Exhibit 4.2
BAY VIEW TRANSACTION CORPORATION
Transferor
BAY VIEW ACCEPTANCE CORPORATION
Servicer
[_________________________________]
Back-up Servicer
[_________________________________]
Standby Servicer
_________________________________
Indenture Trustee
and
_________________________________
Owner Trustee
TRUST AND SERVICING AGREEMENT,
Dated as of __________
Bay View _____ Owner Trust
TABLE OF CONTENTS
PAGE
ARTICLE I Creation of Trust..................................................... 1
SECTION 1.01 Name............................................................ 1
SECTION 1.02 Office.......................................................... 1
SECTION 1.03 Purposes and Powers............................................. 1
SECTION 1.04 Appointment of Owner Trustee.................................... 2
SECTION 1.05 Initial Capital Contribution of Trust Estate.................... 2
SECTION 1.06 Declaration of Trust............................................ 2
SECTION 1.07 Title to Trust Property......................................... 2
SECTION 1.08 Situs of Trust.................................................. 2
ARTICLE II Definitions.......................................................... 3
SECTION 2.01 Definitions..................................................... 3
SECTION 2.02 Usage of Terms.................................................. 14
SECTION 2.03 Cutoff Date and Record Date..................................... 14
SECTION 2.04 Section References.............................................. 14
SECTION 2.05 Compliance Certificates......................................... 14
SECTION 2.06 Directions...................................................... 15
SECTION 2.07 Calculations.................................................... 15
SECTION 2.08 Action by or Consent of Noteholders............................. 15
ARTICLE III Conveyance of Receivables........................................... 15
SECTION 3.01 Conveyance of Receivables....................................... 15
ARTICLE IV Acceptance by Trustee................................................ 16
SECTION 4.01 Acceptance by Trustee........................................... 16
ARTICLE V Information Delivered to the Rating Agencies.......................... 17
SECTION 5.01 Information Delivered to the Rating Agencies.................... 17
ARTICLE VI Agent for Service.................................................... 17
SECTION 6.01 Agent for Service............................................... 17
ARTICLE VII The Receivables..................................................... 18
SECTION 7.01 Representations and Warranties of Transferor.................... 18
SECTION 7.02 Repurchase Upon Breach.......................................... 19
SECTION 7.03 Custody of Receivable Files..................................... 19
SECTION 7.04 Duties of Servicer as Custodian................................. 19
SECTION 7.05 Instructions; Authority to Act.................................. 20
SECTION 7.06 Custodian's Indemnification..................................... 20
SECTION 7.07 Effective Period and Termination................................ 20
TRUST AND SERVICING AGREEMENT
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ARTICLE VIII Administration and Servicing of Receivables............................ 21
SECTION 8.01 Duties of Servicer.................................................. 21
SECTION 8.02 The Back-up Servicer................................................ 21
SECTION 8.03 The Standby Servicer................................................ 22
SECTION 8.04 Retention and Termination of Servicer............................... 23
SECTION 8.05 Collection of Receivable Payments................................... 23
SECTION 8.06 Realization Upon Receivables........................................ 24
SECTION 8.07 Physical Damage Insurance........................................... 25
SECTION 8.08 Maintenance of Security Interests in Financed Vehicles.............. 25
SECTION 8.09 Covenants of Servicer............................................... 25
SECTION 8.10 Purchase of Receivables Upon Breach................................. 25
SECTION 8.11 Servicing Fee....................................................... 26
SECTION 8.12 Servicer's Certificate.............................................. 26
SECTION 8.13 Annual Statement as to Compliance; Notice of Default................ 27
SECTION 8.14 Annual Independent Certified Public Accountant's Report............. 28
SECTION 8.15 Access to Certain Documentation and Information Regarding
Receivables......................................................... 28
SECTION 8.16 Servicer Expenses................................................... 28
SECTION 8.17 Reports to Noteholders.............................................. 29
ARTICLE IX Collections; Distributions to Noteholders and Certificateholders......... 29
SECTION 9.01 Collection Account.................................................. 29
SECTION 9.02 Collections......................................................... 29
SECTION 9.03 Additional Deposits................................................. 30
SECTION 9.04 Application of Funds................................................ 30
SECTION 9.05 Advances............................................................ 31
SECTION 9.06 Net Deposits........................................................ 32
SECTION 9.07 No Segregation of Moneys; No Interest............................... 32
SECTION 9.08 Accounting and Reports to the Certificateholder, the Internal
Revenue Service and Others.......................................... 32
SECTION 9.09 Payahead Account.................................................... 33
ARTICLE X The Certificates.......................................................... 33
SECTION 10.01 The Certificates.................................................. 33
SECTION 10.02 Authentication of Certificates.................................... 33
SECTION 10.03 Registration of Transfer and Exchange of Certificates............. 33
SECTION 10.04 Mutilated, Destroyed, Lost, or Stolen Certificates................ 34
SECTION 10.05 Agreement Regarding Tax Matters................................... 34
SECTION 10.06 Signature on Returns; Tax Matters Partner......................... 35
ARTICLE XI The Transferor........................................................... 35
SECTION 11.01 Representations and Undertakings of Transferor.................... 35
SECTION 11.02 Liability of Transferor; Indemnities.............................. 38
SECTION 11.03 Merger or Consolidation of, or Assumption of the Obligations of
Transferor........................................................ 38
SECTION 11.04 Limitation on Liability of Transferor and Others.................. 39
TRUST AND SERVICING AGREEMENT
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ARTICLE XII The Servicer; BACK-UP SERVICER; AND STANDBY SERVICER.................... 39
SECTION 12.01 Representations and Warranties.................................... 39
SECTION 12.02 Indemnities of Servicer, Back-up Servicer and Standby Servicer.... 43
SECTION 12.03 Merger or Consolidation of, or Assumption of the Obligations of
the Servicer, Back-up Servicer and Standby Servicer............... 45
SECTION 12.04 Limitation on Liability of Servicer and Others.................... 46
SECTION 12.05 Servicer, Back-up Servicer and Standby Servicer Not to Resign..... 46
SECTION 12.06 Delegation of Duties.............................................. 47
ARTICLE XIII Servicer Default....................................................... 47
SECTION 13.01 Events of Servicer Default........................................ 47
SECTION 13.02 Appointment of Successor.......................................... 49
SECTION 13.03 Notice of Events of Servicer Default.............................. 49
SECTION 13.04 Waiver of Past Defaults........................................... 49
ARTICLE XIV The Owner Trustee....................................................... 50
SECTION 14.01 Duties of Owner Trustee........................................... 50
SECTION 14.02 Owner Trustee's Certificate....................................... 52
SECTION 14.03 Owner Trustee's Assignment of Purchased Receivables............... 52
SECTION 14.04 Certain Matters Affecting the Owner Trustee....................... 53
SECTION 14.05 Owner Trustee Not Liable for Certificates or Receivables.......... 54
SECTION 14.06 Owner Trustee May Own Notes....................................... 55
SECTION 14.07 Owner Trustee's and Indenture Trustee's Fees and Expenses......... 55
SECTION 14.08 Eligibility Requirements for Owner Trustee........................ 56
SECTION 14.09 Resignation or Removal of Owner Trustee........................... 56
