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 Trustee or its nominee or
custodian and indicating that such custodian holds such
Account Property solely as agent for Trustee or its nominee or
custodian; and such additional or alternative procedures as
may hereafter become appropriate to effect complete transfer
of ownership of any such Account Property to Trustee or
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its nominee or custodian, consistent with changes in
applicable law or regulations or the interpretation thereof;
and
(c) with respect to any item of Account Property that
is an uncertificated security under Article 8 of the UCC and
that is not governed by clause (b) above, registration on the
books and records of the issuer thereof in the name of the
financial intermediary, the sending of a confirmation by the
financial intermediary of the purchase by Trustee or its
nominee or custodian of such uncertificated security, the
making by such financial intermediary of entries on its books
and records identifying such uncertificated certificates as
belonging to Trustee or its nominee or custodian.
"Deposit Date" means, with respect to any Collection Period,
the Business Day preceding the related Distribution Date.
"Depository Agreement" means the agreement among Seller,
Servicer, Trustee and the initial Clearing Agency, dated the Closing Date.
"Determination Date" with respect to any Collection Period,
means the tenth day of the calendar month following such Collection Period (or,
if the tenth day is not a Business Day, the next succeeding Business Day).
"Direct Loan" means motor vehicle promissory notes and
security agreements executed by an Obligor in favor of a motor vehicle lender.
"Distribution Date" means the _____ day of each month (or, if
the ___ day is not a Business Day, the next succeeding Business Day), commencing
_______ __, 200[_]_.
"Dollar" and the sign "$" mean lawful money of the United
States.
"Eligible Deposit Account" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as the
long-term unsecured debt of such depository institution shall have a credit
rating from each Rating Agency in one of its generic rating categories which
signifies investment grade. Any such accounts (other than the Reserve Account)
may be maintained with [ ], or any of its Affiliates, if such accounts meet the
requirements described in clause (a) of the preceding sentence.
"Eligible Institution" means a depository institution (which
may be Servicer or any Affiliate of Servicer or Trustee) organized under the
laws of the United States of America or
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any one of the states thereof or the District of Columbia (or any domestic
branch of a foreign bank), which (a) has (i) either a long-term senior unsecured
debt rating of AA or a short-term senior unsecured debt or certificate of
deposit rating of A-1+ or better by S&P and (ii) (A) a short-term senior
unsecured debt rating of A-1 or better by S&P and (B) a short-term senior
unsecured debt rating of P-1 or better by Moody's, or any other long-term,
short-term or certificate of deposit rating acceptable to the Rating Agencies
and (b) whose deposits are insured by the Federal Deposit Insurance Corporation.
If so qualified, Servicer, any Affiliate of Servicer or Trustee may be
considered an Eligible Institution.
"Eligible Investments" shall mean any one or more of the
following types of investments:
(a) direct obligations of, and obligations fully
guaranteed as to timely payment by, the United States of
America;
(b) demand deposits, time deposits or certificates of
deposit of any depository institution (including any Affiliate
of the Transferor, Seller, Trustee or any Affiliate of the
Trustee) or trust company incorporated under the laws of the
United States of America or any state thereof or the District
of Columbia (or any domestic branch of a foreign bank) and
subject to supervision and examination by Federal or state
banking or depository institution authorities (including
depository receipts issued by any such institution or trust
company as custodian with respect to any obligation referred
to in clause (a) above or a portion of such obligation for the
benefit of the holders of such depository receipts); provided
that at the time of the investment or contractual commitment
to invest therein (which shall be deemed to be made again each
time funds are reinvested following each Distribution Date),
the commercial paper or other short-term senior unsecured debt
obligations (other than such obligations the rating of which
is based on the credit of a Person other than such depository
institution or trust company) of such depository institution
or trust company shall have a credit rating from S&P of A- 1+
and from Moody's of P-1;
(c) commercial paper (including commercial paper of
any Affiliate of the Transferor or Seller) having, at the time
of the investment or contractual commitment to invest therein,
a rating from S&P of A-1+ and from Moody's of P-1;
(d) investments in money market funds (including
funds for which Trustee or any of its Affiliates or any of
Seller's or Transferor's Affiliates is investment manager or
advisor) having a rating from S&P of AAA-m or AAAm- G and from
Moody's of Aaa;
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(e) bankers' acceptances issued by any depository
institution or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any
security that is a direct obligation of, or fully guaranteed
by, the United States of America or any agency or
instrumentality thereof, the obligations of which are backed
by the full faith and credit of the United States of America,
in either case entered into with a depository institution or
trust company (acting as principal) referred to in clause (b)
above; and
(g) any other investment with respect to which each
Rating Agency has provided written notice that such investment
would not cause such Rating Agency to downgrade or withdraw
its then current rating on the Class A Certificates or the
Class B Certificates.
"Eligible Servicer" means a Person which, at the time of its
appointment as Servicer, (a) has a net worth of not less than $50,000,000, (b)
is servicing a portfolio of motor vehicle retail installment sales contracts
and/or motor vehicle loans, (c) is legally qualified, and has the capacity, to
service the Receivables, (d) has demonstrated the ability to service a portfolio
of motor vehicle loans similar to the Receivables professionally and competently
in accordance with standards of skill and care that are consistent with prudent
industry standards, and (e) is qualified and entitled to use pursuant to a
license or other written agreement, and agrees to maintain the confidentiality
of, the software which Servicer uses in connection with performing its duties
and responsibilities under this Agreement or obtains rights to use, or develops
at its own expense, software which is adequate to perform its duties and
responsibilities under this Agreement.
"ERISA" means the Employment Retirement Income Security Act of
1974.
"Exchange Act" means the Securities Exchange Act of 1934.
"Final Scheduled Distribution Date" means the _______ __
Distribution Date.
"Final Scheduled Maturity Date" means the last day of the
Collection Period immediately preceding the Collection Period during which the
Final Scheduled Distribution Date falls.
"Financed Vehicle" means, with respect to a Receivable, the
Motor Vehicle, together with all accessories and accessions thereto, securing or
purporting to secure the indebtedness under such Receivable.
"Fitch" means Fitch, Inc., or its successor.
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"GAAP" is defined in Section 11.1(c).
"Holder" means the Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent, request or waiver pursuant to this Agreement, the interest
evidenced by any Certificate registered in the name of the Transferor, Servicer
or any Person actually known to an Authorized Officer of Trustee to be an
Affiliate of the Transferor or Servicer, shall not be taken into account in
determining whether the requisite percentage necessary to effect any such
consent, request or waiver shall have been obtained.
"Initial Principal Balance" means, in respect of a Receivable,
the amount advanced under the Receivable toward the purchase price of the
Financed Vehicle and related costs, including accessories, service and warranty
contracts, insurance premiums, other items customarily financed as part of
retail motor vehicle loans and/or retail installment sales contracts and other
fees charged by the Transferor or Dealer and included in the amount to be
financed, the total of which is shown as the initial principal balance in the
note and security agreement or retail installment sale contract evidencing and
securing such Receivable.
"Insurance Policies" means, all credit life and disability
insurance policies maintained by the Obligors and all Physical Damage Insurance
Policies.
"Lien" means a security interest, lien, charge, pledge,
preference, participation interest or encumbrance of any kind, other than liens
for taxes not yet due and payable, mechanics' or materialmen's liens and other
liens for work, labor or materials, and any other liens that may attach by
operation of law.
"Liquidation Proceeds" means, with respect to any Receivable
which has become a Defaulted Receivable, (a) insurance proceeds received by
Servicer with respect to the Insurance Policies, (b) amounts received by
Servicer in connection with such Defaulted Receivable pursuant to the exercise
of rights under that Receivable and (c) the monies collected by Servicer (from
whatever source, including proceeds of a sale of a Financed Vehicle or a
deficiency balance recovered after the charge-off of the related Receivable or
as a result of any Dealer Recourse) on such Defaulted Receivable net of any
expenses incurred by Servicer in connection therewith and any payments required
by law to be remitted to the Obligor.
"Majority Holders" means Holders of Certificates evidencing
[not less than a majority] of the aggregate outstanding principal balance of the
Class A Certificates and the Class B Certificates taken together as a single
class.
"Minimum Specified Reserve Balance" with respect to any
Distribution Date means the lesser of (i) $______ and (ii) the aggregate
outstanding Class A Certificate Balance and Class B Certificate Balance (after
giving effect to any distributions on the Certificates on such Distribution
Date).
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"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Motor Vehicle" means a new or used automobile or light duty
truck.
"Motor Vehicle Loan" means a Direct Loan or retail installment
sales contract secured by a Motor Vehicle originated by the Transferor or
another financial institution.
"Obligor" means, with respect to a Receivable, the borrower or
co-borrowers under the related Receivable and any co-signer of the Receivable or
other Person who owes or may be primarily or secondarily liable for payments
under such Receivable.
"Officer's Certificate" means a certificate signed by the
chairman, the president, any vice president or the treasurer of the Transferor
or Servicer, as the case may be, and delivered to Trustee.
"Opinion of Counsel" means a written opinion of counsel (who
may be an employee of the Transferor or Servicer or any of their Affiliates)
reasonably acceptable in form to Trustee.
"Original Certificate Balance" means the sum of the Original
Class A Certificate Balance and the Original Class B Certificate Balance.
"Original Class A Certificate Balance" means $_________.
"Original Class B Certificate Balance" means $_________.
"Original Pool Balance" means the Pool Balance as of the
Cutoff Date.
"Originator" means, with respect to any Direct Loan or retail
installment sales contract, the Transferor that was the lender with respect to
such Direct Loan or that acquired such Direct Loan or retail installment sales
contract from a Dealer or other Person.
"Payaheads" means early payments by or on behalf of Obligors
on Precomputed Receivables which, in accordance with the Servicer's customary
practices, do not constitute scheduled payments or full prepayments and are
applied to principal and interest in a subsequent period.
"Payahead Account" means the account designated as such,
established and maintained pursuant to Section 4.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, limited liability company, joint venture,
association, joint stock company, trust,
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unincorporated organization, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Physical Damage Insurance Policy" means a theft and physical
damage insurance policy maintained by the Obligor under a Receivable, providing
coverage against loss or damage to or theft of the related Financed Vehicle.
"Physical Property" is defined in paragraph (a) of the
definition of "Delivery".
"Pool Balance" means, at any time, the aggregate Principal
Balance of the Receivables (excluding Defaulted Receivables) at such time.
"Pool Factor" means, with respect to any Collection Period,
the Pool Balance as of the last day of such Collection Period divided by the
Original Pool Balance, expressed as a seven-digit decimal.
"Precomputed Receivable" means (i) an Actuarial Receivable,
(ii) a Rule of 78's Receivable or (iii) a Sum of Periodic Balances Receivable.
"Principal Balance" means, as of any time, for any Receivable,
the principal balance of such Receivable under the terms of the Receivable
determined in accordance with the Servicer's customary practices.
"Purchase Agreement" means each Purchase Agreement dated as of
________ __, 200_ by and between the Transferor and the Seller, as amended,
restated or otherwise modified from time to time.
"Purchase Amount" of any Receivable means, with respect to any
Deposit Date, an amount equal to the sum of (a) the outstanding Principal
Balance of such Receivable as of the last day of the preceding Collection Period
and (b) the amount of accrued and unpaid interest on such Principal Balance at
the related Contract Rate from the date a payment was last made by or on behalf
of the Obligor through and including the last day of such preceding Collection
Period, in each case after giving effect to the receipt of monies collected on
such Receivable in such preceding Collection Period.
"Purchased Receivable" means, at any time, a Motor Vehicle
Loan included in the Schedule of Receivables as to which payment of the Purchase
Amount has previously been made by the Transferor or Servicer pursuant to this
Agreement.
"Rating Agencies" means ▇▇▇▇▇'▇, S&P and Fitch.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have been given 10 days' prior notice thereof (or
such shorter period as shall be
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acceptable to the Rating Agencies) and that none of the Rating Agencies shall
have notified the Transferor Seller, Servicer or Trustee in writing that such
action will, in and of itself, result in a reduction or withdrawal of the then
current rating on the Class A Certificates or the Class B Certificates.
"Realized Losses" means, for any Collection Period, the
aggregate Principal Balances of any Receivables that became Defaulted
Receivables during such Collection Period.
"Receivable" means each Motor Vehicle Loan described in the
Schedule of Receivables, but excluding (i) Defaulted Receivables to the extent
the Principal Balances thereof have been deposited in the Collection Account and
(ii) any Purchased Receivables.
"Receivable File" is defined in Section 2.5.
"Record Date" means, subject to Section 1.4, with respect to
any Distribution Date, the last day of the related Collection Period.
"Related Agreements" means the Certificates, the Depository
Agreement, the Purchase Agreement and the underwriting agreement between Seller
and the underwriter(s) of the Certificates. The Related Agreements to be
executed by any party are referred to herein as "such party's Related
Agreements", "its Related Agreements" or by a similar expression.
"Required Rating" means a rating with respect to short term
deposit obligations of at least P-1 by Moody's and at least A-1 by S&P.
"Reserve Account" means the account established, maintained
and designated as the "Reserve Account" pursuant to Section 4.6.
"Reserve Account Initial Deposit" means cash or Eligible
Investments having a value of at least $____________.
"Reserve Account Property" means the Reserve Account, the
Reserve Account Initial Deposit and all proceeds of the Reserve Account and the
Reserve Account Initial Deposit, including all securities, investments, general
intangibles, financial assets and investment property from time to time credited
to and any security entitlement to the Reserve Account.
"Rule of 78's Receivable" means a Receivable that provides for
the payment by the Obligor of a specified total amount of payments, payable in
equal monthly installments on each due date, which total represents the
principal amount financed and add-on interest in an amount calculated at the
stated Contract Rate for the term of the Receivable and allocated to each
monthly payment based upon a fraction, the numerator of which is the number of
payments scheduled to have been made prior to the due date for such monthly
payments on such
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Receivable and the denominator of which is the sum of all such numbers of
payments to be made until the maturity of such Receivable.
"S&P" means Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇- ▇▇▇▇ Companies, Inc., or its successor.
"Schedule of Receivables" means, with respect to the Motor
Vehicle Loans to be conveyed to Seller by the Transferor and to Trustee by
Seller, the list identifying such retail Motor Vehicle Loans delivered to
Trustee on the Closing Date.
"Securities Intermediary" is defined in Section 4.6 of this
Agreement.
"Seller" means ▇▇▇▇▇▇ Brothers Asset Securitization LLC, in
its capacity as seller of the Receivables to the Trust under this Agreement, or
any successor pursuant to Section 6.3.
"Servicer" means [___________________], in its capacity as
servicer of the Receivables under this Agreement, any successor pursuant to
Section 7.3 or any successor Servicer appointed and acting pursuant to Section
8.2.
"Servicer Termination Event" means an event specified in
Section 8.1.
"Servicer's Report" is defined in Section 3.9.
"Servicing Fee" is defined in Section 3.8.
"Servicing Fee Rate" shall be ___% per annum, calculated on
the basis of a 360- day year consisting of twelve 30-day months.
"Servicing Officer" means any individual involved in, or
responsible for, the administration and servicing of the Receivables, whose name
appears on a list of servicing officers attached to an Officer's Certificate
furnished to Trustee by Servicer, as such list may be amended from time to time
by Servicer in writing.
"Simple Interest Method" means the method of allocating a
fixed level payment monthly installments between principal and interest,
pursuant to which such installment is allocated first to accrued and unpaid
interest at the Contract Rate on the unpaid principal balance and the remainder
of such installment is allocable to principal.
"Simple Interest Receivable" means any Receivable under which
the portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
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"Specified Reserve Account Balance" means, for any
Distribution Date, the greater of (a) ___% of the sum of the Class A Certificate
Balance plus the Class B Certificate Balance on such Distribution Date (after
giving effect to all payments on the Certificates to be made on or prior to such
Distribution Date), and (b) the Minimum Specified Reserve Balance as of such
Distribution Date.
"Sum of Periodic Balances Receivable" means a Receivable that
provides for the payment by the obligor of a specified total amount of payments,
payable in equal monthly installments on each due date, which total represents
the principal amount financed and add-on interest in an amount calculated at the
stated Contract Rate for the term of the Receivable and allocated to each
monthly payment based upon a fraction, the numerator of which is the principal
balance of such Receivable immediately prior to the due date for such monthly
payment and the denominator of which is the sum of all principal balances for
each monthly payment to be made until the maturity of such Receivable.
"Supplemental Servicing Fee" is defined in Section 3.8.
"Transferor" means [______________________________________].
"Trust" means the trust created by this Agreement, which
shall be known as [ ] Auto Receivables Trust [ ]-[ ].
"Trustee" means _________, a ___________, as Trustee under
this Agreement and any successor Trustee appointed and acting pursuant to this
Agreement.
"Trust Property" means:
(a) all right, title and interest of Seller in and to
the Receivables, and all moneys received thereon [on or] after
the Cutoff Date;
(b) all right, title and interest of Seller in the
security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of
Seller in the Financed Vehicles and any other property that
shall secure the Receivables;
(c) the interest of Seller in any proceeds with
respect to the Receivables from claims on any Insurance
Policies covering Financed Vehicles or the Obligors or from
claims under any lender's single interest insurance policy
naming the Transferor as an insured;
(d) rebates of premiums relating to Insurance
Policies and rebates of other items such as extended
warranties financed under the Receivables, in each
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case, to the extent the Servicer would, in accordance with its
customary practices, apply such amounts to the Principal
Balance of the related Receivable;
(e) the interest of Seller in any proceeds from (i)
any Receivable repurchased by a Dealer, pursuant to a Dealer
Agreement, as a result of a breach of representation or
warranty in the related Dealer Agreement, (ii) a default by an
Obligor resulting in the repossession of the Financed Vehicle
under the applicable Motor Vehicle Loan or (iii) any Dealer
Recourse or other rights relating to the Receivables under
Dealer Agreements;
(f) all right, title and interest in all funds on
deposit from time to time in the Collection Account, the
Payahead Account, the Class A Distribution Account and the
Class B Distribution Account (including the Account Property
related thereto) and in all investments and proceeds thereof
(but excluding all investment income thereon);
(g) all right, title and interest of Seller under
each Purchase Agreement, including the right of Seller to
cause the Transferor to repurchase Receivables from Seller;
(h) all right, title and interest of Seller in any
instrument or document relating to the Receivables; and
(i) the proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained herein, the
Trust Property shall not include, and the Trust shall not have
any right to, the Reserve Account or any funds actually or
deemed to be deposited in such account or any investments
therein.