SECTION 14.10 Successor Owner Trustee........................................... 57
SECTION 14.11 Merger or Consolidation of Owner Trustee.......................... 57
SECTION 14.12 Appointment of Co-Trustee or Separate Owner Trustee............... 57
SECTION 14.13 Representations and Warranties of Owner Trustee................... 59
ARTICLE XV Termination servicer..................................................... 59
SECTION 15.01 Termination of the Trust.......................................... 59
SECTION 15.02 Optional Disposition of All Receivables........................... 59
ARTICLE XVI Miscellaneous Provisions................................................ 60
SECTION 16.01 Amendment......................................................... 60
SECTION 16.02 Protection of Title to Trust...................................... 62
SECTION 16.03 Limitation on Rights of Certificateholders........................ 64
SECTION 16.04 Governing Law..................................................... 64
SECTION 16.05 Notices........................................................... 65
SECTION 16.06 Severability of Provisions........................................ 65
SECTION 16.07 Assignment........................................................ 65
SECTION 16.08 Certificates Nonassessable and Fully Paid......................... 66
SECTION 16.09 Nonpetition Covenants............................................. 66
SECTION 16.10 No Recourse....................................................... 66
SECTION 16.11 Further Assurances................................................ 66
SECTION 16.12 No Waiver; Cumulative Remedies.................................... 66
TRUST AND SERVICING AGREEMENT
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SECTION 16.13 Third-Party Beneficiaries......................................... 66
SECTION 16.14 Actions by Noteholders or Certificateholders...................... 67
SECTION 16.15 Corporate Obligation.............................................. 67
SECTION 16.16 Independence of the Servicer, Back-up Servicer and Standby
Servicer.......................................................... 67
SECTION 16.17 No Joint Venture.................................................. 68
SECTION 16.18 Headings.......................................................... 68
SECTION 16.19 Entire Agreement.................................................. 68
SECTION 16.20 Effect of Policy Expiration Date.................................. 68
SECTION 16.21 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certifications..................................... 68
SECTION 16.22 Counterparts...................................................... 69
EXHIBIT 1 -- Owner Trustee's Certificate Pursuant to Section 15.02
EXHIBIT 2 -- Owner Trustee's Certificate Pursuant to Section 15.02
EXHIBIT 3 -- Servicer's Certificate
EXHIBIT A -- Form of Certificate of Trust
EXHIBIT B -- Form of Certificate
SCHEDULE A -- Schedule of Receivables
SCHEDULE B -- Location of Receivables
TRUST AND SERVICING AGREEMENT
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This TRUST AND SERVICING AGREEMENT 013558.0100:233303.03 This TRUST AND
SERVICING AGREEMENT, dated as of __________, is made with respect to the
formation of the Bay View _____ Owner Trust, among BAY VIEW TRANSACTION
CORPORATION, a Delaware corporation, as depositor (the "Transferor"), BAY VIEW
ACCEPTANCE CORPORATION, a Nevada corporation, as servicer (the "Servicer"), and
____________________, a Delaware banking corporation, as owner trustee (the
"Owner Trustee").
WITNESSETH THAT: In consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
CREATION OF TRUST
Upon the execution of this Agreement by the parties hereto and the
prompt filing thereafter of the Certificate of Trust in the State of Delaware,
there is hereby created the Bay View _____ Owner Trust.
SECTION 1.01 Name. The Trust created hereby shall be known as
"Bay View _____ Owner Trust", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued. The Trust shall constitute a business
trust within the meaning of Section 3801(a) of the Delaware Business Trust Act
for which the Owner Trustee has filed a certificate of trust with the Secretary
of State of the State of Delaware pursuant to Section 3810(a) of the Delaware
Business Trust Act.
SECTION 1.02 Office. The office of the Trust shall be in care
of the Owner Trustee at its Corporate Trust Office or at such other address as
the Owner Trustee may designate by written notice to the Certificateholders, the
Servicer, the Transferor, the Insurer and the Indenture Trustee.
SECTION 1.03 Purposes and Powers. The purpose of the Trust is
to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement and to sell or
transfer the Notes and the Certificates in one or more
transactions;
(ii) with the proceeds of the sale of the Notes and the
Certificates, to fund the Spread Account pursuant to
Section 9.02 of the Indenture and to purchase the
Receivables pursuant to this Agreement;
(iii) to assign, ▇▇▇▇▇, transfer, pledge, mortgage and convey
the Trust estate pursuant to the Indenture and to hold,
manage and distribute to the Certificateholders pursuant
to the terms of this Agreement any portion of the Trust
estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
TRUST AND SERVICING AGREEMENT
(iv) to enter into and perform its obligations under the
related documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient
to accomplish the foregoing or are incidental thereto or
connected therewith; and
(vi) subject to compliance with the related documents, to
engage in such other activities as may be required in
connection with conservation of the Trust estate and the
making of distributions to the Certificateholders, the
Noteholders and the others specified in this Agreement.
The Trust is hereby authorized to engage in the foregoing activities.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other related documents.
SECTION 1.04 Appointment of Owner Trustee. The Transferor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Delaware Statutory Trust Act.
SECTION 1.05 Initial Capital Contribution of Trust Estate. The
Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the Trust estate. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust estate. The
Transferor shall pay the organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
SECTION 1.06 Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the other related documents. It is
the intention of the parties hereto that the Trust constitute a business trust
under Delaware law and that this Agreement constitute the governing instrument
of such trust. It is the intention of the parties hereto that the Trust will be
disregarded and that the Certificateholders will be treated as the owner of the
Trust estate, and that the Notes will be treated as indebtedness of the
Certificateholders for all federal and state income and franchise tax purposes.
The Owner Trustee and the Certificateholders, by acceptance of the Certificates,
agree to treat the Notes for purposes of federal, state and local income or
franchise taxes as indebtedness.
SECTION 1.07 Title to Trust Property. Legal title to all of the
Trust estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Trust estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 1.08 Situs of Trust. The Trust will be located and
administered in the State of Delaware. Any bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware. The
Trust shall not have any employees in any state other
TRUST AND SERVICING AGREEMENT
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than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments, if any, will be received by the Trust only in Delaware, and payments,
if any, will be made by the Trust only from Delaware. The only office of the
Trust will be at the Corporate Trust Office in Delaware.
ARTICLE II
DEFINITIONS
SECTION 2.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Accrued Interest" means all interest accrued on the Receivables prior
to the opening of business on the day following the Cutoff Date.
"Administration Agreement" means the Administration Agreement dated as
of __________ among the Trust, the Owner Trustee and the Administrator.
"Administrator" means the Administrator under the Administration
Agreement, which is initially BVAC, and its successors and assigns thereunder.
"Advance" means, with respect to a Receivable and with respect to a
Collection Period, the amount that the Servicer is required to advance pursuant
to Section 9.05.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly controls, or is under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any 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.
"Agreement" means this Trust and Servicing Agreement executed by the
Transferor, the Servicer, the Indenture Trustee and the Owner Trustee, and all
amendments and supplements thereto.
"Amount Financed" means, with respect to a Receivable, the aggregate
amount advanced under the Receivable toward the purchase price of the Financed
Vehicle and any related costs.
"Approved Rating" means a rating of _____ by __________ or _____ by
__________.
"Authorized Newspaper" means a newspaper of general circulation in the
Borough of Manhattan, the City of New York, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Available Funds" means with respect to any Payment Date, each of the
following then on deposit in any Trust Accounts with respect to the related
Collection Period, (i) the amount of payment son all Receivables received during
such Collection Period other than Payaheads; (ii) any net withdrawal from the
Payahead Account; (iii) interest earned on funds held in the
TRUST AND SERVICING AGREEMENT
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Collection Account and the Payahead Account; (iv) Liquidation Proceeds; (v)
Advances; (vi) Purchase Amounts and/or any indemnity payments made in lieu of or
otherwise relating to such Purchase Amounts in accordance with the terms of
Sections 7.02 and 8.10 of this Agreement, (vii) proceeds form any insurance
policies related to the Receivables or Financed Vehicles, (viii) Recoveries with
respect to Charged-off Receivables and (ix) the Optional Disposition Price if,
the Servicer exercise its rights pursuant to Section 15.02.
"Available Spread Amount" means, on any Payment Date, the amount on
deposit in the Spread Account, including any income or gain from any investment
of funds in the Spread Account, net of any losses from such investment before
giving effect to deposits into or withdrawals from the Spread Account pursuant
to the Indenture.
"Back-up Servicer" means ____________________, as the back-up servicer
of the Receivables, and each successor to ____________________ (in the same
capacity) appointed hereunder.
"Back-up Servicer Fee" means, for any Collection Period, the fee
payable to the Back-up Servicer for services rendered during such Collection
Period. If the Back-up Servicer shall have taken on the role as Servicer
hereunder, it will be entitled to the Servicing Fee, and it shall not be
entitled to a Back-up Servicer Fee.
"Business Day" means, unless otherwise specified, any day other than a
Saturday, a Sunday or a day on which banking institutions in Wilmington,
Delaware, San Mateo, California or New York, New York shall be authorized or
obligated by law, executive order, or governmental decree to be closed.
"BVAC" means Bay View Acceptance Corporation, a Nevada corporation, and
its successors and assigns, other than in its capacity as Servicer.
"Certificate" means a certificate executed on behalf of the Trust and
authenticated by the Owner Trustee substantially in the form attached hereto as
Exhibit B, which represents ownership of a 100% interest in the Trust.
"Certificate of Trust" means the Certificate of Trust of the Trust in
substantially the form of Exhibit A hereto.
"Certificate Register" means the register maintained by the Owner
Trustee pursuant to Section 10.03.
"Certificateholder" or "Holder" means the Person in whose name the
Certificate shall be registered in the Certificate Register.
"Charged-Off Receivable" means, for any Collection Period, a Receivable
as to which any of the following has occurred: (i) any payment, or part thereof,
is 120 days or more delinquent as of the last day of such Collection Period,
(ii) the Financed Vehicle that secures the Receivable has been repossessed and
liquidated, or (iii) the Receivable has been determined to be uncollectible in
accordance with the Servicer's customary practices on or before the last day of
such Collection Period; provided, however, that "Charged-Off Receivable" shall
not include
TRUST AND SERVICING AGREEMENT
4
any Receivable that is to be repurchased pursuant to Section 7.02 or purchased
pursuant to Section 8.10; provided further, that any Advances made with respect
to a Receivable shall not be considered in the determination of the delinquency
status of such Receivable.
"Closing Date" means ____________________.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collected Interest" on a Receivable, as of the last day of a
Collection Period, means the portion of all payments received by the Servicer
allocable to interest relating to such Collection Period.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 9.01.
"Collection Period" means (i) initially, the period from the day after
the Cutoff Date to the end of the calendar month of __________, and (ii)
thereafter, each calendar month, until the Trust shall terminate pursuant to
Article XV.
"Contract Rate" means, with respect to a Receivable, the contract rate
of interest on such Receivable, exclusive of prepaid finance charges.
"Controlling Party" means the Insurer, so long as no Insurer Default
shall have occurred and be continuing and so long as the Insurance Agreement has
not terminated, and the Indenture Trustee, at the direction of the Majority
Noteholders, for so long as an Insurer Default shall have occurred and is
continuing or if the Insurance Agreement has terminated.
"Corporate Trust Office" means the office of the Owner Trustee at which
its corporate trust business shall, at any particular time, be administered,
which office at the date of the execution of this Agreement is located at
____________________; Attention: ____________________; Telecopy __________ or at
such other address as the Owner Trustee may designate from time to time by
notice to the Certificateholders, the Transferor, the Servicer, the Insurer and
the Indenture Trustee.
"Cutoff Date" means __________.
"Dealer" means the seller of a Financed Vehicle, who originated and
assigned the related Receivable to BVAC under an existing agreement with BVAC or
who arranged for a loan from BVAC to the purchaser of a Financed Vehicle under
an existing agreement with BVAC.
"Determination Date" means, for each Collection Period, the __________
Business Day prior to the related Payment Date.
"Eligible Bank" means any depository institution with trust powers
(including the Owner Trustee and the Indenture Trustee), organized under the
laws of the United States or any State having a net worth in excess of
$50,000,000, the deposits of which are insured to the full extent permitted by
law by the Federal Deposit Insurance Corporation, which is subject to
supervision
TRUST AND SERVICING AGREEMENT
5
and examination by Federal or State authorities and which (i) has a long-term
unsecured debt rating of at least BBB- from Standard & Poor's Rating Services or
(ii) is approved by the Insurer and each Rating Agency.
"Eligible Investment" means any of the following:
(i) direct obligations of, and obligations the full and
timely payment of principal and interest on which is
fully guaranteed by, the United States of America,
▇▇▇▇▇▇ ▇▇▇, or any agency or instrumentality of the
United States of America the obligations of which are
backed by the full faith and credit of the United
States of America;
(ii) (A) demand and time deposits in, certificates of
deposits of, bankers' acceptances issued by,
or federal funds sold by any depository
institution or trust company (including the
Owner Trustee, the Indenture Trustee or any
of their agents, acting in their respective
commercial capacities) incorporated under
the laws of the United States of America,
any State thereof or the District of
Columbia or any foreign depository
institution with a branch or agency licensed
under the laws of the United States of
America or any State, in each case subject
to supervision and examination by Federal
and/or State banking authorities and having
an Approved Rating at the time of such
investment or contractual commitment
providing for such investment or
(B) any other demand or time deposit or
certificate of deposit which is fully
insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase obligations with respect to:
(A) any security described in clause (i) above
or
(B) any other security issued or guaranteed by
an agency or instrumentality of the United
States of America, in either case entered
into with a depository institution or trust
company (acting as principal) described in
clause (ii) (A) above;
(iv) short-term securities bearing interest or sold at a
discount issued by any corporation incorporated under
the laws of the United States of America or any State
the short-term unsecured obligations of which have an
Approved Rating, or higher, at the time of such
investment; provided, however, that securities issued
by any particular corporation will not be Eligible
Investments to the extent that investment therein
will cause the then outstanding principal amount of
securities issued by such corporation and held as
part of the corpus of the Trust to exceed 10% of
amounts held in the Collection Account;
TRUST AND SERVICING AGREEMENT
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(v) commercial paper having an Approved Rating at the
time of such investment;
(vi) a guaranteed investment contract issued by any
insurance company or other corporation acceptable to
the Rating Agency, provided that the Owner Trustee or
the Indenture Trustee shall have received written
notice from the Rating Agency to the effect that the
investment of funds in such a contract will not
result in the reduction or withdrawal of any rating
on the Notes;
(vii) interests in any money market fund having a rating of
_____ by __________ or _____ by __________; and
(viii) any other investment approved in advance in writing
by the Rating Agencies and the Insurer.