"UCC" means the Uniform Commercial Code as in effect in the
relevant jurisdiction.
Section 1.2. Other Interpretative Provisions. For purposes of
this Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise
defined in this Agreement are used as defined in that Article; (c) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement; (d)
references to any Article, Section, Schedule, Appendix or Exhibit are references
to Articles, Sections, Schedules, Appendices and Exhibits in or to this
Agreement and references to any paragraph, subsection, clause or other
subdivision
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within any Section or definition refer to such paragraph, subsection, clause or
other subdivision of such Section or definition; (e) the term "including" means
"including without limitation"; (f) except as otherwise expressly provided
herein, references to any law or regulation refer to that law or regulation as
amended from time to time and include any successor law or regulation; (g)
references to any Person include that Person's successors and assigns; and (h)
headings are for purposes of reference only and shall not otherwise affect the
meaning or interpretation of any provision hereof.
Section 1.3. Calculations. All calculations of the amount of
interest accrued on the Certificates during any Collection Period and all
calculations of the amount of the Servicing Fee payable with respect to a
Collection Period shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
Section 1.4. References. All references to the Record Date
prior to the first Record Date in the life of the Trust shall be to the Closing
Date. All references to the first day of a Collection Period shall refer to the
opening of business on such day. All references to the last day of a Collection
Period shall refer to the close of business on such day. All references herein
to the close of business means the close of business, [ ] time.
Section 1.5. Action by or Consent of Holders. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Holders, such provision shall be deemed to refer to Holders of record as of the
Record Date immediately preceding the date on which such action is to be taken,
or consented to, by Holders.
ARTICLE II. THE TRUST PROPERTY.
Section 2.1. Conveyance of Trust Property. In consideration of
Trustee's delivery to Seller or its designee of authenticated Certificates, in
authorized denominations, in an aggregate amount equal to the Original
Certificate Balance, Seller hereby sells, transfers, assigns and conveys to
Trustee, upon the terms and conditions hereof, in trust for the benefit of the
Holders, the Trust Property, without recourse (except to the extent of the
Servicer's obligations under this Agreement and the Related Agreements). The
sale, transfer, assignment, setting over and conveyance made hereunder shall not
constitute and is not intended to result in an assumption by Trustee, any Holder
or any Certificate Owner of any obligation of the Transferor to the Obligors,
the Dealers or any other Person in connection with the Receivables and the other
Trust Property or any agreement, document or instrument related thereto.
Section 2.2. Representations and Warranties as to Each
Receivable. The Seller hereby makes the following representations and warranties
as to each Receivable on which Trustee shall rely in accepting the Trust
Property in trust and authenticating the Certificates. Unless otherwise
indicated, such representations and warranties shall speak as of the Closing
Date, but shall survive the sale, transfer and assignment of the Receivables and
the other Trust Property to the Trust.
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(a) Characteristics of Receivables. The Receivable
has been fully and properly executed by the parties thereto
and (i) is a Direct Loan made by an Originator or has been
originated by a Dealer in the ordinary course of such Dealer's
business and has been purchased by an Originator, in either
case, in the ordinary course of such Originator's business and
in accordance with such Originator's underwriting standards to
finance the retail sale by a Dealer of the related Financed
Vehicle or has otherwise been acquired by the Transferor, (ii)
the Originator of which has underwriting standards that
require physical damage insurance to be maintained on the
related Financed Vehicle, (iii) is secured by a valid,
subsisting, binding and enforceable first priority security
interest in favor of the Transferor in the Financed Vehicle
(subject to administrative delays and clerical errors on the
part of the applicable government agency and to any statutory
or other lien arising by operation of law after the Closing
Date which is prior to such security interest), which security
interest is assignable together with such Receivable, and has
been so assigned to Seller, and subsequently assigned by
Seller to Trustee, (iv) contains customary and enforceable
provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral of
the benefits of the security, (v) provided, at origination,
for level monthly payments (provided that the amount of the
last payment may be different), which fully amortize the
Initial Principal Balance over the original term, (vi)
provides for interest at the Contract Rate specified in the
Schedule of Receivables, (vii) was originated in the United
States, and (viii) constitutes "chattel paper" as defined in
the UCC.
(b) Individual Characteristics. The Receivables have
the following individual characteristics as of the Cutoff
Date: (i) each Receivable is secured by a Motor Vehicle; (ii)
each Receivable has a Contract Rate of at least ____% and not
more than ___%; (iii) each Receivable had a remaining number
of scheduled payments, as of the Cutoff Date, of not less than
______ and not more than _____; (iv) each Receivable had an
initial Principal Balance of not less than $_______ and not
more than $_____; (v) no Receivable was more than 30 days past
due as of the Cutoff Date; (vi) no Financed Vehicle had been
repossessed as of the Cutoff Date; (vii) no Receivable is
subject to a force placed Physical Damage Insurance Policy on
the related Financed Vehicle; [(viii) each Receivable is a
Simple Interest Receivable;] and (ix) the Dealer of the
Financed Vehicle has no participation in, or other right to
receive, any proceeds of the Receivable. The Receivables were
selected using selection procedures that were not intended by
the Transferor or Seller to be adverse to the Holders.
(c) Schedule of Receivables. The information with
respect to each Receivable set forth in the Schedule of
Receivables, including (without limitation) the identity and
address of the Obligor, account number, the Initial Principal
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Balance, the maturity date and the Contract Rate, was true and
correct in all material respects as of the close of business
on the Cutoff Date.
(d) Compliance with Law. The Receivable complied at
the time it was originated or made, and will comply as of the
Closing Date, in all material respects with all requirements
of applicable federal, state and local laws, and regulations
thereunder, including, to the extent applicable, usury laws,
the Federal Truth in Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇
Warranty Act, the Fair Debt Collection Practices Act, Federal
Reserve Board Regulations B and Z and any other consumer
credit, consumer protection, equal opportunity and disclosure
laws.
(e) Binding Obligation. The Receivable constitutes
the genuine, legal, valid and binding payment obligation in
writing of the Obligor, enforceable in all material respects
by the holder thereof in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights
generally, and the Receivable is not subject to any right of
rescission, setoff, counterclaim or defense, including the
defense of usury.
(f) Lien in Force. Neither Seller nor the Transferor
has taken any action which would have the effect of releasing
the related Financed Vehicle from the Lien granted by the
Receivable in whole or in part.
(g) No Amendment or Waiver. No material provision of
the Receivable has been amended, waived, altered or modified
in any respect, except such waivers as would be permitted
under this Agreement, and no amendment, waiver, alteration or
modification causes such Receivable not to conform to the
other representations or warranties contained in this Section.
(h) No Liens. Neither Seller nor the Transferor has
received notice of any Liens or claims, including Liens for
work, labor, materials or unpaid state or federal taxes,
relating to the Financed Vehicle securing the Receivable, that
are or may be prior to or equal to the Lien granted by the
Receivable.
(i) No Default. Except for payment delinquencies
continuing for a period of not more than 30 days as of the
Cutoff Date, to the knowledge of Seller, no default, breach,
violation or event permitting acceleration under the terms of
the Receivable exists and no continuing condition that with
notice or lapse of time, or both, would constitute a default,
breach, violation or event permitting acceleration under the
terms of the Receivable has arisen.
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(j) Insurance. The Receivable requires the Obligor to
insure the Financed Vehicle under a Physical Damage Insurance
Policy, pay the premiums for such insurance and keep such
insurance in full force and effect.
(k) Good Title. No Receivable has been sold,
transferred, assigned, or pledged by Seller to any Person
other than the Trust. Immediately prior to the transfer and
assignment herein contemplated, Seller had good and marketable
title to the Receivable free and clear of any Lien and had
full right and power to transfer and assign the Receivable to
the Trust and, immediately upon the transfer and assignment of
the Receivable to the Trust, the Trust shall have good and
marketable title to the Receivable, free and clear of any
Lien; and the Trust's interest in the Receivable resulting
from the transfer has been perfected under the UCC.
(l) Obligations. The Transferor has duly fulfilled
all obligations on its part to be fulfilled under, or in
connection with, the Receivable.
(m) Possession. There is only one original executed
Receivable, and immediately prior to the Closing Date, the
Transferor will have possession of such original executed
Receivable.
(n) No Government Obligor. The Obligor on the
Receivable is not the United States of America or any state
thereof or any local government, or any agency, department,
political subdivision or instrumentality of the United States
of America or any state thereof or any local government.
(o) Marking Records. By the Closing Date, Seller
shall have caused the portions of Seller's and the
Transferor's electronic master record of Motor Vehicle Loans
relating to the Receivables to be clearly and unambiguously
marked to show that the Receivable is owned by Trustee in
accordance with the terms of this Agreement.
(p) No Assignment. As of the Closing Date, Seller
shall not have taken any action to convey any right to any
Person that would result in such Person having a right to
payments received under the Insurance Policies or Dealer
Agreements, or payments due under the Receivable, that is
senior to, or equal with, that of Trustee.
(q) Lawful Assignment. The Receivable has not been
originated in, and is not subject to the laws of, any
jurisdiction under which the sale, transfer or assignment of
such Receivable hereunder or pursuant to transfers of the
Certificates are unlawful, void or voidable. Neither Seller
nor the Transferor has
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entered into any agreement with any obligor that prohibits,
restricts or conditions the assignment of any portion of the
Receivables.
(r) Dealer Agreements. A Dealer Agreement for each
Receivable is in effect whereby the Dealer warrants title to
the Motor Vehicle and indemnifies the Transferor against the
unenforceability of each Receivable sold thereunder, and the
rights of such Seller Affiliate thereunder, with regard to the
Receivable sold hereunder, have been validly assigned to and
are enforceable against the Dealer by the Seller and then to
and by the Trustee, along with any Dealer Recourse.
(s) Composition of Receivable. No Receivable has a
Principal Balance which includes capitalized interest or late
charges.
(t) Database File. The information included with
respect to each Receivable in the database file delivered
pursuant to Section 3.9(b) is accurate and complete in all
material respects.
Section 2.3. Representations and Warranties as to the
Receivables in the Aggregate. The Seller hereby makes the following
representations and warranties as to the Receivables on which Trustee shall rely
in accepting the Trust Property in trust and authenticating the Certificates.
Unless otherwise indicated, such representations and warranties shall speak as
of the Closing Date, but shall survive the sale, transfer and assignment of the
Receivables and the other Trust Property to the Trust.
(a) Amounts. The Original Pool Balance was
$______________.
(b) Aggregate Characteristics. The Receivables had
the following characteristics in the aggregate as of the
Cutoff Date: (i) approximately ___% of the Original Pool
Balance was attributable to loans for purchases of new
Financed Vehicles, and approximately ___% of the Original Pool
Balance was attributable to loans for purchases of used
Financed Vehicles; (ii) approximately ___%, ___%, ___% and
____% of the Original Pool Balance was attributable to
Receivables the mailing addresses of the Obligors with respect
to which are located in the States of __________, __________,
__________, and ___________, respectively, and no other state
accounts for more than 5% of the Original Pool Balance; (iii)
the weighted average Contract Rate of the Receivables was
____%; (iv) there are Receivables being conveyed by Seller to
the Trust; (v) the average Cutoff Date Principal Balance of
the Receivables was $________; and (vi) the weighted average
original term and weighted average remaining term of the
Receivables were ______ months and ___ months, respectively.
Section 2.4. Repurchase upon Breach. Seller, Servicer or
Trustee, as the case may be, shall inform the other parties to this Agreement
promptly, in writing, upon the discovery
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of any breach or failure to be true of the representations or warranties made by
Seller in Section 2.2, provided that the failure to give such notice shall not
affect any obligation of Seller. If the breach or failure shall not have been
cured by the last day of the Collection Period which includes the 60th day (or
if Seller elects, the 30th day) after the date on which Seller becomes aware of,
or receives written notice from Trustee or Servicer of, such breach or failure,
and such breach or failure materially and adversely affects the interests of
Trustee and the Holders in any Receivable, Seller shall purchase each such
affected Receivable from Trustee as of such last day of such Collection Period
at a purchase price equal to the Purchase Amount for such Receivable as of such
last day of such Collection Period. Notwithstanding the foregoing, any such
breach or failure with respect to the representations and warranties contained
in Section 2.2 will not be deemed to have such a material and adverse effect
with respect to a Receivable if the facts resulting in such breach or failure do
not affect the ability of the Trust to receive and retain payment in full on
such Receivable. In consideration of the repurchase of a Receivable hereunder,
Seller shall remit the Purchase Amount of such Receivable, no later than the
close of business on the next Deposit Date, in the manner specified in Section
4.4. The sole remedy of the Trust, Trustee or the Holders with respect to a
breach or failure to be true of the representations or warranties made by Seller
pursuant to Section 2.2 shall be to require Seller to purchase Receivables
pursuant to this Section 2.4.
Section 2.5. Custodian of Receivable Files. (a) Custody. To
assure uniform quality in servicing the Receivables and to reduce administrative
costs, Trustee, upon the execution and delivery of this Agreement, revocably
appoints the Custodian, as agent, and the Custodian accepts such appointment, to
act as agent on behalf of Trustee to maintain custody of the following documents
or instruments, which are hereby constructively delivered to Trustee with
respect to each Receivable (collectively, a "Receivable File"):
(i) the fully executed original of the Receivable;
(ii) any documents customarily delivered to or held
by Servicer evidencing the existence of any Physical
Damage Insurance Policies;
(iii) the original credit application, fully executed
by the Obligor;
(iv) the original certificate of title, or such other
documents as the Transferor, as appropriate, keeps on
file, in accordance with its customary procedures,
evidencing the security interest of the Transferor in
the Financed Vehicle;
(v) originals or true copies of all documents,
instruments or writings relating to extensions,
amendments or waivers of the Receivable; and
(vi) any and all other documents or electronic
records that the Transferor or Servicer, as the case
may be, keeps on file, in accordance
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with its customary procedures, relating to the
Receivable, any Insurance Policies, the Obligor or
the Financed Vehicle.
(b) Safekeeping. Servicer, in its capacity as
Custodian, shall hold the Receivable Files as agent on behalf
of Trustee for the benefit of all present and future Holders,
and maintain such accurate and complete accounts, records and
computer systems pertaining to each Receivable as shall enable
Servicer and Trustee to comply with the terms and provisions
of this Agreement applicable to them. In performing its duties
as Custodian hereunder, the Custodian shall act with
reasonable care, exercising the degree of skill, attention and
care that Custodian exercises with respect to receivable files
relating to other similar motor vehicle loans owned and/or
serviced by the Custodian and that is consistent with industry
standards. In accordance with its customary practice with
respect to its retail installment sale contracts, Custodian
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, and shall
maintain the Receivable Files in such a manner as shall enable
Trustee to verify, if Trustee so elects, the accuracy of the
record keeping of Custodian. Custodian shall promptly report
to Trustee any failure on its part to hold the Receivable
Files and maintain its accounts, records and computer systems
as herein provided, and promptly take appropriate action to
remedy any such failure. The Custodian hereby acknowledges
receipt of the Receivable File for each Receivable listed on
the Schedule of Receivables. Nothing herein shall be deemed to
require Trustee to verify the accuracy of the record keeping
of the Custodian.
(c) Maintenance of and Access to Records. The
Custodian shall maintain each Receivable File at the location
specified in Schedule A to this Agreement, or at such other
office of the Custodian within the United States (or, in the
case of any successor Custodian, within the State in which its
principal place of business is located) as shall be specified
to Trustee by 30 days' prior written notice. Upon Trustee's
reasonable request, the Custodian shall make available to
Trustee or its agents (or, when requested in writing by
Trustee, to its attorneys or auditors) the Receivable Files
and the related accounts, records and computer systems
maintained by the Custodian at such times during the normal
business hours of the Custodian for purposes of inspecting,
auditing or making copies or abstracts of the same.
(d) Release of Documents. Upon written instructions
from Trustee, Custodian shall release any document in the
Receivable Files to Trustee or its agent or designee, as the
case may be, at such place or places as Trustee may designate,
as soon thereafter as is practicable. Any document so released
shall be handled by Trustee with due care and returned to the
Custodian for safekeeping as
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soon as Trustee or its agent or designee, as the case may be,
shall have no further need therefor.
(e) Title to Receivables. The Custodian agrees that,
in respect of any Receivable File held by the Custodian
hereunder, the Custodian will not at any time have or in any
way attempt to assert any interest in such Receivable File or
the related Receivable, other than solely for the purpose of
collecting or enforcing the Receivable for the benefit of the
Trust and that the entire equitable interest in such
Receivable and the related Receivable File shall at all times
be vested in the Trust.
(f) Instructions; Authority to Act. The Custodian
shall be deemed to have received proper instructions with
respect to the Receivable Files upon its receipt of written
instructions signed by an Authorized Officer of Trustee. A
certified copy of excerpts of certain resolutions of the Board
of Directors of Trustee shall constitute conclusive evidence
of the authority of any such Authorized Officer to act and
shall be considered in full force and effect until receipt by
the Custodian of written notice to the contrary given by
Trustee.
(g) Custodian's Indemnification. Custodian shall
indemnify and hold harmless Trustee, its officers, directors,
employees and agents and the Holders from and against any and
all liabilities, obligations, losses, compensatory damages,
payments, costs or expenses (including legal fees if any) of
any kind whatsoever that may be imposed on, incurred or
asserted against Trustee or the Holders as the result of any
act or omission of Custodian relating to the maintenance and
custody of the Receivable Files; provided that the Custodian
shall not be liable hereunder to the extent that such
liabilities, obligations, losses, compensatory damages,
payments, costs or expenses result from the willful
misfeasance, bad faith or negligence of Trustee.
Indemnification under this Section 2.5(g) shall include
reasonable fees and expenses of counsel and expenses of
litigation and shall survive termination of this Agreement and
the resignation or removal of Trustee. If Custodian shall have
made any indemnity payments to Trustee pursuant to this
Section and Trustee thereafter shall collect any of such
amounts from Persons other than Custodian, Trustee shall
immediately upon receipt thereof repay such amounts to
Custodian, without interest.