"Event of Servicer Default" means an event specified in Section 13.01.
"Financed Vehicle" means a new or used automobile, light-duty truck,
recreational vehicle, motorcycle or van, together with all accessions thereto,
securing an Obligor's indebtedness under the respective Receivable.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board, or in such other statements that are
described in Statement on Auditing Standards No. 69 "The Meaning of Present
Fairly in Conformity With Generally Accepted Accounting Principles in the
Independent Auditor's Report" that are applicable to the circumstances as of the
date of determination, applied on a consistent basis.
"Holder"--see "Certificateholder."
"Indenture" means the Indenture dated as of __________ between the
Trust, as Issuer, and __________ as Indenture Trustee, which provides for the
issuance of the Notes as the same may be amended, supplemented or otherwise
modified from time to time.
"Indenture Trustee" means ____________________ in its role as Indenture
Trustee under the Indenture and its permitted successors and assigns.
"Indenture Trustee Fee" means the fees and expenses payable on each
Payment Date to the Indenture Trustee in consideration for the performance of
its duties as Indenture Trustee as set forth in the fee letter agreement dated
__________.
"Indenture Trustee Office" means the office of the Indenture Trustee at
which its business as Indenture Trustee under the Indenture shall be
administered, which office is presently located at ____________________;
telecopy __________ or at such other address as the Indenture Trustee may
designate from time to time by notice to the Owner Trustee, the Servicer and the
Noteholders.
TRUST AND SERVICING AGREEMENT
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"Insolvency Event" with respect to a party means (i) the entry of a
decree or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a trustee-in-bankruptcy or
similar official for such party in any insolvency, readjustment of debt,
marshaling of assets and liabilities, or similar proceedings, or for the winding
up or liquidation of their respective affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(ii) the consent by such party to the appointment of a trustee-in-bankruptcy or
similar official in any insolvency, readjustment of debt, marshaling of assets
and liabilities, or similar proceedings of or relating to such party or of or
relating to substantially all of its property; or (iii) such party shall admit
in writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations.
"Insolvency Proceeding" means the commencement, after the date hereof,
of any bankruptcy, insolvency, readjustment of debt, reorganization, marshaling
of assets and liabilities or similar proceedings by or against BVAC or the
Transferor, the commencement, after the date hereof, of any proceedings by or
against BVAC or the Transferor for the winding up or liquidation of its affairs
or the consent, after the date hereof, to the appointment of a trustee,
conservator, receiver, or liquidator in any bankruptcy, insolvency, readjustment
of debt, reorganization, marshaling of assets and liabilities or similar
proceedings of or relating to BVAC or the Transferor.
"Insurance Agreement" means the Insurance and Reimbursement Agreement,
dated as of the Closing Date, among the Trust, the Transferor, BVAC and the
Insurer pursuant to which the Insurer issued the Policy.
"Insurance Policies" means any physical damage, credit life and credit
accident and health insurance policies or certificates or any vendor's single
interest physical damage insurance policy relating to the Receivables, the
Financed Vehicles or the Obligors.
"Insurer" means ____________________, a __________ domiciled insurance
company.
"Insurer Default" means the existence and continuance of any of the
following:
(a) the Insurer shall have failed to make a payment
required under the Policy in accordance with its terms; or
(b) the Insurer shall have (i) filed a petition or
commenced any case or proceeding under any provision or chapter of the
United States Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the benefit of its
creditors, or (iii) had an order for relief entered against it under
the United States Bankruptcy Code or any other similar federal or state
law relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or
(c) a court of competent jurisdiction, the New York
Department of Insurance or other competent regulatory authority shall
have entered a final and nonappealable
TRUST AND SERVICING AGREEMENT
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order, judgment or decree (i) appointing a custodian, trustee, agent or
receiver for the Insurer or for all or any material portion of its
property or (ii) authorizing the taking of possession by a custodian,
trustee, agent or receiver of the Insurer (or the taking of possession
of all or any material portion of the property of the Insurer).
"Interest Advance Amount" with respect to a simple interest Receivable
as to which an Advance is required to be made on the last day of a Collection
Period, shall mean an amount equal to 30 days of interest upon the Principal
Balance of such Receivable as of such date; and, with respect to a Precomputed
Receivable as to which an Advance is required to be made on the last day of a
Collection Period, shall mean an amount equal to that portion of the earliest
delinquent Scheduled Payment allocable to interest (using the actuarial or
constant yield method).
"Interest Shortfall" means, as to any simple interest Receivable as of
the last day of any Collection Period, the amount, if any, by which (a) interest
due on such Receivable exceeds (b) the Collected Interest on such Receivable.
"Interest Shortfall" with respect to a Precomputed Receivable as of the last day
of any Collection Period means the amount, if any, by which the portion of the
Scheduled Payment due during such Collection Period allocable to interest (using
the actuarial or constant yield method) exceeds the Collected Interest on such
Receivable (computed using the same method except that the amount of Collected
Interest in respect of Precomputed Receivables shall be increased by giving
effect to the withdrawal for the related Payment Date of any previously received
Scheduled Payments in respect of such Receivable from the Payahead Account in
accordance with Sections 8.05(b) and 9.09 hereof).
"Issuer" has the meaning specified in the Indenture.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than tax liens, mechanics' liens, and any liens
which attach to the respective Receivable or related Financed Vehicle by
operation of law.
"Liquidation Proceeds" means the monies collected from whatever source,
including insurance proceeds, on Charged-Off Receivables, net of the sum of any
amounts expended by the Servicer for the account of the Obligor plus any amounts
required by law to be remitted to the Obligor. "Liquidation Proceeds" with
respect to a Payment Date means such monies collected during the preceding
Collection Period. In no event shall Liquidation Proceeds be less than zero.
"Majority Noteholders" has the meaning specified in the Indenture.
"Monthly Interest" has the meaning specified in the Indenture.
"Monthly Principal" has the meaning specified in the Indenture.
"Notes" mean the Notes issued by the Trust pursuant to the Indenture.
"Noteholders" mean the holders of the Notes issued pursuant to the
Indenture.
"Obligor" on a Receivable means the purchaser or the co-purchasers of
the Financed Vehicle or any other Person who owes payments under the Receivable.
The phrase "payment
TRUST AND SERVICING AGREEMENT
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made on behalf of an Obligor" shall mean all payments made with respect to a
Receivable except payments made by BVAC, the Transferor or the Servicer.
"Officers' Certificate" means a certificate signed by any two of the
chairman of the board, the president, any vice chairman of the board, any vice
president, the treasurer, or the controller of BVAC, the Transferor or the
Servicer, as the case may be; provided that no individual shall sign in a dual
capacity.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel to the Transferor and/or Servicer, which counsel shall be acceptable to
the Owner Trustee.
"Optional Disposition Price" means the amount specified as such in
Section 15.02.
"Original Pool Balance" means $__________.
"Outstanding Advances" as of any date, with respect to a Receivable,
means the total amount of Advances made on such Receivable for which the
Servicer has not been reimbursed.
"Owner Trustee" means ____________________, a banking corporation
organized under the laws of the State of Delaware and its successors or any
corporation resulting from or surviving any merger or consolidation to which it
or its successors may be a party or any successor trustee at the time serving as
successor trustee hereunder.
"Owner Trustee Fee" means the fees and expenses payable on each Payment
Date to the Owner Trustee in consideration for the performance of its duties as
Owner Trustee as set forth in the fee letter agreement dated __________.
"Owner Trustee's Certificate" means a certificate completed and
executed by the Owner Trustee by a Responsible Officer pursuant to Section
14.02, substantially in the form of, in the case of an assignment to BVAC,
Exhibit 1, and in the case of an assignment to the Servicer, Exhibit 2.
"Payahead" on a Precomputed Receivable means the amount, as of the
close of business on the last day of a Collection Period, computed in accordance
with Section 8.05(b) with respect to such Receivable.
"Payahead Account" means the account designated as such, established
and maintained pursuant to Section 9.09.
"Payahead Balance" on a Precomputed Receivable means the sum, as of the
close of business on the last day of a Collection Period, of all Payaheads made
by or on behalf of the Obligor with respect to such Precomputed Receivable, as
reduced by applications of previous Payaheads with respect to such Precomputed
Receivable, pursuant to Sections 8.05(b) and 9.09.
"Payment Date" means, for each Collection Period, the _____ calendar
day of the month or, if such day is not a Business Day, the first Business Day
thereafter. The first Payment Date shall be __________.
TRUST AND SERVICING AGREEMENT
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"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Policy" means the irrevocable financial guaranty insurance policy
dated as of the Closing Date issued by the Insurer to the Indenture Trustee for
the benefit of the Noteholders as required under the Indenture.
"Pool Balance" as of any date means the aggregate Principal Balance of
the Receivables as of such date; provided, however, that for purposes of
determining Monthly Principal, the Principal Balance of a Charged-Off Receivable
or a Purchased Receivable (if actually purchased by the Servicer or repurchased
by BVAC) shall be deemed to be zero on and after the close of business on the
last day of the Collection Period in which the Receivable becomes a Charged-Off
Receivable or a Purchased Receivable that is actually purchased or repurchased.
"Precomputed Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
related contract as an add-on finance charge) and the portion allocable to the
Amount Financed is determined according to the sum of periodic balances, the sum
of monthly balances, the rule of 78's or any equivalent method.
"Prepayment Charges," means, with respect to a Precomputed Receivable
that is prepaid in full, the difference between the Principal Balance of such
Receivable (plus accrued interest to the date of prepayment) and the Principal
Balance of such Receivable computed in accordance with the method provided for
in the contract governing such Receivable, such as the rule of 78's.
"Principal Balance" of a simple interest Receivable, as of the close of
business on the last day of a Collection Period, means the Amount Financed minus
that portion of all payments received on or before the close of business on such
last day allocable to principal of such Receivable. "Principal Balance" with
respect to a Precomputed Receivable, as of the close of business on the Cutoff
Date, means the gross principal balance of such Receivable on the records of the
Servicer, net of unearned or accrued interest reflected therein, and as of the
close of business on the last day of a Collection Period, means the Principal
Balance as of the Cutoff Date minus that portion of all Scheduled Payments
received with respect to such Receivable in respect of such Collection Period
and all prior Collection Periods allocable to principal of such Receivable using
the actuarial or constant yield method.
"Purchase Agreement" means the Purchase Agreement dated as of the date
hereof by and between the Transferor and BVAC, as amended, supplemented or
modified from time to time in accordance with the terms thereof.
"Purchase Amount" of any Receivable, as of the close of business on the
last day of any Collection Period, means the amount equal to the sum of the
Principal Balance of such Receivable plus any unpaid interest accrued and due
during or prior to such Collection Period on such Receivable.
"Purchased Receivable" means a Receivable purchased by the Servicer
pursuant to Section 8.10 or repurchased by BVAC pursuant to Section 7.02 not
later than the respective dates required thereby.
TRUST AND SERVICING AGREEMENT
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"Rating Agency" means each of __________ and __________ and their
successors and assigns.
"Rating Agency Condition" has the meaning specified in the Indenture.
"Receivable" means any simple interest or pre-computed (add-on)
interest installment sales contract or installment loan and security agreement
which shall appear on Schedule A to the Agreement.
"Receivable Files" means the documents specified in Section 7.03.
"Record Date" has the meaning specified in the Indenture.
"Recoveries" means, with respect to a Charged-off Receivable and for
any Collection Period occurring after the Collection Period during which such
Receivable becomes a Charged-off Receivable, all payments, including insurance
proceeds, that the Servicer received from or on behalf of an Obligor regarding
such Charged-off Receivable, or from liquidation of the related Financed
Vehicle, net of any reasonably incurred out-of-pocket expenses incurred by the
Servicer in enforcing such Charged-off Receivable.
"Redemption Price" has the meaning specified in the Indenture.
"Responsible Officer" means, when used with respect to the Owner
Trustee, any officer within the Corporate Trust Office (or any successor group
of the Owner Trustee) including any managing director, vice president, assistant
vice president, assistant treasurer, assistant secretary or any other officer of
the Owner Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Scheduled Payment" on a Receivable means that portion of the payment
required to be made by the Obligor during the respective Collection Period
sufficient to amortize the Principal Balance and to provide interest at the
Contract Rate.
"Secured Parties" means each of the Indenture Trustee, the Noteholders
and the Insurer pursuant to the Indenture.
"Servicer" means Bay View Acceptance Corporation, a Nevada corporation,
in its capacity as the servicer of the Receivables and each successor to Bay
View Acceptance Corporation (in the same capacity) pursuant to Section 12.03 or
13.02; provided that, if the Servicer has been removed pursuant to Section 8.04
or Section 13.02 hereof, "Servicer" shall mean the Standby Servicer or such
other Person appointed as the successor Servicer pursuant to Section 13.02
hereof. If the Standby Servicer has been removed as Servicer pursuant to Section
13.02 hereof, "Servicer" shall mean the Back-up Servicer, acting through an
agent, or such other Person appointed as the successor Servicer pursuant to
Section 13.02 hereof.