(h) Effective Period and Termination. Servicer's
appointment as Custodian shall become effective as of the
Cutoff Date and shall continue in full force and effect until
terminated pursuant to this subsection (h). If Servicer shall
resign as Servicer in accordance with Section 7.5 or if all of
the rights and obligations of Servicer shall have been
terminated under Section 8.1, the appointment of Servicer as
Custodian hereunder may be terminated by Trustee or by the
Majority Holders, in the same manner as Trustee or such
Holders may
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terminate the rights and obligations of Servicer under Section
8.1. Trustee may terminate Servicer's appointment as Custodian
hereunder at any time with cause, or with 30 days' prior
written notice without cause, upon written notification to
Servicer. As soon as practicable after any termination of such
appointment Servicer shall deliver, or cause to be delivered,
the Receivable Files to Trustee, Trustee's agent or Trustee's
designee at such place or places as Trustee may reasonably
designate. Notwithstanding any termination of Servicer as
Custodian hereunder (other than in connection with a
termination resulting from the termination of Servicer, as
such, pursuant to Section 8.1), from and after the date of
such termination, and for so long as Servicer is acting as
such pursuant to this Agreement, Trustee shall provide, or
cause the successor Custodian to provide, access to the
Receivable Files to Servicer, at such times as Servicer shall
reasonably request, for the purpose of carrying out its duties
and responsibilities with respect to the servicing of the
Receivables hereunder.
(i) Delegation. Custodian may, at any time without
notice or consent, delegate any or all of its duties to the
Transferor; provided that no such delegation shall relieve
Custodian of its responsibility with respect to such duties
and Custodian shall remain obligated and liable to Trustee and
the Holders for its duties hereunder as if Custodian alone
were performing such duties.
ARTICLE III. ADMINISTRATION AND SERVICING OF TRUST PROPERTY.
Section 3.1. Duties of Servicer. (a) Servicer is hereby
authorized to act as agent for the Trust and in such capacity shall manage,
service, administer and make collections on the Receivables (other than
Purchased Receivables), and perform the other actions required by Servicer under
this Agreement, with reasonable care. Without limiting the standard set forth in
the preceding sentence, Servicer shall use a degree of skill, attention and care
that is not less than Servicer exercises with respect to comparable Motor
Vehicle Loans that it services for itself or others and that is consistent with
prudent industry standards. Servicer's duties shall include the collection and
posting of all payments, responding to inquiries by Obligors on the Receivables,
or by federal, state or local governmental authorities, investigating
delinquencies, sending payment coupons or monthly invoices to Obligors,
reporting required tax information to Obligors, accounting for Collections,
monitoring the status of Physical Damage Insurance Policies with respect to the
Financed Vehicles as provided in Section 3.4(a), furnishing monthly and annual
statements to Trustee with respect to distributions, providing collection and
repossession services in the event of Obligor default and performing the other
duties specified herein. Servicer shall also administer and enforce all rights
and responsibilities of the holder of the Receivables provided for in the
Physical Damage Insurance Policies as provided in Section 3.4(b) and the Dealer
Agreements. Without limiting the generality of the foregoing, Servicer is hereby
authorized and empowered by Trustee to execute and deliver, on behalf of itself,
the Trust, Trustee and the Holders, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables or
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to the Financed vehicles, all in accordance with this Agreement; provided that
notwithstanding the foregoing, Servicer shall not, except pursuant to an order
from a court of competent jurisdiction, release an Obligor from payment of any
unpaid amount under any Receivable or waive the right to collect the unpaid
balance of any Receivable from the Obligor, except in connection with a de
minimis deficiency which Servicer would not attempt to collect in accordance
with its customary procedures. If Servicer shall commence a legal proceeding to
enforce a Receivable, Trustee shall thereupon be deemed to have automatically
assigned such Receivable to Servicer, which assignment shall be solely for
purposes of collection. Trustee shall furnish Servicer with any powers of
attorney and other documents or instruments necessary or appropriate to enable
Servicer to carry out its servicing and administrative duties hereunder.
(b) Servicer may, at any time without notice (except
that Servicer shall give written notice to each Rating Agency
of any delegation outside the ordinary course of business of
the substantial portion of its servicing business) or consent,
delegate specific duties to subcontractors who are in the
business of performing such duties; provided that no such
delegation shall relieve Servicer of its responsibility with
respect to such duties and Servicer shall remain obligated and
liable to Trustee and the Holders for servicing and
administering the Receivables in accordance with this
Agreement as if Servicer alone were performing such duties.
Section 3.2. Collection of Receivable Payments. (a) Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due, and
otherwise act with respect to the Receivables, the Physical Damage Insurance
Policies, the Dealer Agreements and the other Trust Property in such manner as
will, in the reasonable judgment of Servicer, maximize the amount to be received
by the Trust with respect thereto, in accordance with the standard of care
required by Section 3.1. Servicer shall be entitled to amend or modify any
Receivable in accordance with its customary procedures if Servicer believes in
good faith that such amendment or modification is in the best interests of the
Trust; provided that Servicer may not, unless ordered by a court of competent
jurisdiction or otherwise required by applicable law, (i) extend a Receivable
beyond the Final Scheduled Maturity Date, or (ii) reduce the Principal Balance
or Contract Rate of any Receivable. If Servicer fails to comply with the
provisions of the preceding sentence, Servicer shall be required to purchase the
Receivable or Receivables affected thereby, for the Purchase Amount, in the
manner specified in Section 3.7 as of the close of business for the Collection
Period in which such failure occurs. Servicer may, in its discretion (in
accordance with its customary standards, policies and procedures), waive any
prepayment charge, late payment charge, extension fee or any other fee that may
be collected in the ordinary course of servicing a Receivable.
(b) If, in the course of collecting payments under
the Receivables, Servicer determines to set off any obligation
of Servicer to an Obligor against an amount payable by the
Obligor with respect to such Receivable, Servicer shall
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deposit the amount so set off in the Collection Account, no
later than the close of business on the Deposit Date for the
Collection Period in which the set-off occurs. All references
herein to payments or Liquidation Proceeds collected by
Servicer shall include amounts set-off by Servicer.
Section 3.3. Realization upon Receivables. (a) On behalf of
the Trust, Servicer shall charge off a Receivable as a Defaulted Receivable in
accordance with its customary standards (and, in no event later than ___ days
after a Receivable shall have become delinquent) and shall use reasonable
efforts to repossess and liquidate the Financed Vehicle securing any Defaulted
Receivable as soon as feasible after default, in accordance with the standard of
care required by Section 3.1. In taking such action, Servicer shall follow such
customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of Motor Vehicle Loans, and as are otherwise
consistent with the standard of care required under Section 3.1, which shall
include exercising any rights under the Dealer Agreements and selling the
Financed Vehicle at public or private sale. Servicer shall be entitled to
recover all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds or pursuing any deficiency
claim against the related Obligor, but only out of the cash proceeds of such
Financed Vehicle or any deficiency obtained from the Obligor. The foregoing
shall be subject to the provision that, in any case in which a Financed Vehicle
shall have suffered damage, 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.
(b) If Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement, the act of commencement shall be deemed to be an automatic
assignment from Trustee to Servicer of the rights under such Dealer Agreement.
If, however, in any enforcement suit or legal proceeding, it is held that
Servicer may not enforce a Dealer Agreement on the grounds that it is not a real
party in interest or a Person entitled to enforce the Dealer Agreement, Trustee,
on behalf of the Trust, at Servicer's expense, shall take such steps as Servicer
deems necessary to enforce the Dealer Agreement, including bringing suit in its
name or the names of the Holders.
Section 3.4. Physical Damage Insurance. (a) The Receivables
require that each Financed Vehicle be insured under a Physical Damage Insurance
Policy. Servicer shall monitor or cause to be monitored, the status of such
physical damage insurance coverage to the extent consistent with its customary
servicing procedures. If Servicer shall determine that an Obligor has failed to
obtain or maintain a Physical Damage Insurance Policy covering the related
Financed Vehicle, Servicer shall use its reasonable efforts to enforce the
rights of the holder of the Receivable under the Receivable to require the
Obligor to obtain such physical damage insurance, provided that Servicer shall
not be required to take such actions if there is in place a lender's single
interest policy with respect to the related Financed Vehicle that complies with
Servicer's customary requirements. It is understood that Servicer will not
"force-place" any Physical Damage Insurance Policy on any Financed Vehicle.
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(b) Servicer may ▇▇▇ to enforce or collect upon the
Physical Damage Insurance Policies, in its own name, if
possible, or as agent for the Trust. If Servicer elects to
commence a legal proceeding to enforce a Physical Damage
Insurance Policy, the act of commencement shall be deemed to
be an automatic assignment of the rights of the Trust under
such Physical Damage Insurance Policy to Servicer for purposes
of collection only. If, however, in any enforcement suit or
legal proceeding it is held that Servicer may not enforce a
Physical Damage Insurance Policy on the grounds that it is not
a real party in interest or a holder entitled to enforce the
Physical Damage Insurance Policy, Trustee, on behalf of the
Trust, at Servicer's expense, shall take such steps as
Servicer deems necessary to enforce such Physical Damage
Insurance Policy, including bringing suit in its name or the
name of Trustee for the benefit of the Holders. Servicer shall
make all claims and enforce its rights under any lender's
single interest insurance policy (to the extent such claims or
rights relate to Receivables) for the benefit of the Trust and
shall treat as Collections all related proceeds of such
policies.
Section 3.5. Maintenance of Security Interests in Financed
Vehicles. Servicer, in accordance with the standard of care required under
Section 3.1, shall take such reasonable steps as are necessary to maintain
perfection of the security interest created by each Receivable in the related
Financed Vehicle for the benefit of the Trust. Trustee, on behalf of the Trust,
hereby authorizes Servicer, and Servicer hereby agrees, to take such reasonable
steps as are necessary to re-perfect such security interest on behalf of the
Trust in the event Servicer receives notice of the relocation of a Financed
Vehicle. If there has been a Servicer Termination Event, upon the request of
Trustee, Servicer, at its expense, shall promptly and duly execute and deliver
such documents and instruments, and take such other reasonable actions as may be
necessary, as evidenced by an Opinion of Counsel delivered to Trustee to perfect
the Trust's interest in the Trust Property against all other Persons, including
the delivery of the Receivables and the Receivable Files to Trustee, its agent,
or its designee, the endorsement and delivery of the Physical Damage Insurance
Policies or the notification of the insurers thereunder, the execution of
transfer instruments, and the endorsement to Trustee and the delivery of the
certificates of title to the Financed Vehicles to the appropriate department or
departments of motor vehicles (or other appropriate governmental agency).
Section 3.6. Covenants of Servicer. Servicer makes the
following covenants on which Trustee relies in accepting the Trust Property in
trust and in executing and authenticating the Certificates:
(a) Security Interest to Remain in Force. Servicer
shall not release any Financed Vehicle from the security
interest granted by the related Receivable in whole or in
part, except upon payment in full of the Receivable or as
otherwise contemplated herein.
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(b) No Impairment. Servicer shall not impair in any
material respect the rights of the Holders in the Receivables,
the Dealer Agreements or the Physical Damage Insurance
Policies or, subject to clause (c), otherwise amend or alter
the terms thereof if, as a result of such amendment or
alteration, the interests of the Trust and the Holders
hereunder would be materially adversely affected.
(c) Amendments. Servicer shall not amend or otherwise
modify any Receivable (including the grant of any extension
thereunder), except in accordance with Section 3.2.
Section 3.7. Purchase by Servicer upon Breach. Seller,
Servicer or Trustee, as the case may be, shall inform the other parties
promptly, in writing, upon the discovery of any breach by Servicer of its
covenants under Section 3.5 or 3.6; provided that the failure to give such
notice shall not affect any obligation of Servicer. Unless the breach shall have
been cured by the last day of the Collection Period which includes the 60th day
(or the 30th day, if Servicer so elects) after the date on which Servicer
becomes aware of, or receives written notice of, such breach, and such breach or
failure materially and adversely affects the interests of Trustee and the
Holders in any Receivable, Servicer shall purchase such Receivable from Trustee
as of the last day of the Collection Period at a purchase price equal to the
Purchase Amount for such Receivable as of the last day of such Collection
Period; provided that in the case of a breach of the covenant contained in
Section 3.6(c), Servicer shall be obligated to purchase the affected Receivable
or Receivables on the Deposit Date immediately succeeding the Collection Period
during which Servicer becomes aware of, or receives written notice of, such
breach. In consideration of the purchase of a Receivable hereunder, Servicer
shall remit the Purchase Amount of such Receivable in the manner specified in
Section 4.4. The sole remedy of the Trust, Trustee or the Holders against
Servicer with respect to a breach pursuant to Section 3.5 or 3.6 shall be to
require Servicer to repurchase Receivables pursuant to this Section.
Section 3.8. Servicing Compensation. The servicing fee for (a)
the _____ 200[_] Distribution Date shall equal $________ and (b) for each
Distribution Date thereafter shall equal the product of (i) one-twelfth, (ii)
the Servicing Fee Rate and (iii) the Pool Balance as of the opening of business
on the first day of the related Collection Period (the "Servicing Fee").
Servicer shall also be entitled to retain any late fees, extension fees,
prepayment charges (including, in the case of any Rule of 78's Receivable or Sum
of Periodic Balances Receivable that is prepaid in full, amounts received in
excess of the outstanding Principal Balance of such Receivable and accrued
interest thereon calculated as if such Receivable were an Actuarial Receivable)
and certain non-sufficient funds charges and other administrative fees or
similar charges allowed by applicable law with respect to Receivables collected
(from whatever source) on the Receivables and shall be paid any interest earned
on deposits in the Accounts (the "Supplemental Servicing Fee"). It is understood
and agreed that Available Interest or Available Principal shall not include any
amounts retained by Servicer which constitute Supplemental Servicing Fees. The
Servicing Fee in respect of a Collection Period (together with any portion of
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the Servicing Fee that remains unpaid from prior Distribution Dates), if the
Rating Agency Condition is satisfied, may be paid at the beginning of such
Collection Period out of Collections for such Collection Period. As provided in
Section 4.5, as additional compensation, Servicer shall be entitled to receive
on each Distribution Date, any Additional Servicing for such Distribution Date.
Section 3.9. Servicer's Report. (a) On each Determination
Date, Servicer shall deliver to Trustee, each Paying Agent and Seller, with a
copy to the Rating Agencies, a Servicer's Report substantially in the form of
Exhibit C (a "Servicer's Report") containing, among other things, (i) all
information necessary to make the deposits, transfers and distributions required
by Sections 4.4, 4.5 and 4.6, (ii) all information necessary for sending
statements to Holders pursuant to Section 4.7, (iii) all information necessary
to prepare the certificate described in Section 9.3, (iv) all information
necessary to determine if there has been a Servicer Termination Event under
Section 8.1, and (v) all information necessary to reconcile all deposits to, and
withdrawals from, the Collection Account for such Distribution Date and the
related Collection Period. Servicer also shall separately identify (by account
number of the Receivable as it appears in the Schedule of Receivables) to
Trustee in a written notice or a list in computer readable form the Receivables
to be purchased by Servicer, as the case may be, on the related Deposit Date,
and each Receivable which became a Defaulted Receivable during the related
Collection Period.
(b) Servicer shall provide Trustee with a database
file for the Receivables at or prior to the Closing Date (but
with information as of the close of business on the Cutoff
Date).
Section 3.10. Annual Statement as to Compliance. (a) Servicer
shall deliver to Trustee and each Rating Agency, on or before ___________ of
each year, beginning on ___________, 200[_]_, an Officer's Certificate, dated as
of _______________ of such year, stating that (i) a review of the activities of
Servicer during the preceding 12-month period (or, in the case of the first such
report, during the period from the Closing Date to ___________, 200[_]_) and of
its performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, Servicer has fulfilled all its obligations in all material respects
under this Agreement throughout such year, or, if there exists any uncured
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof.
(b) Servicer shall deliver to Trustee and each Rating
Agency, promptly after having obtained knowledge thereof, but
in no event later than five Business Days thereafter, written
notice in an Officer's Certificate of any event which
constitutes, or with the giving of notice or lapse of time or
both, would become, a Servicer Termination Event under Section
8.1.
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Section 3.11. 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 or Seller), to
deliver to Seller, Trustee and each Rating Agency within 120 days following the
end of each fiscal year of the Servicer, a report to the effect that such firm
has examined the Servicer's assertion that it has complied with the minimum
servicing standards set forth in the Mortgage Banker's Association of America's
Uniform Single Attestation Program for Mortgage Bankers ("USAP") for the
previous twelve months ended June 30, and that such examination (1) included
test relating to the servicing or administration of the Receivables in
accordance with the requirements of the USAP, to the extent the procedures in
such program apply to the servicing or administration of the Receivables and (2)
except as described in the report, disclosed no exceptions or errors in the
records relating to the servicing or administration of the Receivables that, in
the firm's opinion, paragraph six of such program requires such firm to report.
Such report will also indicate that the firm is independent of
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
Section 3.12. Access to Certain Documentation and Information
Regarding Receivables. Servicer shall provide Trustee and the Holders with
access to the Receivable Files (in the case of the Holders, only in such cases
where it shall be required by applicable statutes or regulations to give access
to such documentation as demonstrated by evidence satisfactory to Servicer in
its reasonable judgment). Such access shall be afforded without charge, but only
upon reasonable request and during normal business hours at the offices of
Servicer. Nothing in this Section shall affect the obligation of Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors, and the failure of Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section. Any
Holder, by its acceptance of a Certificate, shall be deemed to have agreed to
keep any information obtained by it pursuant to this Section confidential and
not to use such information for any other purpose, except as required by
applicable law.
Section 3.13. Reports to the Commission. Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Exchange Act, and the rules and
regulations of the Commission thereunder.
Section 3.14. Reports to the Rating Agency. Servicer shall
deliver to each Rating Agency a copy of all reports or notices furnished or
delivered pursuant to this Article and a copy of any amendments, supplements or
modifications to this Agreement and any other information reasonably requested
by such Rating Agency to monitor this transaction.
Section 3.15. Servicer Expenses. Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of the
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Trustee, independent accountants, taxes imposed on Servicer and expenses
incurred in connection with distributions and reports to Holders.
ARTICLE IV. DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO HOLDERS.
Section 4.1. Establishment of Accounts. (a) Trustee, on behalf
of the Trust and for the benefit of the Holders, shall establish and maintain in
the name of Trustee one or more segregated Eligible Deposit Accounts
(collectively, the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Holders. Trustee, on behalf of the Trust and for the benefit of the Class A
Holders, shall establish and maintain in the name of Trustee an Eligible Deposit
Account (the "Class A Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Class A Holders. Trustee, on behalf of the Trust and for the benefit of the
Class B Holders, shall establish and maintain in the name of Trustee an Eligible
Deposit Account (the "Class B Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Class B Holders. Trustee on behalf of the Trust and for the benefit of the
Holders, shall establish and maintain in the name of Trustee an Eligible Deposit
Account (the "Payahead Account"), bearing a designation clearly indicating that
the funds therein are held for the benefit of the Holders. The Collection
Account, the Class A Distribution Account, the Class B Distribution Account, and
the Payahead Account shall be initially established and maintained with the
trust department of Trustee.
(b) Funds on deposit in the Collection Account, the
Class A Distribution Account, the Class B Distribution
Account, and the Payahead Account shall be invested by Trustee
in Eligible Investments selected by Servicer (pursuant to
standing instructions or otherwise) and confirmed in writing
by Servicer to Trustee; provided that, it is understood and
agreed that neither Servicer nor Trustee shall be liable for
any loss arising from such investment in Eligible Investments.
All such Eligible Investments shall be held by Trustee for the
benefit of the beneficiaries of the applicable Account;
provided that on each Distribution Date all interest and other
investment income (net of losses and investment expenses) on
funds on deposit therein shall be withdrawn from the Accounts
at the written direction of Servicer and shall be paid to
Servicer and shall not be available or otherwise subject to
any claims or rights of the Holders. Other than as permitted
by each Rating Agency, funds on deposit in the Accounts with
respect to any Collection Period or Distribution Date shall be
invested only in Eligible Investments that, except for money
market funds, will mature so that such funds will be available
at the close of business on the related Deposit Date. Funds
deposited in an Account on a Deposit Date which immediately
precedes a Distribution Date upon the maturity of any Eligible
Investments are not required to be (but may be) invested
overnight. No Eligible Investment with a stated maturity shall
be disposed of prior to that maturity unless a default occurs
with
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respect to that Eligible Investment and Servicer directs
Trustee in writing to dispose of it.
(c) Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the
Accounts and in all proceeds thereof (excluding all income
thereon) and all such funds, investments and proceeds shall be
part of the Trust Property. The Accounts shall be under the
sole dominion and the exclusive custody and control of
Trustee, and Trustee shall have sole signature authority with
respect thereto. If, at any time, any of the Accounts ceases
to be an Eligible Deposit Account, Trustee (or Servicer on its
behalf) shall within 10 Business Days (or such longer period
as to which each Rating Agency may consent) establish a new
Account as an Eligible Deposit Account and shall transfer any
cash and/or any investments that are in the existing Account
which is no longer an Eligible Deposit Account to such new
Account.
Section 4.2. Collections. (a) Subject to the provisions of the
succeeding sentence and of subsections (b) and (c), Servicer shall remit to the
Collection Account all payments (other than amounts constituting Supplemental
Servicing Fees) by or on behalf of the Obligors on the Receivables, including
all Liquidation Proceeds received by Servicer during any Collection Period, as
soon as practicable, but in no event after the close of business on the second
Business Day, after receipt thereof. Subject to the provisions of subsections
(b) and (c), on the Closing Date, Servicer shall deposit in the Collection
Account all payments by or on behalf of the Obligors on the Receivables received
by Servicer after the Cutoff Date and on or prior to the second Business Day
immediately preceding the Closing Date.
(b) Notwithstanding the provisions of subsection (a),
if [_________] is the Servicer and (i) Servicer shall have the
Required Rating or (ii) Trustee otherwise shall have received
written notice from each of the Rating Agencies that the then
outstanding rating on the Class A Certificates and the Class B
Certificates would not be lowered or withdrawn as a result,
Servicer may deposit all amounts referred to in subsection (a)
for any Collection Period into the Collection Account not
later than the close of business on the Deposit Date with
respect to such Collection Period; provided that if (x) a
Servicer Termination Event has occurred and is continuing, (y)
Servicer has been terminated as such pursuant to Section 8.1
or (z) Servicer ceases to have the Required Rating, Servicer
shall deposit such amounts (including any amounts then being
held by Servicer) into the Collection Account as provided in
Section 4.2(a). Notwithstanding the foregoing, the provisions
of the proviso to the preceding sentence shall not be
applicable to a successor Servicer solely by reason of the
occurrence of an event specified in clauses (x), (y) and (z)
of such proviso with respect to the outgoing Servicer. Pending
the deposit of the amounts referred to in subsection (a) into
the Collection Account, such amounts may be employed by
Servicer at its own risk and for its own benefit and need not
be segregated from Servicer's own funds.
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Any losses resulting from Servicer's actions shall be borne
exclusively by the Servicer. Servicer shall promptly notify
Trustee in writing if it shall obtain or lose the Required
Rating.
(c) Notwithstanding the provisions of subsections (a)
and (b), Servicer may retain, or will be entitled to be
reimbursed, from amounts otherwise payable into, or on deposit
in, the Collection Account with respect to a Collection Period
any amounts previously deposited in the Collection Account but
later determined to have resulted from mistaken deposits or
postings or checks returned for insufficient funds, in each
case, with respect to which Servicer has not been previously
reimbursed hereunder. The amount to be retained or reimbursed
hereunder shall not be included in Collections with respect to
the related Distribution Date.
(d) With respect to each Precomputed Receivable,
collections and payments by or on behalf of an obligor (other
than any amounts constituting Supplemental Servicing Fees) for
each Collection Period shall be applied to the scheduled
payment on such Precomputed Receivable for such Collection
Period.
To the extent such collections and payments on a Precomputed Receivable during a
Collection Period exceed the scheduled payment on such Precomputed Receivable
and are insufficient to prepay the Precomputed Receivable in full, collections
shall be treated as Payaheads until such later Collection Period as such
Payaheads may be transferred to the Collection Account and applied either to the
scheduled payments due or to prepay the Precomputed Receivable in full in
accordance with Section 4.5.
Section 4.3. [Reserved].
Section 4.4. Additional Deposits; Net Deposits. (a) On or
prior to each Deposit Date, Servicer shall remit to the Collection Account, in
next-day or immediately available funds, the aggregate Purchase Amounts of the
Receivables to be purchased by it under an obligation that arose during the
preceding Collection Period pursuant to Section 2.4, 3.7 or 10.2, respectively.
(b) Servicer may make the remittances to be made by
it pursuant to this Article IV net of amounts to be
distributed to it pursuant to Section 4.5 (but subject to the
priorities set forth therein), for so long as (i) no Servicer
Termination Event has occurred and is continuing and (ii)
Servicer has not been terminated as such pursuant to Section
8.1; provided that Servicer shall account for all of such
amounts in the related Servicer's Report as if such amounts
were deposited and distributed separately; provided further
that, if an error is made by Servicer in calculating the
amount to be deposited or retained by it and a shortfall in
the amount deposited in the Collection Account results,
Servicer shall make a
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payment of the deficiency to the Collection Account,
immediately upon becoming aware, or receiving notice from
Trustee, of such error.
Section 4.5. Distributions. (a) On each Determination Date,
Servicer shall calculate all amounts required to determine the amounts to be
deposited on the related Distribution Date in the Class A Distribution Account
and the Class B Distribution Account which calculations shall be set forth in
the Servicer's Report delivered to Trustee on or before such Determination Date.
(b) On or before each Distribution Date, Servicer
shall instruct Trustee in writing (based on the information
contained in Servicer's Report delivered on the related
Determination Date pursuant to Section 3.9) to, and the
Trustee shall:
(i) withdraw from the Payahead Account and deposit in
the Collection Account, in immediately available
funds, (x) with respect to each Precomputed
Receivable for which the payments made by or on
behalf of the obligor for the related Collection
Period are less than the scheduled payment for the
related Collection Period, the amount of Payaheads,
if any, made with respect to such Receivable which,
when added to the amount of such payments, is equal
to the amount of such scheduled payment, (y) with
respect to each Precomputed Receivable for which
prepayments insufficient to prepay the Receivable in
full have been made by or on behalf of the Obligor
for the related Collection Period, the amount of
Payaheads, if any, made with respect to such
Receivable which, when added to the amount of such
prepayments, is equal to an amount sufficient to
prepay such Receivable in full, and (z) the amount of
all Payaheads, if any, made with respect to any
Purchased Receivable; and
(ii) withdraw from the Collection Account and deposit
in the Payahead Account (or receive from the
Servicer, which will remit to the Trustee for deposit
in the Payahead Account, as the case may be), in
immediately available funds, the aggregate amount of
collections on Precomputed Receivables treated as
Payaheads pursuant to Section 4.2 for the Collection
Period related to such Distribution Date.
(c) On each Distribution Date, based on the related
Servicer's Report, Trustee will make the following deposits
and distributions from the Collection Account by [ ] a.m.
(___________, ________ time), to the extent of the sum of
Available Interest and any Available Reserve Amount (and, in
the case of shortfalls in the Class A Interest Distributable
Amount occurring under clause (ii), the Class B Percentage of
Available Principal to the extent of such shortfalls), in the
following priority:
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(i) to Servicer, any unpaid Servicing Fee for the
related Collection Period and all unpaid Servicing
Fees from prior Collection Periods;
(ii) to the Class A Distribution Account, the Class A
Interest Distributable Amount for such Distribution
Date; and
(iii) to the Class B Distribution Account, the Class
B Interest Distributable Amount for such Distribution
Date.
On each Distribution Date, based on the related Servicer's Report, Trustee will
make the following deposits and distributions, to the extent of the portion of
Available Principal, Available Interest and Available Reserve Amount remaining
after the application of clauses (i), (ii) and (iii), in the following priority:
(iv) to the Class A Distribution Account, the Class A
Principal Distributable Amount for such Distribution
Date;
(v) to the Class B Distribution Account, the Class B
Principal Distributable Amount for such Distribution
Date;
(vi) to the Reserve Account, any amounts remaining,
until the amount on deposit in the Reserve Account
equals the Specified Reserve Account Balance;
(vii) to the Servicer, the Additional Servicing for
such Distribution Date; and
(viii) to the Transferor, any amounts remaining.
(d) On each Distribution Date, all amounts on deposit
in the Class A Distribution Account will be distributed to the
Class A Holders (determined as of the related Record Date) by
Trustee and all amounts on deposit in the Class B Distribution
Account will be distributed to the Class B Holders (determined
as of the related Record Date) by Trustee. Except as provided
in Section 10.1, payments under this paragraph shall be made
to the Holders by check mailed by Trustee to each Holder's
respective address of record (or, in the case of Certificates
registered in the name of a Clearing Agency, or its nominee,
by wire transfer of immediately available funds). To the
extent that Trustee is required to wire funds to the Holders
from the Class A Distribution Account or the Class B
Distribution Account, as applicable, it shall request the bank
maintaining the Class A Distribution Account or the Class B
Distribution Account, as applicable, to make a wire transfer
of the amount to be distributed and the bank maintaining the
Class A Distribution Account or the Class B Distribution
Account, as
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applicable, shall promptly deliver to Trustee a confirmation
of such wire transfer. To the extent that Trustee is required
to make payments to Holders by check hereunder, it shall
request the bank maintaining the Class A Distribution Account
or the Class B Distribution Account, as applicable, to provide
it with a supply of checks to make such payments. The bank
shall, if a request is made by Trustee for a wire transfer by
[ ] A.M. ( , time) on any Distribution Date, wire such funds
in accordance with such instructions by [ ] A.M. ( , time) on
such Distribution Date, and it will otherwise act in
compliance with the provisions of this paragraph and the other
provisions of this Agreement applicable to it as the bank
maintaining the Class A Distribution Account or the Class B
Distribution Account, as applicable. Servicer shall take all
necessary action (including requiring an agreement to such
effect) to ensure that any bank maintaining the Class A
Distribution Account or the Class B Distribution Account, as
applicable, agrees to comply, and complies, with the
provisions of this paragraph and the other provisions of this
Agreement applicable to it as the bank maintaining the Class A
Distribution Account or the Class B Distribution Account, as
applicable.
Section 4.6. Reserve Account. (a) Servicer shall establish and
maintain in the name of the Trustee an Eligible Deposit Account (the "Reserve
Account"). The Reserve Account shall be initially established and maintained
with the Trustee (the "Securities Intermediary"). On the Closing Date, the
Servicer shall deposit or cause to be deposited in the Reserve Account an amount
equal to the Reserve Account Initial Deposit.
(b) Trustee shall, at the written direction of
Administrator, direct the Securities Intermediary to invest
funds on deposit in the Reserve Account in Eligible
Investments selected by Administrator and confirmed in writing
by Administrator to Trustee; provided that it is understood
and agreed that none of Trustee, Securities Intermediary or
Administrator shall be liable for any loss arising from such
investment in Eligible Investments. Funds on deposit in the
Reserve Account shall be invested in Eligible Investments that
will mature so that all such funds will be available at the
close of business on each Deposit Date; provided further that
to the extent permitted by the Rating Agencies following
written request by Administrator, funds on deposit in the
Reserve Account may be invested in Eligible Investments that
mature later than the next Deposit Date. Funds deposited in
the Reserve Account on a Deposit Date upon the maturity of any
Eligible Investments are not required to be (but may be)
invested overnight.
(c) On each Distribution Date, any amounts on deposit
in the Collection Account with respect to the preceding
Collection Period after payments to Servicer, the Class A
Distribution Account and the Class B Distribution Account have
been made will be deposited into the Reserve Account until the
amount of the Reserve Account is equal to the Specified
Reserve Account Balance.
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(d) The Reserve Account shall be under the sole
custody and control of Trustee. If, at any time, the Reserve
Account ceases to be an Eligible Deposit Account, Trustee
shall within 10 Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Reserve Account as an Eligible
Deposit Account and shall transfer any cash and/or any
investments that are in the existing account which is no
longer an Eligible Deposit Account to such new Reserve
Account.
(e) On each Distribution Date, the amount available
in the Reserve Account (the "Available Reserve Amount") will
equal the lesser of (i) the amount on deposit in the Reserve
Account (exclusive of investment earnings) and (ii) the
Specified Reserve Account Balance. On each Deposit Date,
Trustee will withdraw funds from the Reserve Account to the
extent that (A) the sum of the amounts required to be
distributed to Holders and the accrued and unpaid Servicing
Fees payable to Servicer on such Distribution Date exceeds (B)
the amount on deposit in the Collection Account with respect
to the preceding Collection Period (net of net investment
income). The aggregate amount to be withdrawn from the Reserve
Account on any Deposit Date shall not exceed the Available
Reserve Amount with respect to the related Distribution Date.
Trustee will deposit the proceeds of such withdrawal into the
Collection Account on or before such Distribution Date with
respect to which such withdrawal was made.
(f) Amounts on deposit in the Reserve Account will be
released to Transferor on each Distribution Date to the extent
that the amount credited to the Reserve Account would exceed
the Specified Reserve Account Balance. Upon any distribution
to Transferor of amounts from the Reserve Account, the Holders
will not have any rights in, or claims to, such amounts.
Amounts distributed to Transferor from the Reserve Account in
accordance with this Section shall not be available under any
circumstances to the Trust, Trustee or the Holders and
Transferor shall in no event thereafter be required to refund
any such distributed amounts.
(g) Investment earnings attributable to the Reserve
Account Property and proceeds therefrom shall be held by
Trustee for the benefit of Transferor. Investment earnings
attributable to the Reserve Account Property shall not be
available to pay the distributions provided for in Section 4.5
and shall not otherwise be subject to any claims or rights of
the Holders or Servicer. Trustee shall cause all investment
earnings attributable to the Reserve Account to be distributed
on each Distribution Date to Transferor.
(h) Transferor may at any time, without consent of
Holders, sell, transfer, convey or assign in any manner its
rights to and interests in distributions
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from the Reserve Account; provided that (i) the Rating
Agencies confirm in writing that such action will not result
in a reduction or withdrawal of the rating of the Class A
Certificates or the Class B Certificates, (ii) Transferor
provides to Trustee an Opinion of Counsel from independent
counsel that such action will not cause Trust to be classified
as an association (or publicly traded partnership) taxable as
a corporation for federal income tax purposes and (iii) such
transferee or assignee agrees in writing to take positions for
federal income tax purposes consistent with the federal income
tax positions agreed to be taken by Transferor.
Section 4.7. Statements to Holders. On each Distribution Date,
Servicer shall provide to Trustee (with a copy to each Rating Agency) written
instructions for Trustee to forward to each Holder of record a statement setting
forth at least the following information as to the Certificates to the extent
applicable:
(a) the amount of the distribution allocable to
principal on the Class A Certificates and the Class B
Certificates;
(b) the amount of the distribution allocable to
interest on the Class A Certificates and the Class B
Certificates;
(c) the amount of the Servicing Fee paid to Servicer
with respect to the related Collection Period;
(d) the Class A Certificate Balance, the Class A Pool
Factor, the Class B Certificate Balance and the Class B Pool
Factor as of such Distribution Date, after giving effect to
payments allocated to principal reported under clause (a);
(e) the Pool Balance as of the close of business on
the last day of the preceding Collection Period;
(f) the amount of Defaulted Receivables and
Liquidation Proceeds, if any, for such Collection Period;
(g) the aggregate Purchase Amount of Receivables
purchased by Servicer with respect to the related Collection
Period;
(h) the Class A Interest Carryover Shortfall, the
Class B Interest Carryover Shortfall, the Class A Principal
Carryover Shortfall and the Class B Principal Carryover
Shortfall, if any, in each case as applicable to each of the
Class A Certificates and the Class B Certificates, and the
change in such amounts from the preceding statement;
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(i) the balance of the Reserve Account on such
Distribution Date, after giving effect to changes therein on
such Distribution Date;
(j) the Specified Reserve Account Balance as of the
close of business on such Distribution Date; and
(k) the number, and aggregate principal amount
outstanding, of Receivables past due 31-60, 61-90 and over 90
days.
Each amount set forth pursuant to clauses (a), (b) and (c) shall be expressed in
the aggregate and as a dollar amount per $1,000 of original denomination of a
Certificate.
Within a reasonable period of time after the end of each calendar year,
but not later than the latest date permitted by law, Servicer shall furnish a
report to the Trust and Trustee shall furnish, or cause to be furnished, to each
Person who at any time during such calendar year shall have been a Holder, a
statement based upon such report as to the sum of the amounts determined in
clauses (a) and (b) above for such calendar year, or, in the event such Person
shall have been a Holder during a portion of such calendar year, for the
applicable portion of such year, and such other information as is available to
Servicer as Servicer deems necessary or desirable to enable the Holders to
prepare their federal income tax returns. The obligation of the Trustee set
forth in this paragraph shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided pursuant to any
requirement of the Code.