"Servicer Extension Notice" means the notice delivered pursuant to
Section 8.04 hereof.
TRUST AND SERVICING AGREEMENT
12
"Servicer's Certificate" means a certificate completed and executed by
an officer of the Servicer pursuant to Section 8.12.
"Servicing Fee" means, (i) for the first Payment Date, the product of
the following: the (a) monthly Servicing Rate (b) the number of days remaining
in the month of the Closing Date from and including the Closing Date, assuming a
30-day month, divided by 30 and (c) the Original Pool Balance and (ii) for any
subsequent Payment Date, the product of (a) the Pool Balance as of the beginning
of the related Collection Period and (b) the monthly Servicing Rate.
"Servicing Rate" means 1.00% per annum, payable monthly at one-twelfth
of the annual rate, subject to adjustment with respect to a successor Servicer
pursuant to Section 13.02.
"Spread Account" means the account designated as such, established and
maintained pursuant to the Indenture.
"Standby Servicer" means __________ in its capacity as Standby Servicer
or such Person as shall have been appointed Standby Servicer pursuant to Section
8.03 hereof.
"Standby Servicer Fee" means, for any Collection Period, the fee
payable to the Standby Servicer for services rendered during such Collection
Period. If the Standby Servicer shall have taken on the role as Servicer
hereunder, it will be entitled to the Servicing Fee, and it shall not be
entitled to a Standby Servicing Fee.
"Standby Servicer Fee Rate" means, with respect to any Payment Date,
the amount, expressed as a percentage, determined by dividing (i) the Standby
Servicer Fee for such Payment Date and (ii) the outstanding Principal Balance of
the Receivables as of the first day of the immediately preceding Collection
Period.
"State" means (i) any state of the United States of America or (ii) the
District of Columbia.
"Stated Final Payment Date" means ____________________.
"Transferor" means Bay View Transaction Corporation, a Delaware
corporation, in its capacity as the seller of the Receivables under this
Agreement, and each successor to Bay View Transaction Corporation (in the same
capacity) pursuant to Section 11.03.
"Transition Costs" means reasonable costs and expenses (including
attorneys' fees) incurred by and payable by the predecessor Servicer, or to the
extent not so paid, by the Issuer, to the extent of Available Funds, pursuant to
Section 8.04(a) of the Indenture, to the Successor Servicer in connection with
the transfer of servicing (whether due to termination, resignation or otherwise)
from the Servicer to such successor Servicer, including, without limitation,
costs and expenses incurred in connection with transferring the Receivable Files
and amending this Agreement to reflect the transfer of servicing, which shall be
approved in writing by the Insurer; provided, however, that in no event shall
the Transition Costs exceed $__________ without the prior written consent of the
Controlling Party.
TRUST AND SERVICING AGREEMENT
13
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trigger Event" means any of the events identified as such in the
Insurance Agreement.
"Trust" means the Delaware business trust created by the Agreement, the
estate of which shall generally comprise the Receivables (other than Purchased
Receivables) and all monies paid thereon, and all monies due thereon, including
Accrued Interest, as of and after the Cutoff Date (but excluding Accrued
Interest paid on or prior to the Closing Date); security interests in the
Financed Vehicles; funds deposited in the Collection Account; all documents
contained in the Receivable Files; any property that shall have secured a
Receivable and that shall have been acquired by or on behalf of the Trust; any
Liquidation Proceeds and any rights of the Transferor in proceeds from claims or
refunds of premiums on any physical damage, lender's single interest, credit
life, disability, and hospitalization insurance policies covering Financed
Vehicles or Obligors; the interest of the Transferor in recourse to Dealers
relating to certain of the Receivables; the proceeds of the foregoing; amounts
on deposit from time to time in the Spread Account; and certain rights of the
Transferor under the Purchase Agreement, including, without limitation, Section
3.04 thereof.
"Trust Accounts" means the Collection Account and the Payahead Account.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
SECTION 2.02 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation."
SECTION 2.03 Cutoff Date and Record Date. All references to the
Record Date prior to the first Record Date in the life of the Trust shall be to
the Closing Date.
SECTION 2.04 Section References. All Section references in this
Agreement shall be to Sections in this Agreement unless otherwise specified.
SECTION 2.05 Compliance Certificates. Upon any application or
request by the Transferor, the Servicer, the Back-up Servicer or the Standby
Servicer to the Indenture Trustee to take any action under any provision herein,
such requesting party shall furnish to the Indenture Trustee and the Insurer (so
long as the Insurance Agreement has not terminated), an Officer's Certificate
stating that all conditions precedent, if any, provided for herein relating to
the proposed action have been complied with, except that in the case of any
other such application or request as to which the furnishing of such documents
is specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate need be furnished.
TRUST AND SERVICING AGREEMENT
14
Every certificate with respect to compliance with a condition or
covenant provided herein shall include a statement that each individual signing
such certificate has read such covenant or condition and the definitions and
other provisions herein relating thereto.
SECTION 2.06 Directions. Any direction required to be given by
the Noteholders shall be given hereunder by the Insurer, unless an Insurer
Default shall have occurred and be continuing or the Policy shall have expired
in accordance with its terms, in which case the Indenture Trustee, acting at the
direction of the Majority Noteholders, shall be entitled to give such direction.
SECTION 2.07 Calculations. All calculations of the amount of the
Servicing Fee, the Standby Servicer Fee, the Indenture Trustee Fee and the Owner
Trustee Fee shall be made on the basis of a 360-day year consisting of twelve
30-day months. All references to the Principal Balance of a Receivable as of the
last day of a Collection Period shall refer to the close of business on such
day.
SECTION 2.08 Action by or Consent of Noteholders. Whenever any
provision of this Agreement refers to action to be taken, or consented to, by
Noteholders, such provision shall be deemed to refer to Noteholders of record as
of the Record Date immediately preceding the date on which such action is to be
taken, or consent given, by Noteholder. Solely for the purposes of any action to
be taken or consented to by Noteholders, any Note registered in the name of the
Transferor, the Servicer or any Affiliate thereof shall be deemed not to be
outstanding and shall not be taken into account in determining whether the
requisite interest necessary to effect any such action or consent has been
obtained; provided, however, that, solely for the purpose of determining whether
the Indenture Trustee is entitled to rely upon any such action or consent, only
Notes which the Indenture Trustee actually knows to be so owned shall be so
disregarded.