ARTICLE V. THE CERTIFICATES.
Section 5.1. The Certificates. Trustee shall, upon written
order or request signed in the name of Seller by one of its officers authorized
to do so and delivered to an Authorized Officer of Trustee, execute on behalf of
the Trust, authenticate and deliver the Certificates to or upon the order of
Seller in the aggregate principal amount and denominations as set forth in such
written order or request. The Certificates shall be issuable in denominations of
$10,000 and integral multiples thereof; provided that one Class A Certificate
and one Class B Certificate may be issued in a denomination that represents the
residual amount of the original Class A Certificate Balance and the Original
Class B Certificate Balance, respectively. Upon initial issuance, the Class A
Certificates and the Class B Certificates shall be in the form of Exhibit A and
Exhibit B, respectively, which are incorporated by reference herein, and shall
be issued as provided in Section 5.8, in an aggregate amount equal to the
Original Class A Certificate Balance and the Original Class B Certificate
Balance, respectively. The Certificates shall be executed by Trustee on behalf
of the Trust by manual or facsimile signature of an Authorized Officer of
Trustee under Trustee's seal imprinted thereon and attested by the manual or
facsimile signature of an Authorized Officer of Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be valid and binding obligations of the Trust, notwithstanding that
such individuals shall have ceased to be so authorized prior to the
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authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates.
Section 5.2. Authentication of Certificates. No Certificate
shall entitle the Holder thereof to any benefit under this Agreement, or shall
be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication, substantially in the form set forth in the form
of Certificates attached hereto as Exhibit A and Exhibit B, executed by Trustee
by manual signature. Such authentication shall constitute conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 5.3. Registration of Transfer and Exchange of
Certificates. Trustee shall maintain, or cause to be maintained, at the office
or agency to be maintained by it in accordance with Section 5.7, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Class A Certificate or Class B Certificate at such office or
agency, Trustee shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Class A Certificates or
Class B Certificates, as the case may be, in authorized denominations of a like
aggregate amount. At the option of a Holder, Class A Certificates or Class B
Certificates may be exchanged for other Class A Certificates or Class B
Certificates, as the case may be, of authorized denominations of a like
aggregate amount at the office or agency maintained by Trustee in accordance
with Section 5.7. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
duly executed by the Holder and in a form satisfactory to Trustee. No service
charge shall be made for any registration of transfer or exchange of
Certificates, but 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. All Certificates surrendered for registration of
transfer or exchange shall be cancelled and disposed of in accordance with the
customary procedures of Trustee.
The Class B Certificates and any beneficial interest in such
Class B Certificates may not be acquired (a) with the assets of an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (b) by a plan described in Section 4975(e)(1) of
the Code or (c) by any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity. By accepting and holding a Class B
Certificate or interest therein, the Holder thereof or Class B Certificate Owner
thereof shall be deemed to have represented and warranted that it is not subject
to the foregoing limitation.
The preceding provisions of this Section 5.3 notwithstanding,
Trustee shall not make and need not register any transfer or exchange of
Certificates for a period of fifteen (15) days preceding any Distribution Date
for any payment with respect to the Certificates.
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Section 5.4. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Class A Certificate or Class B Certificate
shall be surrendered to Trustee, or if Trustee shall receive evidence to its
satisfaction of the destruction, loss or theft of any Class A Certificate or
Class B Certificate and (b) there shall be delivered to Trustee such security or
indemnity as may be required to save Trustee harmless, then, in the absence of
notice that such Class A Certificate or Class B Certificate shall have been
acquired by a bona fide purchaser, Trustee shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Class A Certificate or Class B Certificate, a new Class A Certificate or
Class B Certificate of like tenor and denomination. In connection with the
issuance of any new Certificate under this Section 5.4, Trustee may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection herewith. Any replacement Certificate issued
pursuant to this Section 5.4 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 5.5. Persons Deemed Owners. Prior to due presentation
of a Certificate for registration of transfer, Trustee 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 4.5 and for all
other purposes, and Trustee shall not be bound by any notice to the contrary.
Section 5.6. Access to List of Holders' Names and Addresses.
Trustee shall furnish or cause to be furnished to Servicer, within fifteen days
after receipt by Trustee of a request therefor from Servicer in writing, in such
form as Servicer may reasonably require, a list of the names and addresses of
the Holders as of the most recent Record Date. If Definitive Certificates have
been issued, Trustee, upon written request of (a) three or more Holders or (b)
one or more Holders evidencing not less than 25% of the aggregate outstanding
principal balance of the Certificates, will, within five Business Days after the
receipt of such request, afford such Holders access during normal business hours
to the most current list of Holders for purposes of communicating with other
Holders with respect to their rights under the Agreement. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
Seller, Servicer or Trustee accountable by reason of the disclosure of such
Holder's name and address, regardless of the source from which such information
was derived.
Section 5.7. Maintenance of Office or Agency. Trustee shall
maintain, or cause to be maintained, at its expense, in _________, an office or
agency where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon Trustee in respect of the
Certificates and this Agreement may be served. Trustee initially designates its
office located at ________ for such purposes. Trustee shall give prompt written
notice to Servicer and to Holders of any change in the location of any such
office or agency.
Section 5.8. Book Entry Certificates. Upon original issuance,
the Class A Certificates and the Class B Certificates, other than the Class A
Certificate representing the
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residual amount of the Original Class A Certificate Balance and the Class B
Certificate representing the residual amount of the Original Class B Certificate
Balance, which shall be issued upon the written order of Seller, shall be issued
in the form of one or more typewritten Certificates representing the Book Entry
Certificates, to be delivered to the initial Clearing Agency, by, or on behalf
of, Seller. Such Certificates 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 will receive a Definitive Certificate representing such
Certificate Owner's interest in the Class A Certificates or the Class B
Certificates, as the case may be, except as provided in Section 5.10. Unless and
until definitive, fully registered Certificates ("Definitive Certificates") have
been issued to the Holders pursuant to Section 5.10:
(a) the provisions of this Section 5.8 shall be in
full force and effect;
(b) Seller, Servicer and Trustee may deal with the
Clearing Agency for all purposes (including the making of
distributions on the Certificates and the taking of actions by
the Holders) as the authorized representative of the
Certificate Owners;
(c) to the extent that the provisions of this Section
5.8 conflict with any other provisions of this Agreement, the
provisions of this Section 5.8 shall control;
(d) the rights of Certificate Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law, the rules, regulations
and procedures of the Clearing Agency and agreements between
such Certificate Owners and the Clearing Agency and all
references in this Agreement to actions by Holders 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
Holders shall refer to distributions, notices, reports and
statements to the Clearing Agency or its nominee, as
registered holder of the Certificates, as the case may be, for
distribution to Certificate Owners in accordance with the
rules, regulations and procedures of the Clearing Agency; and
(e) pursuant to the Depository Agreement, 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 or
their nominees.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Certificates evidencing specified percentages of the aggregate outstanding
principal balance of such Certificates, such direction or
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consent may be given by Certificate Owners having interests in the requisite
percentage, acting through the Clearing Agency.
Section 5.9. Notices to Clearing Agency. Whenever notice or
other communication to the Holders is required under this Agreement unless and
until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 5.10, Trustee shall give all such notices and communications
specified herein to be given to Holders to the Clearing Agency.
Section 5.10. Definitive Certificates. If (a) (i) Servicer
advises Trustee in writing that the Clearing Agency is no longer willing or able
properly to discharge its responsibilities under the Depository Agreement and
(ii) Trustee or Servicer is unable to locate a qualified successor, (b)
Servicer, at its option, advises Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency or (c) after the occurrence of
a Servicer Termination Event, Certificate Owners representing in the aggregate
not less than a majority of the aggregate outstanding principal balance of the
Certificates, advise Trustee and 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 Certificate Owners' best interests, then
Trustee shall notify the Clearing Agency which shall be responsible to notify
the Certificate Owners of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to Trustee by the Clearing Agency of the Certificates
registered in the name of the nominee of the Clearing Agency, accompanied by
re-registration instructions from the Clearing Agency for registration, Trustee
shall execute, on behalf of the Trust, authenticate and deliver Definitive
Certificates in accordance with such instructions. Seller shall arrange for, and
will bear all costs of, the printing and issuance of such Definitive
Certificates. Neither Seller, Servicer nor Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, Trustee shall recognize the Holders of the Definitive Certificates
as Holders hereunder.
ARTICLE VI. SELLER.
Section 6.1. Representations and Warranties of Seller. Seller
makes the following representations and warranties, on which Trustee relies in
accepting the Receivables and the other Trust Property in trust and executing
and authenticating the Certificates. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Receivables and the other Trust Property to the Trust.
(a) Organization and Good Standing. Seller has been
duly organized and is validly existing as a Delaware limited
liability company in good standing under the laws of the State
of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are
presently owned and such business is presently conducted and
had at all relevant times, and has, full
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power, authority and legal right to acquire, own and sell the
Receivables and the other Trust Property.
(b) Power and Authority. Seller has the power,
authority and legal right to execute and deliver this
Agreement and the Related Agreements to which it is a party
and to carry out their respective terms and to sell and assign
the property to be sold and assigned to and deposited with
Trustee as Trust Property; and the execution, delivery and
performance of this Agreement and the Related Agreements to
which it is a party have been duly authorized by Seller by all
necessary limited liability company action.
(c) No Consent Required. No approval, authorization,
consent, license or other order or action of, or filing or
registration with, any governmental authority, bureau or
agency is required in connection with the execution, delivery
or performance of this Agreement or the Related Agreements to
which it is a party or the consummation of the transactions
contemplated hereby or thereby, other than (i) as may be
required under the blue sky or securities laws of any State or
the Securities Act of 1933, as amended, and (ii) the filing of
UCC financing statements.
(d) Valid Sale; Binding Obligation. Seller intends
this Agreement to effect a valid sale, transfer, and
assignment of the Receivables and the other Trust Property
conveyed by Seller to the Trust hereunder, enforceable against
creditors of and purchasers from Seller; and each of this
Agreement and the Related Agreements to which it is a party
constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its respective
terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting
enforcement of the rights of creditors generally and to
equitable limitations on the availability of specific
remedies.
(e) No Violation. The execution, delivery and
performance by Seller of this Agreement and the Related
Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby will not conflict
with, result in any material breach of any of the terms and
provisions of, constitute (with or without notice or lapse of
time) a material default under or result in the creation or
imposition of any Lien upon any of its material properties
pursuant to the terms of, (i) the organic documents of Seller,
(ii) any material indenture, contract, lease, mortgage, deed
of trust or other instrument or agreement to which Seller is a
party or by which Seller is bound, or (iii) any law, order,
rule or regulation applicable to Seller of any federal or
state regulatory body, any court, administrative agency, or
other governmental instrumentality having jurisdiction over
Seller.
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(f) No Proceedings. There are no proceedings or
investigations pending, or, to the knowledge of Seller,
threatened, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality
having jurisdiction over Seller or its properties: (i)
asserting the invalidity of this Agreement or any Related
Agreement, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Related Agreement, (iii)
seeking any determination or ruling that might materially and
adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement or
any Related Agreement or (iv) that may materially and
adversely affect the federal or state income, excise,
franchise or similar tax attributes of the Certificates.
(g) Chief Executive Office. The chief executive
office of Seller is [_______________].
Section 6.2. [RESERVED]
Section 6.3. Merger or Consolidation of Seller; Assumption of
the Obligations of Seller. Any Person (a) into which Seller may be merged or
consolidated, (b) that may result from any merger, conversion or consolidation
to which Seller is a party, or (c) that may succeed by purchase and assumption
to all or substantially all of the business of Seller, where Seller in any of
the foregoing cases is not the surviving entity, which corporation or other
entity shall execute an agreement of assumption to perform every obligation of
Seller under this Agreement, shall be the successor to 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) Servicer shall have delivered to Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such merger,
conversion, consolidation or succession and such agreement of assumption comply
with this Section, and (y) Servicer shall have delivered to Trustee an Opinion
of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of Trustee in the Receivables, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to fully preserve and protect such interest. Seller shall
promptly inform Trustee and each Rating Agency of any such merger, conversion,
consolidation or purchase and assumption, where Seller is not the surviving
entity.
Section 6.4. Limitation on Liability of Seller and Others.
Seller and any director or officer or employee or agent of Seller may rely in
good faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement or any Related Agreement (provided that such reliance shall
not limit in any way Seller's obligations under Section 3.2). Seller shall not
be under any obligation to appear in, prosecute or defend any legal action that
shall not be
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incidental to its obligations under this Agreement, and that in its opinion may
involve it in any expense or liability.
Section 6.5. [RESERVED]
ARTICLE VII. SERVICER.
Section 7.1. Representations and Warranties of Servicer.
Servicer makes the following representations and warranties on which Trustee
relies in accepting the Receivables and the other Trust Property in trust and in
authenticating the Certificates. These representations are made as of the
Closing Date, but shall survive the sale, transfer and assignment of the
Receivables and the other Trust Property to the Trust.
(a) Organization and Good Standing. Servicer has been
duly organized and is validly existing as a national banking
association in good standing under the laws of the United
States, with the power and authority to own its properties and
to conduct its business as such properties are presently owned
and such business is presently conducted, and had at all
relevant times, and shall have, the power, authority and legal
right to service the Receivables and the other Trust Property.
(b) Due Qualification. 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.
(c) Power and Authority. Servicer has the power,
authority and legal right to execute and deliver this
Agreement and the Related Agreements to which it is a party
and to carry out their respective terms; and the execution,
delivery and performance of this Agreement and the Related
Agreements to which it is a party have been duly authorized by
Servicer by all necessary corporate action.
(d) No Consent Required. No approval, authorization,
consent, license or other order or action of, or filing or
registration with, any governmental authority, bureau or
agency is required in connection with the execution, delivery
or performance of this Agreement, the Related Agreements to
which it is a party or the consummation of the transactions
contemplated hereby or thereby, other than the filing of UCC
financing statements.
(e) Binding Obligation. Each of this Agreement and
the Related Agreements to which it is a party constitutes a
legal, valid and binding obligation of Servicer, enforceable
against Servicer in accordance with its respective terms,
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subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of
the rights of creditors of banks generally and to equitable
limitations on the availability of specific remedies.
(f) No Violation. The execution, delivery and
performance by Servicer of this Agreement and the Related
Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby will not conflict
with, result in any material breach of any of the terms and
provisions of, constitute (with or without notice or lapse of
time) a material default under, or result in the creation or
disposition of any Lien upon any of its material properties
pursuant to the terms of, (i) the articles of association or
bylaws of Servicer, (ii) any material indenture, contract,
lease, mortgage, deed of trust or other instrument or
agreement to which Servicer is a party or by which Servicer is
bound, or (iii) any law, order, rule or regulation applicable
to Servicer of any federal or state regulatory body, any
court, administrative agency, or other governmental
instrumentality having jurisdiction over Servicer.
(g) No Proceedings. There are no proceedings or
investigations pending, or, to Servicer's knowledge,
threatened, before any court, regulatory body, administrative
agency, or tribunal or other governmental instrumentality
having jurisdiction over Servicer or its properties: (i)
asserting the invalidity of this Agreement, any Related
Agreement or the Certificates, (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or any Related
Agreement, (iii) seeking any determination or ruling that
might materially and adversely affect the performance by
Servicer of its obligations under, or the validity or
enforceability of, this Agreement, any Related Agreement or
the Certificates, or (iv) that may materially and adversely
affect the federal or state income, excise, franchise or
similar tax attributes of the Certificates.
Section 7.2. Indemnities of Servicer. (a) Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by Servicer under this Agreement.
(b) Servicer shall indemnify, defend and hold
harmless Trustee, Seller, the Holders and any of the officers,
directors, employees and agents of Trustee or Seller from any
and all costs, expenses, losses, claims, damages and
liabilities (including reasonable attorneys' fees and
expenses) to the extent arising out of, or imposed upon any
such Person through, the gross negligence, willful misfeasance
or bad faith (other than errors in judgment) of Servicer in
the performance of its obligations and duties under this
Agreement or in the performance of the obligations and duties
of any subservicer under any subservicing agreement.
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(c) Servicer shall indemnify, defend and hold
harmless Trustee and its officers, directors, employees and
agents from and against any taxes that may at any time be
asserted against any such Person with respect to the
transactions contemplated in this Agreement or in the other
Related Agreements, including any sales, gross receipts,
general corporation, tangible or intangible personal property,
privilege, or license taxes, or any taxes of any kind which
may be asserted (but not including any Federal or other income
taxes arising out of transactions contemplated by this
Agreement and the other Related Agreements) against the Trust,
and costs and expenses in defending against the same.
(d) Servicer shall indemnify, defend and hold
harmless Trustee, Seller and the Holders or any of the
officers, directors, employees and agents of Trustee or Seller
from any and all costs, expenses, losses, claims, damages and
liabilities (including reasonable attorneys' fees and
expenses) to the extent arising out of or imposed upon any
such Person as a result of any compensation payable to any
subcustodian or subservicer (including any fees payable in
connection with the release of any Receivable File from the
custody of such subservicer or subcustodian or in connection
with the termination of the servicing activities of such
subservicer with respect to any Receivable) whether pursuant
to the terms of any subcustodian or subservicing agreement or
otherwise.
(e) Servicer shall indemnify, defend and hold
harmless Trustee, Seller and the Holders or any of the
directors, officers, employees and agents of Trustee and
Seller from and against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising out of
or resulting from the use, ownership, or operation by Servicer
or any Affiliate thereof of any Financed Vehicle.
Indemnification under this Section shall survive the resignation or removal of
Trustee and the termination of this Agreement and shall include reasonable fees
and expenses of counsel and other expenses of litigation. If Servicer shall have
made any indemnity payments pursuant to this Section and the Person to or on
behalf of whom such payments are made thereafter shall collect any of such
amounts from others, such Person shall promptly repay such amounts to Servicer,
without interest.
Section 7.3. Merger or Consolidation of Servicer; Assumption
of the Obligations of Servicer. Any corporation or other entity (a) into which
Servicer may be merged or consolidated, (b) that may result from any merger,
conversion, or consolidation to which Servicer is a party, (c) that may succeed
by purchase and assumption to all or substantially all of the business of
Servicer or (d) 50% of the voting stock of which is owned directly or indirectly
by [______], where, in the case of clauses (a), (b) and (c), Servicer is not the
surviving entity, which corporation or other entity in any of the foregoing
cases shall execute an agreement of
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assumption to perform every obligation of Servicer under this Agreement, shall
be the successor to Servicer under this Agreement without any further act on the
part of any of the parties to this Agreement; provided that, unless [______] is
the surviving party to such transaction (x) Servicer shall have delivered to
Trustee an Officer's Certificate and an Opinion of Counsel each stating that
such merger, conversion, consolidation or succession and such agreement of
assumption comply with this Section, and (y) Servicer shall have delivered to
Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements and amendments
thereto have been executed and filed that are necessary fully to preserve and
protect the interest of Trustee in the Receivables, and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to fully preserve and protect such interest. Servicer
shall promptly inform Trustee and each Rating Agency of any such merger,
conversion, consolidation or purchase and assumption where Servicer is not the
surviving entity.
Section 7.4. Limitation on Liability of Servicer and Others.
(a) Neither Servicer nor any of its directors, officers, employees or agents
shall be under any liability to the Trust or the Holders, except as provided
under this Agreement, for any action taken or for refraining from the taking of
any action by Servicer or any subservicer pursuant to this Agreement or for
errors in judgment; provided that this provision shall not protect Servicer or
any such Person against any liability that would otherwise be imposed by reason
of willful misfeasance, bad faith or gross negligence in the performance of
duties (except for errors in judgment) or by reason of reckless disregard of
obligations and duties under this Agreement. Servicer or any subservicer and any
of their respective directors, officers, employees or agents may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising under this Agreement.
(b) Except as provided in this Agreement, Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that shall be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided that Servicer may (but shall not be required to) undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the Related Agreements to protect the interests of the Holders
under this Agreement and the Related Agreements. In such event, the legal
expense and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Servicer.
Section 7.5. [______] Not To Resign as Servicer. Subject to
the provisions of Section 7.3, [______] hereby agrees not to resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon determination that the performance of its duties hereunder shall no
longer be permissible under applicable law or if such resignation is required by
regulatory authorities. Notice of any such determination permitting the
resignation of [______] as Servicer shall be communicated to Trustee at the
earliest practicable time (and, if such communication is not in writing, shall
be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
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delivered to Trustee concurrently with or promptly after such notice. No such
resignation shall become effective until the earlier of the date upon which
Trustee or a successor Servicer has assumed the responsibilities and obligations
of the resigning Servicer in accordance with Section 8.2 or the date upon which
any regulatory authority requires such resignation.
Section 7.6. Servicer May Own Certificates. Servicer, and any
Affiliate of Servicer, may, in its individual or any other capacity, become the
owner or pledgee of Certificates with the same rights as it would have if it
were not Servicer or an Affiliate thereof, except as otherwise provided in the
definition of "Holder", "Class A Holder" and "Class B Holder" in Section 1.1.
Certificates so owned by or pledged to Servicer or such Affiliate shall have an
equal and proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates, except as
otherwise provided in the definitions of "Class A Holder" and "Class B Holder".
Section 7.7. Existence. Subject to the provisions of Section
7.3, during the term of this Agreement, [______] will keep in full force and
effect its existence, rights and franchises as a [ ] under the laws of the
jurisdiction of its organization.
ARTICLE VIII. SERVICING TERMINATION.
Section 8.1. Servicer Termination Events. (a) Any one of the
following events shall constitute a "Servicer Termination Event":
(i) any failure by Servicer to deliver to Trustee a
Servicer's Report for any Collection Period, which
failure shall continue beyond the related Deposit
Date;
(ii) any failure by Servicer to deliver to any
Account or the Reserve Account any payment or deposit
required to be so delivered or paid under the terms
of the Certificates and this Agreement, or to direct
Trustee to make any required distribution from any
Account or the Reserve Account, which failure shall
continue unremedied for a period of five Business
Days after written notice is received from the
Trustee by Servicer or after discovery of such
failure by Servicer (or, in the case of a payment or
deposit to be made no later than a Deposit Date
immediately preceding a Distribution Date, the
failure to make such payment or deposit by such
Distribution Date);
(iii) any failure on the part of Servicer duly to
observe or to perform in any material respect any
other covenants or agreements set forth in the
Certificates or in this Agreement, which failure
shall (A) materially and adversely affect the rights
of Holders (which determination shall be made without
regard to whether funds are available to the Holders
pursuant to
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the Reserve Account) and (B) continue unremedied for
a period of 60 days after the date on which written
notice of such failure, requiring the same to be
remedied, shall have been given (1) to Servicer by
Trustee, or (2) to Trustee and Servicer by the
Holders of Certificates representing not less than
25% of the outstanding principal amount of the
Certificates (or for such longer period, not in
excess of 120 days, as may be reasonably necessary to
remedy such default; provided that such default is
capable of remedy within 120 days and Servicer
delivers an Officer's Certificate to Trustee to such
effect and to the effect that Servicer has commenced
or will promptly commence, and will diligently
pursue, all reasonable efforts to remedy such
default);
(iv) the entry of a decree or order by a court or
agency or supervisory authority of competent
jurisdiction for the appointment of a conservator,
receiver, liquidator or trustee for Servicer, Seller,
the Transferor, or any of their respective
successors, in any bankruptcy, receivership,
conservatorship, insolvency or similar proceedings,
or for the winding up or liquidation of its affairs,
and any such decree or order continues unstayed and
in effect for a period of 60 consecutive days; or
(v) the consent by Servicer, Seller, the Transferor,
or any of their respective successors, to the
appointment of a conservator, receiver, liquidator or
trustee in any bankruptcy, receivership,
conservatorship, insolvency or similar proceedings of
or relating to such Person or relating to
substantially all of its property, the admission in
writing by such Person of its inability to pay its
debts generally as they become due, the filing by
such Person of a petition to take advantage of any
applicable bankruptcy, receivership, conservatorship,
insolvency or similar statute, the making by such
Person of an assignment for the benefit of its
creditors or the voluntary suspension by such Person
of payment of its obligations.
Upon the occurrence of any Servicer Termination Event, and so long as a Servicer
Termination Event shall not have been remedied, either Trustee, or the Majority
Holders, by notice then given in writing to Servicer, may terminate all of the
rights and obligations of Servicer (other than the obligations set forth in
Section 7.2) under this Agreement. On or after the receipt by Servicer of such
written notice, all authority and power of Servicer under this Agreement,
whether with respect to the Certificates or the Trust Property or otherwise,
shall pass to and be vested in Trustee or such successor Servicer as may be
appointed under Section 8.2 pursuant to this Section 8.1; and thereupon Trustee
shall be authorized and empowered to execute and deliver, on behalf of Servicer,
as attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement of the Receivable Files or the Physical Damage
Insurance Policies, the certificates of title to the Financed Vehicles,
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or otherwise. Servicer shall cooperate with Trustee or any successor Servicer in
effecting the termination of its responsibilities and rights as Servicer under
this Agreement, including the transfer to Trustee or any successor Servicer for
administration of all cash amounts that are at the time held by Servicer for
deposit, shall have been deposited by Servicer in the Collection Account, or
thereafter shall be received with respect to a Receivable, all Receivable Files
and all information or documents that Trustee or such successor Servicer may
require. In addition, Servicer shall transfer its electronic records relating to
the Receivables to the successor Servicer in such electronic form as the
successor Servicer may reasonably request and shall transfer to the successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and at such times as the
successor Servicer shall reasonably request. All reasonable out-of-pocket costs
and expenses incurred by the successor Servicer in connection with the transfer
of servicing shall be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses.
(b) If any of the foregoing Servicer Termination
Events occur, Trustee shall have no obligation to notify
Holders or any other Person of such occurrence prior to the
continuance of such event through the end of any cure period
specified in Section 8.1(a).
Section 8.2. Trustee to Act; Appointment of Successor
Servicer. Upon Servicer's resignation pursuant to Section 7.5 or upon Servicer's
receipt of notice of termination as Servicer pursuant to Section 8.1, Trustee
shall be the successor in all respects to Servicer in its capacity as Servicer
under this Agreement, and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on Servicer by the terms and provisions
of this Agreement, except that Trustee, when acting as successor Servicer, shall
not be obligated to purchase Receivables pursuant to Section 3.7 unless the
obligation to repurchase arose after the date of the notice of termination given
to Servicer pursuant to Section 8.1, and neither Trustee nor any successor
Servicer shall be liable for any acts or omissions of the terminated Servicer or
for any breach by such Servicer of any of its representations or warranties
contained herein or in any related documents or agreements. As compensation
therefor, Trustee shall be entitled to the same Servicing Fees (whether payable
out of the Collection Account or otherwise) and Supplemental Servicing Fees as
Servicer would have been entitled to under this Agreement if no such notice of
termination or resignation had been given. Notwithstanding the above, Trustee
may appoint, or petition a court of competent jurisdiction to appoint, an
Eligible Servicer as the successor to the terminated Servicer under this
Agreement; provided that Trustee shall continue to be the successor to Servicer
until another successor Servicer shall have assumed the responsibilities and
obligations of Servicer. In connection with such appointment, Trustee may make
such arrangements for the compensation of such successor Servicer out of
payments on Receivables as it and such successor shall agree, which shall in no
event be greater than the Servicing Fees and Supplemental Servicing Fees payable
to [______] as Servicer hereunder. Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. No Servicer shall resign or be relieved of its duties
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under this Agreement until a newly appointed Servicer shall have assumed the
responsibilities and obligations of the terminated Servicer under this
Agreement.
Section 8.3. Effect of Servicing Transfer. (a) After the
transfer of servicing hereunder, Trustee or successor Servicer shall notify
Obligors to make directly to the successor Servicer payments that are due under
the Receivables after the effective date of such transfer.
(b) Except as provided in Sections 7.2 and 9.8 after
the transfer of servicing hereunder, the predecessor Servicer
shall have no further obligations with respect to the
management, administration, servicing, custody or collection
of the Receivables and the successor Servicer shall have all
of such obligations, except that the predecessor Servicer will
transmit or cause to be transmitted directly to the successor
Servicer for its own account, promptly on receipt and in the
same form in which received, any amounts held by the
predecessor Servicer (properly endorsed where required for the
successor Servicer to collect any such items) received as
payments upon or otherwise in connection with the Receivables
and the predecessor Servicer shall continue to cooperate with
the successor Servicer by providing information and in the
enforcement of the Dealer Agreements and the Physical Damage
Insurance Policies.
(c) A transfer of servicing hereunder shall not
affect the rights and duties of the parties hereunder other
than those relating to the management, administration,
servicing, custody or collection of the Receivables and the
other Trust Property. The successor Servicer shall, upon its
appointment pursuant to Section 8.2 and as part of its duties
and responsibilities under this Agreement, promptly take all
action it deems necessary or appropriate so that the
predecessor Servicer (in whatever capacity) is paid or
reimbursed all amounts it is entitled to receive under this
Agreement on each Distribution Date subsequent to the date on
which it is terminated as Servicer hereunder. Without limiting
the generality of the foregoing, the predecessor Servicer will
be entitled to receive all accrued and unpaid Servicing Fees
and Supplemental Servicing Fees through and including the
effective date of the termination of the predecessor Servicer.
(d) Any successor Servicer shall provide Seller with
access to the Receivable Files and to the successor Servicer's
records (whether written or automated) with respect to the
Receivable Files. Such access shall be afforded without
charge, but only upon reasonable request and during normal
business hours at the offices of the successor Servicer.
Nothing in this Section shall affect the obligation of the
successor Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors, and the
failure of successor Servicer to provide access to information
as a result of such obligation shall not constitute a breach
of this Section.
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Section 8.4. Notification to Holders. Upon any notice of a
Servicer Termination Event or upon any termination of, or appointment of a
successor to, Servicer pursuant to this Article VIII, Trustee shall give prompt
written notice thereof to Holders at their respective addresses of record, and
to each Rating Agency.
Section 8.5. Waiver of Past Servicer Termination Events. The
Majority Holders may, on behalf of all Holders of Certificates, waive any
Servicer Termination Event hereunder and its consequences, except an event
resulting from the failure to make any required deposits or payments to the
Collection Account in accordance with this Agreement. Upon any such waiver of a
past Servicer Termination Event, such event shall cease to exist and shall be
deemed to have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other event or impair any right arising
therefrom, except to the extent expressly so waived.
Section 8.6. Transfer of Accounts. Notwithstanding the
provisions of Section 8.1, if any of the Accounts or the Reserve Account is
maintained with Servicer or an Affiliate of Servicer and a Servicer Termination
Event shall occur and be continuing, Servicer shall promptly, and in any event
within five Business Days, give notice to Trustee of such Servicer Termination
Event, and Trustee, within _____ days after the receipt of such notice, shall
establish new Eligible Deposit Accounts conforming with the requirements of this
Agreement and promptly shall transfer all funds in any such Accounts or the
Reserve Account to such new Eligible Deposit Accounts.
ARTICLE IX. TRUSTEE.
Section 9.1. Acceptance by Trustee. Trustee hereby
acknowledges its acceptance of all right, title and interest in and to the
Receivables and the other Trust Property conveyed by Seller pursuant to this
Agreement and hereby declares that Trustee holds and shall hold such right,
title and interest, upon the trust set forth in this Agreement.
Section 9.2. Duties of Trustee. (a) Trustee, both prior to and
after the curing of a Servicer Termination Event, undertakes to perform only
such duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against Trustee. If a
Servicer Termination Event, of which an Authorized Officer of Trustee has actual
knowledge, shall have occurred and shall not have been cured (the appointment of
a successor Servicer (including Trustee) to constitute a cure for the purposes
of this Article), 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 would exercise or use under the circumstances in the
conduct of his own affairs; provided that if Trustee assumes the duties of
Servicer pursuant to Section 8.2, Trustee in performing such duties shall use
the degree of skill and attention required by Section 3.1.
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(b) Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents,
orders, or other instruments furnished to Trustee that are
required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed
to relieve Trustee from liability for its own negligent
action, its own negligent failure to act, its own willful
misfeasance or its own bad faith; provided that:
(i) Prior to the occurrence of a Servicer Termination
Event, and after the curing of all such Servicer
Termination Events that may have occurred, the duties
and obligations of Trustee shall be determined solely
by the express provisions of this Agreement; Trustee
shall not be liable except for the performance of
such duties and obligations as are specifically set
forth in this Agreement; no implied covenants or
obligations shall be read into this Agreement against
Trustee; the permissible right of Trustee (solely in
its capacity as such) to do things enumerated in this
Agreement shall not be construed as a duty; and, in
the absence of bad faith on the part of Trustee, or
manifest error, Trustee (solely in its capacity as
such) may conclusively rely on the truth of the
statements and the correctness of the opinions
expressed in any certificates or opinions furnished
to Trustee and conforming to the requirements of this
Agreement;
(ii) Trustee shall not be personally liable for an
error of judgment made in good faith by an officer of
Trustee, unless it shall be proved that Trustee shall
have been negligent in performing its duties in
accordance with the terms of this Agreement; and
(iii) Trustee shall not be personally liable with
respect to any action taken, suffered, or omitted to
be taken in good faith in accordance with the
direction of the Majority Holders, as set forth in
Section 8.1, relating to the time, method and place
of conducting any proceeding or any remedy available
to Trustee, or exercising any trust or power
conferred upon Trustee, under this Agreement.
(d) Except for the willful misfeasance, bad faith or
negligence of Trustee, Trustee shall not be required to expend
or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that the repayment of
such funds or indemnity satisfactory to it 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 Trustee to
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perform, or be responsible for the manner of performance of,
any of the obligations of Servicer under this Agreement except
during such time, if any, as Trustee shall be the successor
to, and be vested with the rights, duties, powers and
privileges of, Servicer in accordance with the terms of this
Agreement.
(e) Except for actions expressly authorized by this
Agreement, Trustee shall take no action reasonably likely to
impair the security interests created or existing under any
Receivable or Financed Vehicle or to impair the value of any
Receivable or Financed Vehicle.
(f) Trustee shall have no power to vary the corpus of
the Trust including (i) accepting any substitute obligation
for a Receivable initially assigned to Trustee under this
Agreement, (ii) adding any other investment, obligation or
security, or (iii) withdrawing any Receivable, except for a
withdrawal permitted under this Agreement.
Section 9.3. Trustee's Certificate. As soon as practicable
after each Deposit Date on which Receivables shall be assigned to Servicer
pursuant to Section 2.4, 3.7 or 10.2, as applicable, Trustee shall execute a
certificate, prepared by Servicer, including its date and the date of the
Agreement, and accompanied by a copy of Servicer's Report for the related
Collection Period. Trustee's certificate shall operate, as of such Deposit Date,
as an assignment pursuant to Section 9.4.
Section 9.4. Trustee's Assignment of Purchased Receivables.
With respect to all Receivables repurchased by Servicer pursuant to Section 2.4
or Section 10.2, or purchased by Servicer pursuant to Section 3.7 or Section
10.2, Trustee shall assign, without recourse, representation or warranty, to
Servicer, all of Trustee's right, title and interest in and to such Receivables,
and all security and documents and all other Trust Property conveyed pursuant to
Section 2.1 with respect to such Receivables. Such assignment shall be a sale
and assignment outright, and not for security. If, in any enforcement suit or
legal proceeding, it is held that Servicer, may not enforce any such Receivable
on the ground that it shall not be a real party in interest or a holder entitled
to enforce the Receivable, Trustee shall, at the expense of Servicer, take such
steps as Servicer, deems necessary to enforce the Receivable, including bringing
suit in Trustee's name or the names of the Holders.
Section 9.5. Certain Matters Affecting Trustee. Except as
otherwise provided in Section 9.2:
(a) Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate of auditors or accountants or any
other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond,
note or other paper or document
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believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(b) Trustee may consult with counsel knowledgeable in
the area 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 written Opinion of Counsel a copy
of which shall be provided to Seller and Servicer.
(c) 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 Holders pursuant to the
provisions of this Agreement, unless such Holders shall have
offered to Trustee security or indemnity satisfactory to
Trustee against the costs, expenses, and liabilities that may
be incurred therein or thereby. Nothing contained in this
Agreement, however, shall relieve Trustee of the obligations,
upon the occurrence of a Servicer Termination Event that is
not timely cured or waived pursuant to Section 8.5, 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 would exercise or use under
the circumstances in the conduct of his own affairs; provided
that if Trustee assumes the duties of Servicer pursuant to
Section 8.2, Trustee in performing such duties shall use the
degree of skill and attention required by Section 3.1.