ARTICLE III
CONVEYANCE OF RECEIVABLES
SECTION 3.01 Conveyance of Receivables. In consideration of the
Owner Trustee's delivery to the Transferor of the Certificates and the proceeds
to be realized by the Trust from the issuance of the Notes pursuant to the
Indenture, the Transferor does hereby sell, transfer, assign, and otherwise
convey to the Trust, in trust without recourse (subject to the obligations
herein):
(i) all right, title, and interest of the Transferor in
and to the Receivables listed in Schedule A hereto;
(ii) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables;
(iii) any proceeds from claims and other amounts relating
to Insurance Policies and other items financed under
the Receivables or otherwise covering an Obligor or a
Financed Vehicle;
(iv) any Liquidation Proceeds;
TRUST AND SERVICING AGREEMENT
15
(v) all property (including the right to receive future
Liquidation Proceeds) that secures a Receivable and
that has been or may be acquired pursuant to the
liquidation of the Receivable;
(vi) funds deposited in the Collection Account and the
Spread Account;
(vii) the interest of the Transferor in any proceeds from
recourse to Dealers relating to the Receivables;
(viii) all documents contained in the Receivable Files;
(ix) all monies paid and all monies due, including Accrued
Interest, as of and after the Cutoff Date, with
respect to the Receivables held by the Servicer or
Transferor (but excluding Accrued Interest paid on or
prior to the Closing Date);
(x) the rights of the Transferor pursuant to this Trust
and Servicing Agreement and to the Purchase
Agreement, including, without limitation, a direct
right to require BVAC to repurchase any Receivables
as to which there has been a breach of the
representations and warranties contained therein;
(xi) the benefits of the Policy; and
(xii) all proceeds of the foregoing.
The Transferor does hereby further assign, convey, pledge and grant a
security interest in (i) any and all other right, title and interest, including
any beneficial interest the Transferor may have in the Collection Account, the
Spread Account and the funds deposited therein, and (ii) any proceeds of any of
the foregoing, to the Owner Trustee and for the benefit of the Noteholders to
secure amounts payable to Noteholders as provided under this Agreement. The
Transferor acknowledges that all of the foregoing shall constitute the "Pledged
Assets" pursuant to the terms of the Indenture and the Transferor hereby
consents to the pledge of all of such assets to the Indenture Trustee for the
benefit of the Secured Parties pursuant to the Indenture.
The Transferor does not convey to the Owner Trustee any interest in any
contracts with Dealers related to any "dealer reserve" or any rights to the
recapture of any dealer reserve.
ARTICLE IV
ACCEPTANCE BY TRUSTEE
SECTION 4.01 Acceptance by Trustee. The Owner Trustee does hereby
accept all consideration conveyed by the Transferor pursuant to Article III, and
declares that the Owner Trustee shall hold such consideration upon the trusts
herein set forth for the benefit of all present and future Certificateholders,
subject to the terms and provisions of this Agreement.
TRUST AND SERVICING AGREEMENT
16
ARTICLE V
INFORMATION DELIVERED TO THE RATING AGENCIES
SECTION 5.01 Information Delivered to the Rating Agencies.
(a) The Servicer hereby expresses its intention to
deliver promptly to each Rating Agency (i) a copy of each Servicer's
Certificate that it delivers to the Owner Trustee, the Indenture
Trustee and the Insurer pursuant to Section 8.12, (ii) a copy of each
annual Officers' Certificate as to compliance and any notice of default
that it delivers to the Indenture Trustee or the Owner Trustee pursuant
to Section 8.13, (iii) delinquency and loss information for the
Receivables, the amount of any draws on the Policy, written notice of
any merger, consolidation, or other succession of the Servicer,
pursuant to Section 12.03, or the Transferor, pursuant to Section
11.03, (iv) a copy of each amendment to this Agreement and (v) any
Opinion of Counsel delivered to the Owner Trustee pursuant to Section
16.02(i).
(b) The Owner Trustee hereby expresses its intention to
deliver promptly to each Rating Agency (i) a copy of each annual
certified public accountant's report received by the Owner Trustee
pursuant to Section 8.14, (ii) a copy of each amendment to this
Agreement and (iii) a copy of the notice of termination of the Trust
provided to the Owner Trustee pursuant to Section 15.01.
(c) For purposes of delivery pursuant to paragraphs (a)
and (b) of this Article V, the addresses for the Rating Agencies are:
(d) The provisions of this Article V are included herein
for convenience of reference only and shall not be construed to be
contractual undertakings or obligations. The failure of the Servicer or
the Owner Trustee to comply with any or all of the provisions of this
Article V shall not constitute an Event of Servicer Default or a
default of any kind under this Agreement or make any remedy available
to any Person.
ARTICLE VI
AGENT FOR SERVICE
SECTION 6.01 Agent for Service. The agent for service for the
Transferor shall be __________, Vice President of the Transferor. Any and all
service on the agent for service of the Transferor shall be sent to Bay View
Transaction Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such
other address as the Transferor shall provide notice thereof pursuant to
Sections 16.02(c) or 16.05.
The agent for service for the Servicer shall be __________, Vice
President of the Servicer. Any and all service on the agent for service of the
Servicer shall be sent to Bay View Acceptance Corporation, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
TRUST AND SERVICING AGREEMENT
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ARTICLE VII
THE RECEIVABLES
SECTION 7.01 Representations and Warranties of Transferor.
(a) Pursuant to Article III, the Transferor has assigned
to the Trust the benefit of, and its rights respecting, the
representations and warranties made to the Transferor in the Purchase
Agreement as to the Receivables on which the Owner Trustee relies in
accepting the Receivables in trust and executing and authenticating the
Certificates and executing and delivering the Indenture and on which
the Insurer will rely in issuing the Policy. The Transferor agrees that
the representations shall also be for the benefit of the Secured
Parties. Such representations and warranties speak as of the execution
and delivery of the Purchase Agreement but shall survive the sale,
transfer, and assignment of the Receivables to the Owner Trustee.
(b) The Transferor hereby represents and warrants to the
Owner Trustee that it has entered into the Purchase Agreement with
BVAC, that BVAC has made the representations and warranties set forth
therein, that such representations and warranties run to and are for
the benefit of the Transferor, and that pursuant to Article III of this
Agreement the Transferor has transferred and assigned to the Owner
Trustee all rights of the Transferor to cause BVAC under the Purchase
Agreement to repurchase Receivables in the event of a breach of such
representations and warranties.
(c) The foregoing provisions of this Section 7.01 are
intended to grant the Trust and its assignees a direct right against
BVAC to demand performance of its obligations under the Purchase
Agreement.
(d) It is the intention of the Transferor that the
transfer and assignment herein contemplated, taken as a whole,
constitute a sale of the Receivables from the Transferor to the Trust
and that the beneficial interest in and title to the Receivables not be
part of the receivership estate in the event of the appointment of a
receiver for the Transferor. In the event that a court of competent
jurisdiction were to conclude that the transfer of Receivables
constitutes a grant of a security interest rather than a sale of the
Receivables, this Agreement and the transactions provided for herein
shall be deemed to constitute a grant by the Transferor to the Trust of
a valid continuing first priority security interest in the Receivables
and the proceeds thereof. No Receivable has been sold, transferred,
assigned, or pledged by the Transferor to any Person other than the
Owner Trustee. Immediately prior to the transfer and assignment herein
contemplated, the Transferor had good and marketable title to each
Receivable free and clear of all liens, and, immediately upon the
transfer thereof, the Owner Trustee (for the benefit of the
Certificateholders and the Secured Parties pursuant to the Indenture)
shall have good and marketable title to each Receivable, free and clear
of all liens and rights of others, except for the rights of the
Certificateholders and the Insurer; and the transfer has been perfected
under the UCC. On or prior to the Closing Date, all filings (including,
without limitation, UCC filings) necessary in any jurisdiction to give
the Owner Trustee a first perfected ownership interest in the
Receivables shall have been made.