(d) Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Agreement.
(e) Prior to the occurrence of a Servicer Termination
Event and after the curing of all Servicer Termination Events
that may have occurred, Trustee shall not be bound to make any
investigation into the facts of any matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, direction, order, approval,
bond, note or other paper or document, unless requested in
writing so to do by the Majority Holders; provided that if the
payment within a reasonable time to Trustee of the costs,
expenses, or liabilities likely to be incurred by it in the
making of an investigation requested by the Holders is, in the
opinion of Trustee, not reasonably assured to Trustee by the
security afforded to it by the terms of this Agreement,
Trustee may require indemnity satisfactory to it against such
cost, expense, or liability as a condition to so proceeding.
The reasonable expense of every such examination shall be paid
by Servicer, or, if paid by Trustee, shall be reimbursed by
Servicer upon demand. Nothing in this clause (e) shall affect
the obligation of Servicer to observe any
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applicable law prohibiting disclosure of information regarding
the Obligors; provided further, that Trustee shall be entitled
to make such further inquiry or investigation into such facts
or matter as it may reasonably see fit, and if Trustee shall
determine to make such further inquiry or investigation it
shall be entitled to examine the books and records of
Servicer, personally or by agent or attorney, at the sole cost
and expense of Servicer.
(f) Trustee may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either
directly or by or through agents, attorneys, nominees or a
custodian, and shall not be liable for the acts of such
agents, attorney, nominees or custodians except for (i) acts
of ________ or any successor agent carrying out Trustee's
obligations with respect to the preparation of Servicer
Reports and (ii) acts of any other agent, attorney, nominee or
custodian if (A) Trustee has not acted with due care in their
appointment or (B) Seller has not consented to their
appointment.
(g) Trustee shall not be required to make any initial
or periodic examination of any documents or records related to
the Receivables or Financed Vehicles for the purpose of
establishing the presence or absence of defects, the
compliance by Seller with its representations and warranties
or for any other purpose.
(h) Trustee shall not be construed to be a guarantor
of the performance of Servicer, nor shall Trustee have any
duty to monitor the performance of Servicer other than as
expressly stated in this Agreement.
(i) Trustee shall not be required to take notice or
be deemed to have notice of any Servicer Termination Event
hereunder, except a Servicer Termination Event under Section
8.1(a)(i), or (ii), unless Trustee shall be specifically
notified in writing of such Servicer Termination Event by
Servicer, Seller or any Holder. All notices or other
instruments required by this Agreement to be delivered to
Trustee shall be delivered at the Corporate Trust Office and,
in the absence of such notice so delivered, Trustee may
conclusively assume there is no Servicer Termination Event
except as aforesaid.
Section 9.6. Trustee Not Liable for Certificates or
Receivables. Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as expressly provided herein,
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than Trustee's execution of, and the
certificate of authentication on, the Certificates), or of any Receivable or
related document, or for the validity of the execution by Seller and Servicer of
this Agreement or of any supplements hereto or instruments of further assurance,
or for the sufficiency of the Trust Property hereunder, and
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Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreements on the part of Servicer
under this Agreement except as herein set forth; but Trustee may require
Servicer to provide full information and advice as to the performance of the
aforesaid covenants, condition and agreements. Trustee (solely in its capacity
as such) shall have no obligation to perform any of the duties of Servicer,
except as explicitly set forth in this Agreement. Trustee shall have no
liability in connection with compliance of Servicer with statutory or regulatory
requirements to the Receivables. Trustee shall not make or be deemed to have
made any representations or warranties with respect to the Receivables or the
validity or sufficiency of any assignment of the Receivables to the Trust or
Trustee. Trustee (solely in its capacity as such) shall at no time have any
responsibility or liability for, or with respect to, the legality, validity or
enforceability of any security interest in any Financed Vehicle or (prior to the
time, if any, that Servicer is terminated as custodian hereunder) any
Receivable, or the perfection and priority of such a security interest or the
maintenance of any such perfection and priority, the efficacy of the Trust or
its ability to generate funds sufficient to provide for the payments to be
distributed to Holders under this Agreement, the existence, condition, location,
and ownership of any Financed Vehicle, the existence and enforceability of the
Insurance Policies, 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 Seller 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 Trustee's
receipt of notice or other discovery of any noncompliance therewith or any
breach thereof, any investment of monies by Servicer or any loss resulting
therefrom (it being understood that Trustee shall remain responsible for any
Trust Property that it may hold), the acts or omissions of Seller, Servicer, or
any Obligor, any action of Servicer taken in the name of Trustee, or any action
by Trustee taken at the instruction, of Servicer (provided that such instruction
is not in express violation of the terms and provisions of this Agreement);
provided that the foregoing shall not relieve Trustee of its obligation to
perform its duties under this Agreement. Except with respect to a claim based on
the failure of Trustee to perform its duties under this Agreement (whether in
its capacity as Trustee or as successor Servicer) or based on Trustee's willful
misconduct, negligence, or bad faith, or based on Trustee's breach of a
representation and warranty contained in Section 9.14, no recourse shall be had
to Trustee (whether in its individual capacity or as Trustee) for any claim
based on any provision of this Agreement, the Certificates, or any Receivable or
assignment thereof against Trustee in its individual capacity; Trustee shall not
have any personal obligation, liability, or duty whatsoever to any Holder or any
other Person with respect to any such claim. Trustee shall not be accountable
for the use or application by Seller of the proceeds of such Certificates, or
for the use or application of any funds paid to Servicer in respect of the
Receivables prior to the time such amounts are deposited in the Collection
Account (whether or not the Collection Account is maintained with Trustee).
Trustee shall have no liability for any losses from the investment or
reinvestment in Eligible Investments made in accordance with Section 4.1.
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Section 9.7. Trustee May Own Certificates. 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 9.8. Trustee's Fees and Expenses. Servicer agrees to
pay to Trustee, and Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts created by this Agreement and in the exercise and performance of any
of the powers and duties under this Agreement as Trustee, and Servicer shall pay
or reimburse Trustee upon its request for all reasonable expenses (including
expenses incurred in connection with notices or other communications to
Holders), disbursements and advances (including the reasonable compensation and
the reasonable expenses and disbursements of its counsel and of all persons not
regularly in its employ) incurred or made by Trustee in accordance with any of
the provisions of this Agreement (including the reasonable fees and expenses of
its agents, any co-trustee and counsel) or in defense of any action brought
against it in connection with this Agreement except any such expense,
disbursement or advance as may arise from its negligence, willful misfeasance,
or bad faith. Servicer's covenant to pay the expenses, disbursements and
advances provided for in the preceding sentence shall survive the termination of
this Agreement.
Section 9.9. Eligibility Requirements for Trustee. Trustee
shall at all times be organized and doing business under the banking laws of the
United States or of any state thereof, shall be authorized under such laws to
exercise corporate trust powers, shall have a consolidated net worth of at least
$50,000,000 and shall be subject to supervision or examination by federal or
state banking authorities. If Trustee 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 9.9,
the consolidated net worth of such Trustee shall be deemed to be its
consolidated capital and surplus as set forth in its most recent consolidated
report of condition so published. In case at any time Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.9, Trustee shall
resign immediately in the manner and with the effect specified in Section 9.10.
Section 9.10. Resignation or Removal of Trustee. (a) Trustee
may at any time resign and be discharged from the trusts hereby created by
giving 30 days' prior written notice thereof to Servicer. Upon receiving such
notice of resignation, Servicer shall 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; provided, however, that such right to appoint or to
petition for the appointment of any such successor Trustee shall in no event
relieve the resigning Trustee from any obligations otherwise imposed on it under
this Agreement and the Related Agreements until such successor Trustee has in
fact assumed such appointment.
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(b) If at any time Trustee shall cease to be eligible
in accordance with the provisions of Section 9.9 and shall
fail to resign after written request therefor by Servicer, or
if at any time Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver,
conservator or liquidator of Trustee or of its property shall
be appointed, or any public officer shall take charge or
control of Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then
Servicer may remove Trustee. If Trustee is removed under the
authority of the immediately preceding sentence, Servicer
shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall
be delivered to Trustee so removed, the successor Trustee, the
Holders at their respective addresses of record and the Rating
Agencies.
(c) Any resignation or removal of Trustee and
appointment of a successor Trustee pursuant to any of the
provisions of this Section 9.10 shall not become effective
until acceptance of appointment by the successor Trustee
pursuant to Section 9.11.
(d) The respective obligations of Seller and Servicer
described in this Agreement shall survive the removal or
resignation of Trustee as provided in this Agreement.
Section 9.11. Successor Trustee. (a) Any successor Trustee
appointed pursuant to Section 9.10 shall execute, acknowledge, and deliver to
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 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 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.
(b) No successor Trustee shall accept appointment as
provided in this Section 9.11 unless at the time of such
acceptance such successor Trustee shall be eligible pursuant
to Section 9.9.
(c) Upon acceptance of appointment by a successor
Trustee pursuant to this Section 9.11, Servicer shall mail
notice of such acceptance by the successor Trustee under this
Agreement to all Holders at their respective addresses of
record and to the Rating Agencies. If Servicer shall fail to
mail such notice within 10
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days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at
the expense of Servicer.
(d) No predecessor Trustee shall be liable for the
acts or omissions of any successor Trustee.
Section 9.12. Merger or Consolidation of Trustee; Assumption
of Obligations of Trustee. Any corporation or banking association which is
eligible to be a successor Trustee under Section 9.9 (a) into which Trustee may
be merged or consolidated, (b) that may result from any merger, conversion or
consolidation to which Trustee shall be a party, or (c) that may succeed by
purchase and assumption to the business of Trustee, where Trustee is not the
surviving entity, which corporation or banking association executes an agreement
of assumption to perform every obligation of Trustee under this Agreement, shall
be the successor of Trustee hereunder, 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. Trustee shall promptly notify Servicer
and each Rating Agency of any such merger, conversion, consolidation or purchase
and assumption where Trustee is not the surviving entity.
Section 9.13. Appointment of Co-Trustee or Separate Trustee.
(a) 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 Property or any Financed Vehicle may at the time be located,
Servicer and Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by Trustee to
act as co-trustee, jointly with 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 Holders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 9.13, such
powers, duties, obligations, rights, and trusts as Servicer and Trustee may
consider necessary or desirable. If Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case a Servicer Termination Event shall have occurred and be continuing, 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 9.9 and no notice to Holders of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 9.11. Notwithstanding the appointment of a co-trustee or separate
trustee hereunder, Trustee shall not be relieved of any of its obligations under
this Agreement.
(b) Each separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject to
the following provisions and conditions:
(i) All rights, powers, duties, and obligations
conferred or imposed upon Trustee shall be conferred
upon and exercised or performed by 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
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without 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 Servicer under this Agreement), 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 Property 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 Trustee.
(ii) No trustee under this Agreement shall be
personally liable by reason of any act or omission of
any other trustee under this Agreement.
(iii) Servicer and Trustee acting jointly may at any
time accept the resignation of or remove any separate
trustee or co-trustee.
(c) Any notice, request or other writing given to
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 in
particular to the provisions of this Article. Each separate
trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly
with 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, Trustee. Each such instrument shall be filed
with Trustee and a copy thereof given to Servicer.
(d) Any separate trustee or co-trustee may, at any
time, appoint 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 Trustee, to the extent
permitted by law, without the appointment of a new or
successor trustee. Trustee shall promptly notify Servicer and
each Rating Agency of any appointment made pursuant to this
Section 9.13.
Section 9.14. Representations and Warranties of Trustee.
Trustee makes the following representations and warranties on which Seller,
Servicer, and Holders may rely:
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(a) Organization and Good Standing. Trustee is a
[____________________] duly organized, validly existing, and
in good standing under the laws of ____________.
(b) Power and Authority. Trustee has full power,
authority and legal right to execute, deliver, and perform
this Agreement and the Related Agreements and has taken all
necessary action to authorize the execution, delivery, and
performance by it of this Agreement and the Related Agreements
to which it is a party.
(c) Enforceability. This Agreement and the Related
Agreements to which it is a party have been duly executed and
delivered by Trustee and this Agreement and such Related
Agreements constitute legal, valid and binding obligations of
Trustee enforceable against Trustee in accordance with their
respective terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights generally and
except as such enforceability may be limited by equitable
limitations on the availability of specific remedies.
(d) No Consent Required. No approval, authorization,
consent, license or other order or action of, or filing or
registration with, any governmental authority, bureau or
agency is required in connection with the execution, delivery
or performance by Trustee of this Agreement, the Related
Agreements or the consummation of the transactions
contemplated hereby or thereby.
(e) No Violation. The execution, delivery and
performance by Trustee of this Agreement and the Related
Agreements and the consummation of the transactions
contemplated hereby and thereby will not conflict with, result
in any breach of the terms and provisions of, constitute (with
or without notice or lapse of time) a default under, or result
in the creation or disposition of any Lien upon any of its
properties pursuant to the terms of (i) the articles of
association or by- laws of Trustee, (ii) any indenture,
contract, lease, mortgage, deed of trust or other instrument
or agreement to which Trustee is a party or by which Trustee
is bound or to which any of its properties are subject, or
(iii) any law, order, rule or regulation applicable to Trustee
or its properties of any federal or state regulatory body, any
court, administrative agency or other governmental
instrumentality having jurisdiction over Trustee or any of its
properties.
Section 9.15. Reports by Trustee. Trustee shall provide to any
Holder or Certificate Owner who so requests in writing (addressed to the
Corporate Trust Office) a copy of any Servicer's Report, the annual statement
described in Section 3.10, and the annual accountant's examination described in
Section 3.11. Trustee may require any Holder or
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Certificate Owner requesting such report to pay a reasonable sum to cover the
cost of Trustee's complying with such request.
Section 9.16. Tax Returns. Servicer shall prepare or shall
cause to be prepared any tax returns on Form 1065 (or other applicable form)
required to be filed by the Trust and shall remit such returns to Trustee for
signature at least five days before such returns are due to be filed. Trustee,
upon request, will furnish Servicer with all such information actually known to
an Authorized Officer of Trustee as may be reasonably required in connection
with the preparation of all tax returns of the Trust, and shall, upon request,
execute such returns. Servicer shall prepare the tax returns of the Trust in
accordance with the Code and any regulations (including, to the extent
applicable by their terms, proposed regulations) thereunder.
Section 9.17. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by Trustee without the possession of
any of the Certificates or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by Trustee shall be brought in its
own name as trustee. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
Trustee, its agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been obtained.
ARTICLE X. TERMINATION.
Section 10.1. Termination of the Trust. (a) The Trust, and the
respective obligations and responsibilities of Seller, Servicer and Trustee
hereunder, shall terminate (except as otherwise expressly provided herein) upon
the earliest of: (i) the Distribution Date next succeeding the purchase by
Servicer at its option, pursuant to Section 10.2, of the Receivables (other than
Defaulted Receivables) remaining in the Trust, (ii) the payment to Holders of
all amounts required to be paid to them pursuant to this Agreement or (iii) the
Distribution Date next succeeding the month which is six months after the
maturity or the liquidation of the last Receivable held in the Trust and the
disposition of any amounts received upon liquidation of any property remaining
in the Trust; provided 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 living on the date of this Agreement of ▇▇▇▇ ▇▇▇▇▇▇▇
of the Commonwealth of Massachusetts. Servicer shall promptly notify Trustee of
any prospective termination pursuant to this Section 10.1.
(b) Notice of any termination, specifying the
Distribution Date upon which the Holders may surrender the
Certificates to Trustee for payment of the final distribution
and cancellation, shall be given promptly by Trustee by letter
to Holders of record and the Rating Agencies mailed not
earlier than the 15th day and not later than the 25th day of
the month next preceding the specified Distribution Date
stating the amount of any such final payment and that the
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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 Trustee therein
specified. Upon presentation and surrender of the
Certificates, Trustee shall cause to be distributed to Holders
amounts distributable on such Distribution Date pursuant to
Section 4.5. Amounts remaining in the Trust after
distribution, or after setting aside all funds required for
distribution, to the Holders shall be distributed to the
Transferor.
(c) In the event that all of the Holders shall not
surrender their Certificates for cancellation within six
months after the date specified in the above-mentioned written
notice, Trustee shall give a second written notice to the
remaining Holders to surrender their Certificates for
cancellation and receive the final distribution with respect
thereto. Trustee shall after giving such notice to deliver or
cause to be delivered to Servicer the Certificate Register. If
within one year after the second notice all the Certificates
shall not have been surrendered for cancellation, Servicer may
take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Holders 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 be distributed by
Trustee to the Transferor.
Section 10.2. Optional Purchase of All Receivables. If the
Pool Factor shall be .0500000 or less as of the last day of any Collection
Period, Servicer shall have the option to purchase the remaining Trust Property
on any Distribution Date occurring in a subsequent Collection Period. To
exercise such option, Servicer shall deposit the aggregate Purchase Amount for
the remaining Receivables (other than Defaulted Receivables) into the Collection
Account on the Deposit Date occurring in the month in which such repurchase is
to be effected. The payment shall be made in the manner specified in Section
4.4, and shall be distributed pursuant to Section 4.5. Upon such payment
Servicer shall succeed to and own all interests in and to the Trust Property
(subject to the rights of the Holders to receive a final distribution on the
related Distribution Date).
ARTICLE XI. MISCELLANEOUS PROVISIONS.
Section 11.1. Amendment. (a) This Agreement may be amended by
Seller, Servicer and Trustee, without the consent of any of the Holders, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or modifying in any manner the rights of the
Holders; provided that such action shall not, as evidenced by an Opinion of
Counsel to Seller delivered to Trustee, materially and adversely affect the
interests of any Holder.
(b) This Agreement may be amended by Seller, Servicer
and Trustee without the consent of any of the Holders (i) to
add, modify or eliminate such
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provisions as may be necessary or advisable in order to enable
all or a portion of the Trust to qualify as, and to permit an
election to be made to cause all or a portion of the Trust to
be treated as, a "financial asset securitization investment
trust" as described in the provisions of the "Small Business
Job Protection Act of 1996," or to enable all or a portion of
the Trust to qualify and an election to be made for similar
treatment under such comparable subsequent federal income tax
provisions as may ultimately be enacted into law, and (ii) in
connection with any such election, to modify or eliminate
existing provisions set forth in this Agreement relating to
the intended federal income tax treatment of the Certificates
and the Trust in the absence of the election; it being a
condition to any such amendment that each Rating Agency will
have notified the Seller, the Servicer and the Trustee in
writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Certificates with
respect to which it is a Rating Agency.
(c) This Agreement may be amended by Seller, Servicer
and Trustee without the consent of any of the Holders to add,
modify or eliminate such provisions as may be necessary or
advisable in order to enable (i) the transfer to the Trust of
all or any portion of the Receivables to be derecognized under
generally accepted accounting principles ("GAAP") by Seller to
the Trust, (ii) the Trust to avoid becoming a member of
Seller's consolidated group under GAAP; or (iii) the Seller,
the Transferor or any of their Affiliates to otherwise comply
with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle; it being a
condition to any such amendment that each Rating Agency will
have notified the Seller, the Servicer and the Trustee in
writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Certificates with
respect to which it is a Rating Agency.
(d) This Agreement may also be amended from time to
time by Seller, Servicer and Trustee, with the consent of the
Majority Holders, 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; provided that no such amendment shall (i)
increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments on Receivables
or distributions that shall be required to be made on any
Certificate without the consent of all adversely affected
Holders, (ii) reduce the percentage of the aggregate
outstanding principal balance of the Certificates, the Holders
of which are required to consent to any such amendment,
without the consent of all Holders, (iii) materially and
adversely affect the interests of either the Class A Holders
or the Class B Holders without the consent of the Holders of
Class A Certificates or Class B Certificates, as the case may
be, evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates or
the Class B Certificates, as the case may be, or (iv) cause
either
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Rating Agency to downgrade or withdraw its rating of the Class
A Certificates or the Class B Certificates without the consent
of Holders of Class A Certificates or Class B Certificates, as
the case may be, evidencing more than 66 2/3% of the aggregate
outstanding principal balance of the Class A Certificates or
the Class B Certificates, as the case may be. Promptly after
the execution of any such amendment or consent, Trustee shall
furnish written notification of the substance of such
amendment or consent to each Holder.
(e) It shall not be necessary for the consent of
Holders pursuant to this Section 11.1 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
Holders shall be subject to such reasonable requirements as
Trustee may prescribe.
(f) Notice of any amendment of this Agreement shall
be sent by Servicer to each Rating Agency, at such address as
such Rating Agency may from time to time specify in writing.
(g) In connection with any amendment pursuant to this
Section 11.1 Trustee shall be entitled to receive an Opinion
of Counsel to the effect that such amendment is authorized or
permitted by the Agreement.
Section 11.2. Protection of Title to Trust Property. (a)
Servicer shall execute and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect the
interest of the Holders and Trustee under this Agreement in the Trust Property
and in the proceeds thereof. Servicer shall deliver (or cause to be delivered)
to Trustee file-stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing. If Servicer fails to
perform its obligations under this subsection, Trustee may (but shall not be
obligated to) do so, at the expense of Servicer.
(b) Neither Seller nor 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 Servicer in accordance with
subsection (a) misleading within the meaning of the UCC,
unless it shall have given Trustee at least 60 days' prior
written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing
statements or continuation statements.
(c) Seller and Servicer shall give Trustee at least
60 days' prior written notice of any relocation of its
principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing
of any
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amendment of any previously filed financing or continuation
statement or of any new financing statement. Seller and
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) Servicer shall maintain accounts and records as
to each Receivable accurately and in sufficient detail to
permit (i) the reader thereof to know at any time the status
of such Receivable, including payments and recoveries made and
payments owing (and the nature of each), and (ii)
reconciliation between payments or recoveries on (or with
respect to) each Receivable and the amounts from time to time
deposited in the Collection Account in respect of such
Receivable.
(e) Servicer shall maintain its computer systems so
that, from and after the time of sale under this Agreement of
the Receivables to Trustee, Servicer's master computer records
(including archives) that shall refer to a Receivable indicate
clearly that such Receivable is owned by the Trust. Indication
of the Trust's ownership of a Receivable shall be deleted from
or modified on Servicer's computer systems when, and only
when, the Receivable shall be paid or shall become a Purchased
Receivable.
(f) If at any ▇▇▇▇ ▇▇▇▇▇▇, the Transferor or Servicer
shall propose to sell, grant a security interest in or
otherwise transfer any interest in motor vehicle loans and/or
retail installment sales contracts to any prospective
purchaser, lender or other transferee, Seller, Transferor or
Servicer, as the case may be, shall give to such prospective
purchaser, lender or other transferee computer tapes, records
or printouts (including any restored from archives) that, if
they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and
is owned by the Trust.
(g) Upon request, Servicer, at its expense, shall
furnish to Trustee, within thirty days, a list of all
Receivables then held as part of the Trust, together with a
reconciliation of such list to each Schedule of Receivables
and to each of Servicer's Reports furnished pursuant to
Section 3.9 indicating removal of Receivables from the Trust.
(h) Servicer shall deliver to Trustee upon the
Closing Date, and upon the execution and delivery of each
amendment, if any, of this Agreement an Opinion of Counsel to
Servicer either (i) stating that, in the opinion of such
counsel, no filings or other action, other than the filings
required in the appropriate filing offices as described in
such opinion, are necessary to perfect and maintain (A) the
security interest of Trustee in the Financed Vehicles, subject
to the exceptions stated therein, and (B) the interest of
Trustee in the Receivables
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and the proceeds thereof against third parties, subject to the
exceptions stated therein, and reciting the details of such
filings or referring to prior Opinions of Counsel in which
such details are given, or (ii) stating that, in the opinion
of such counsel, no such action shall be necessary to perfect
or complete the perfected status of such interest.
(i) Servicer shall permit Trustee and its agents, at
the expense of Trustee (except after a Servicer Termination
Event, in which case such cost will be at the expense of
Servicer), at any time to inspect, audit and make copies of
and abstracts from Servicer's records regarding any
Receivables then or previously included in the Trust.
Section 11.3. Limitation on Rights of Holders. (a) The death
or incapacity of any Holder shall not operate to terminate this Agreement or the
Trust, or entitle the Holder'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, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
(b) No Holder shall have any right to vote (except as
expressly provided herein) 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 set forth
in this Agreement, or contained in the terms of the
Certificates, be construed so as to constitute the Holders as
partners or members of an association; nor shall any Holder be
under any liability to any third party by reason of any action
taken pursuant to any provision of this Agreement.
(c) No Holder 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 such
Holder previously shall have given to Trustee a written notice
of default and of the continuance thereof, as hereinbefore
provided, and unless, with respect to the Class A
Certificates, Class A Holders evidencing [not less than a
majority] of the aggregate outstanding principal balance of
the Class A Certificates or, with respect to the Class B
Certificates, Class B Holders evidencing [not less than a
majority] of the aggregate outstanding principal balance of
the Class B Certificates, shall have made written request upon
Trustee to institute such action, suit or proceeding in its
own name as Trustee under the Agreement and shall have offered
to Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or
thereby, and Trustee, for _ days after its receipt of such
notice, request and offer of indemnity satisfactory to it,
shall have neglected or refused to institute any such action,
suit or proceeding; 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
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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 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 Class A Holders or Class B Holders, as
the case may be. For the protection and enforcement of the
provisions of this Section 11.3, each Holder and Trustee shall
be entitled to such relief as can be given either at law or in
equity.
Section 11.4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS; EXCEPT THAT
THE GRANT OF A SECURITY INTEREST IN THE RESERVE ACCOUNT PROPERTY AND THE
PERFECTION, EFFECT OF PERFECTION, AND PRIORITY OF SUCH SECURITY INTEREST SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF ______________.
Section 11.5. Notices. All demands, notices, and
communications under this Agreement shall be in writing, personally delivered,
or sent by telecopier, overnight mail or mailed by certified mail, return
receipt requested, and shall be deemed to have been duly given upon receipt (a)
in the case of Seller to ▇▇▇▇▇▇ Brothers Asset Securitization LLC, [ ],
Attention: _______________; (b) in the case of Servicer, to [_______________],
Attention: ______________; (c) in the case of Trustee, at the Corporate Trust
Office, facsimile number: ______________; (d) in the case of ▇▇▇▇▇'▇ Investors
Service, Inc., at the following address: ▇▇▇▇▇'▇ Investors Service, Inc., ABS
Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇; (e) in the case of Standard & Poor's Ratings Service, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., at the following address: Standard
& Poor's Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed
Surveillance Department, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇; and (f) in the case
of Fitch, to __________________. Any notice required or permitted to be mailed
to a Holder shall be given by first class mail, postage prepaid, at the address
of record of such Holder. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Holder shall receive such notice.
Section 11.6. Severability of Provisions. If any one or more
of the covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, 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.
Section 11.7. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 2.5, 3.1, 6.3 and 7.3,
this Agreement may not be assigned
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by Seller or Servicer. This Agreement may not be assigned by Trustee except as
provided by Sections 9.10 through 9.13.
Section 11.8. Certificates Nonassessable and Fully Paid. 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 Trustee pursuant to Section 5.1, each Certificate shall be deemed
fully paid.
Section 11.9. Intention of Parties. (a) The execution and
delivery of this Agreement shall constitute an acknowledgment by Seller and
Trustee, on behalf of the Holders, that it is intended that the assignment and
transfer herein contemplated constitute a sale and assignment outright, and not
for security, of the Receivables and the other Trust Property, conveying good
title thereto free and clear of any liens, from Seller to the Trust, and that
the Receivables and the other Trust Property shall not be a part of Seller's
estate in the event of the insolvency, receivership, conservatorship or the
occurrence of another similar event, of, or with respect to, Seller. In the
event that such conveyance is determined to be made as security for a loan made
by the Trust or the Holders to the Seller, the parties intend that Seller shall
have granted to Trustee a security interest in all of Seller's right, title and
interest in and to the Trust Property conveyed to the Trust pursuant to Section
2.1, and that this Agreement shall constitute a security agreement under
applicable law.
(b) The execution and delivery of this Agreement
shall constitute an acknowledgment by Seller and Trustee on
behalf of the Holders that they intend that the Trust be
classified (for Federal tax purposes) as a grantor trust under
Subpart E, Part I of Subchapter J of the Internal Revenue Code
of which the Holders are owners, rather than as an association
taxable as a corporation. The powers granted and obligations
undertaken in this Agreement shall be construed so as to
further such intent.
Section 11.10. 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.
Section 11.11. Further Assurances. Seller and Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by Trustee more fully
to effect the purposes of this Agreement, including without limitation, the
execution of any financing statements or continuation statements relating to the
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 11.12. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the Holders,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of
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any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges therein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
▇▇▇▇▇▇ BROTHERS ASSET SECURITIZATION LLC
By:_______________________________________
Name:
Title:
[___________________________________], Servicer
By:_______________________________________
Name:
Title:
________________________________________ BANK,
Trustee
By:_______________________________________
Name:
Title:
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SCHEDULE A
LOCATION OF RECEIVABLE FILES
[__________________________________]
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SCHEDULE B
SCHEDULE OF RECEIVABLES
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FORM OF CLASS A CERTIFICATE
EXHIBIT A
[___________________________]
_____% ASSET BACKED CERTIFICATE, CLASS A
Evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of fixed rate simple interest retail motor
vehicle loans and/or retail installment sales contracts (the "Receivables")
secured by the new and used automobiles and light duty trucks financed thereby
(the "Financed Vehicles") and sold to the Trust by ▇▇▇▇▇▇ Brothers Asset
Securitization LLC.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
[_____________________________]. THIS CERTIFICATE AND THE RECEIVABLES ARE NOT
DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NUMBER CUSIP ____________________
$_________________________
__________________ Original Certificate Amount
Exhibit A, Page 1
87
THIS CERTIFIES THAT ___________________ is the registered
owner of a ______________ dollars, nonassessable, fully paid, fractional
undivided interest in [_________________] (the "Trust") formed pursuant to a
Pooling and Servicing Agreement dated as of ___________, 200[_] (the
"Agreement") among ▇▇▇▇▇▇ Brothers Asset Securitization LLC (the "Seller"),
[__________________](the "Servicer") and _____________ Bank, a _______________
corporation, as trustee (the "Trustee").
To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "_____%
Asset Backed Certificates, Class A" (herein called the "Class A Certificates").
Also issued under the Agreement are Certificates designated as "_____% Asset
Backed Certificates, Class B" (the "Class B Certificates"). The Class A
Certificates and the Class B Certificates are hereinafter collectively called
the "Certificates." This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The Trust Property includes (as more fully described in the Agreement)
a pool of Receivables, certain monies received under the Receivables after
___________ __, 200[_] (the "Cutoff Date"), security interests in the Financed
Vehicles, and proceeds of the foregoing.
Subject to the terms and conditions of the Agreement
(including the availability of funds for distributions) and until the
obligations created by the Agreement shall have terminated in accordance
therewith, there will be distributed, but only from funds on deposit in the
Class A Distribution Account, on the _th day of each month or, if such _th day
is not a Business Day, the next succeeding Business Day (each such date, a
"Distribution Date"), commencing _________ __, 200[_], to the Person in whose
name this Certificate is registered at the close of business on the last day of
the preceding Collection Period (the "Record Date"), such Holder's fractional
undivided interest in the amounts to be distributed to Class A Holders pursuant
to the Agreement on such Distribution Date.
Distributions on this Certificate will be made by Trustee by
check mailed to the Holder of record at its address as it appears in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon, except that with respect to a Certificate
registered in the name of a Clearing Agency or its nominee, distributions will
be made by wire transfer of immediately available funds. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after due notice by Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency maintained for that purpose by Trustee.
This Certificate does not purport to summarize the Agreement
and reference is hereby made to the Agreement for information with respect to
the rights, benefits, obligations and duties evidenced thereby.
Exhibit A, Page 2
88
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
Each Holder, by its acceptance of a Certificate or a
beneficial interest in a Certificate, acknowledges and agrees that they intend
that the Trust be classified (for Federal tax purposes) as a grantor trust under
Subpart E, Part I of Subchapter J of the Internal Revenue Code of which the
Holders are owners, rather than as an association taxable as a corporation.
IN WITNESS WHEREOF, Trustee, on behalf of the Trust, and not
in its individual capacity, has caused this Certificate to be duly executed.
[_____________________________________________]
By:______________________________________ BANK,
as Trustee
By:___________________________________________
Authorized Officer
DATED:
[SEAL]
ATTEST:
_____________________________________________
Authorized Officer
Trustee's Certificate of Authentication:
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
_________________________________________ BANK,
as Trustee
By:___________________________________________
Authorized Officer
Exhibit A, Page 3
89
FORM OF CLASS B CERTIFICATE
EXHIBIT B
[_____________________________]
_____% ASSET BACKED CERTIFICATE, CLASS B
Evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of fixed rate simple interest retail motor
vehicle loans and/or retail installment sales contracts (the "Receivables")
secured by the new and used automobiles and light duty trucks financed thereby
(the "Financed Vehicles") and sold to the Trust by ▇▇▇▇▇▇ Brothers Asset
Securitization LLC.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF [_________________________]
THIS CERTIFICATE AND THE RECEIVABLES ARE NOT DEPOSITS AND ARE NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NUMBER CUSIP ____________________
$_________________________
__________________ Original Certificate Amount
Exhibit B, Page 1
90
THIS CERTIFIES THAT ________________ is the registered owner
of a _________________ dollars, nonassessable, fully paid, fractional undivided
interest in the [__________________] (the "Trust") formed pursuant to a Pooling
and Servicing Agreement dated as of ________ __, 200[_] (the "Agreement") among
▇▇▇▇▇▇ Brothers Asset Securitization LLC, a Delaware corporation (the "Seller"),
[_____________________] (the "Servicer") and _____________ Bank, a _____________
corporation, as trustee (the "Trustee").
To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "_____%
Asset Backed Certificates, Class B" (herein called the "Class B Certificates").
Also issued under the Agreement are Certificates designated as "_____% Asset
Backed Certificates, Class A" (the "Class A Certificates"). The Class A
Certificates and the Class B Certificates are hereinafter collectively called
the "Certificates." This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The Trust Property includes (as more fully described in the Agreement)
a pool of Receivables, certain monies received under the Receivables after
________ __, 200[_] (the "Cutoff Date"), security interests in the Financed
Vehicles, and proceeds of the foregoing. The rights of the Holder of the Class B
Certificates are subordinated to the rights of the Holders of the Class A
Certificates to the extent set forth in the Agreement.
Subject to the terms and conditions of the Agreement
(including the availability of funds for distributions and the subordination of
the Class B Certificates) and until the obligations created by the Agreement
shall have terminated in accordance therewith, there will be distributed, but
only from funds on deposit in the Class B Distribution Account, on the _th day
of each month or, if such _th day is not a Business Day, the next succeeding
Business Day (each such date, a "Distribution Date"), commencing _______ _,
200[_], to the Person in whose name this Certificate is registered at the close
of business on the last day of the preceding Collection Period (the "Record
Date"), such Holder's fractional undivided interest in the amounts to be
distributed to Class B Holders pursuant to the Agreement on such Distribution
Date.
Distributions on this Certificate will be made by Trustee by
check mailed to the Holder of record at its address as it appears in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon, except that with respect to a Certificate
registered in the name of a Clearing Agency or its nominee, distributions will
be made by wire transfer of immediately available funds. Except as otherwise
provided in the Agreement and notwithstanding the above, the final distribution
on this Certificate will be made after due notice by Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency maintained for that purpose by Trustee.
This Certificate does not purport to summarize the Agreement
and reference is hereby made to the Agreement for information with respect to
the rights, benefits, obligations and duties evidenced thereby.
Exhibit B, Page 2
91
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
Each Holder, by its acceptance of a Certificate or a
beneficial interest in a Certificate, acknowledges and agrees that they intend
that the Trust be classified (for Federal tax purposes) as a grantor trust under
Subpart E, Part I of Subchapter J of the Internal Revenue Code of which the
Holders are owners, rather than as an association taxable as a corporation.
IN WITNESS WHEREOF, Trustee, on behalf of the Trust, and not
in its individual capacity, has caused this Certificate to be duly executed.
[________________________________________]
By:_____________________________ BANK, as Trustee
By:_____________________________________________
Authorized officer
DATED:
[SEAL]
ATTEST:
________________________________________________
Authorized Officer
Trustee's Certificate of Authentication:
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
________________________________ BANK, as Trustee
By:_____________________________________________
Authorized Officer
Exhibit B, Page 3
92
EXHIBIT C
Form of Servicer's Report
Exhibit C, Page 1