TRUST AND SERVICING AGREEMENT
18
SECTION 7.02 Repurchase Upon Breach. Each party hereto shall
inform the other parties hereto and the Insurer promptly, in writing, upon the
discovery of any breach of the representations and warranties contained in the
Purchase Agreement. This obligation shall not constitute an obligation on the
part of the Owner Trustee to actively seek to discover any such breaches. Unless
the breach shall have been cured by the second Record Date following the
discovery, BVAC, pursuant to its obligations under the Purchase Agreement, shall
repurchase any Receivable materially and adversely affected by the breach as of
such Record Date (or, at BVAC's option, the first Record Date following the
discovery). In consideration of the purchase of the Receivable, BVAC shall remit
the Purchase Amount, in the manner specified in Section 9.03. The sole remedy of
the Owner Trustee, the Trust, or the Indenture Trustee with respect to a breach
of the representations and warranties referred to in Section 7.01 shall be to
require BVAC to repurchase Receivables pursuant to the Purchase Agreement and
this Section 7.02.
SECTION 7.03 Custody of Receivable Files. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Owner Trustee, upon the execution and delivery of the Agreement, hereby
irrevocably appoints the Servicer, and the Servicer hereby accepts such
appointment, for the benefit of the Trust and the Indenture Trustee, to act as
the agent of the Owner Trustee as custodian of the following documents or
instruments which are hereby constructively delivered to the Owner Trustee with
respect to each Receivable:
(i) The original of the Receivable.
(ii) The original credit application fully executed by the
Obligor.
(iii) The original certificate of title or such documents
that the Transferor or Servicer shall keep on file,
in accordance with its customary procedures,
evidencing the security interest of the Transferor in
the Financed Vehicle.
(iv) Any and all other documents that the Servicer or the
Transferor shall keep on file, in accordance with its
customary procedures, relating to a Receivable, an
Obligor, or a Financed Vehicle.
SECTION 7.04 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as
custodian, shall hold the Receivable Files on behalf of the Owner
Trustee for the use and benefit of all present and future Owner
Trustees, and maintain such accurate and complete accounts, records,
and computer systems pertaining to each Receivable File as shall enable
the Owner Trustee to comply with this Agreement. In performing its
duties as custodian the Servicer shall act with reasonable care, using
that degree of skill and attention that the Servicer exercises with
respect to the receivable files relating to all comparable automotive
receivables that the Servicer services for itself. The Servicer shall
conduct, or cause to be conducted, periodic audits of the Receivable
Files held by it under this Agreement, and of the related accounts,
records, and computer systems, in such a manner as shall enable the
Owner Trustee to verify the accuracy of the Servicer's record keeping.
The Servicer shall promptly report to the Owner Trustee and the
Indenture Trustee any failure on its part to
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19
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; provided, however, notwithstanding
anything to the contrary in Section 7.03 or this Section 7.04, the
Servicer shall not be required to possess the original of Receivables
representing less than 2% of the Original Pool Balance until 30 days
following the Closing Date.
(b) Maintenance of and Access to Records. The Servicer
shall maintain each Receivable File at one of its offices specified in
Schedule B to this Agreement, or at such other office as shall be
specified to the Owner Trustee and the Indenture Trustee by prior
written notice. The Servicer shall make available to the Owner Trustee
and the Indenture Trustee and their duly authorized representatives,
attorneys, or auditors a list of locations of the Receivable Files, the
Receivable Files, and the related accounts, records, and computer
systems maintained by the Servicer at such times as the Owner Trustee
shall instruct.
(c) Release of Documents. Upon instruction from the Owner
Trustee, the Servicer shall release any document in a Receivable File
to the Owner Trustee, the Owner Trustee's agent, or the Owner Trustee's
designee, as the case may be, at such place or places as the Owner
Trustee may designate, as soon as practicable.
SECTION 7.05 Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Responsible Officer of the
Owner Trustee.
SECTION 7.06 Custodian's Indemnification. The Servicer, shall
indemnify the Trust, the Owner Trustee and the Indenture Trustee (which shall
include, for purposes of this Section 7.06, their directors, officers, employees
and agents) for any and all liabilities, obligations, losses, compensatory
damages, payments, costs, or expenses of any kind whatsoever that may be imposed
on, incurred, or asserted against the Trust, the Owner Trustee or the Indenture
Trustee as the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer of the Receivable Files; provided,
however, that the Servicer shall not be liable for any portion of any such
amount resulting from the willful misfeasance, bad faith, or negligence of the
Owner Trustee or the Indenture Trustee. This indemnity shall survive the
termination of this Agreement and the resignation or removal of the Owner
Trustee or the Indenture Trustee.
SECTION 7.07 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section
7.07. If the Servicer shall resign in accordance with the provisions of this
Agreement or if all of the rights and obligations of the Servicer shall have
been terminated under Section 13.01, the appointment of the Servicer as
custodian may be terminated by the Owner Trustee with the consent of the
Indenture Trustee and the Insurer (so long as the Insurer is not in default of
its obligations under the Policy). In addition, the Owner Trustee may terminate
the Servicer's appointment as custodian with cause at any time upon written
notification to the Servicer and the Indenture Trustee. As soon as practicable
after any termination of such appointment, the Servicer shall deliver the
Receivable Files to the Owner
TRUST AND SERVICING AGREEMENT
20
Trustee or the Owner Trustee's agent at such place or places as the Owner
Trustee, with the consent of the Insurer and the Indenture Trustee, may
reasonably designate.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 8.01 Duties of Servicer.
(a) The Servicer, for the benefit of the Trust and the Secured
Parties, shall manage, service, administer, and make collections on the
Receivables with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable
automotive receivables that it services for itself. The Servicer's
duties shall include collection and posting of all payments, making
Advances (in the Servicer's sole discretion), responding to inquiries
of Obligors or of federal, state or local governmental authorities with
respect to the Receivables, investigating delinquencies, sending
payment coupons to Obligors, accounting for collections, and furnishing
monthly and annual statements to the Owner Trustee and the Indenture
Trustee with respect to distributions. The Servicer shall follow its
customary standards, policies, and procedures in performing its duties
as Servicer. Without limiting the generality of the foregoing, the
Servicer is authorized and empowered by the Owner Trustee to execute
and deliver, on behalf of itself, the Trust, the Owner Trustee, the
Indenture Trustee or any of them, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge,
and all other comparable instruments, with respect to such Receivables
or to the Financed Vehicles securing such Receivables. If the Servicer
shall commence a legal proceeding to enforce a Receivable or a
Charged-Off Receivable, the Owner Trustee and the Indenture Trustee
shall thereupon be deemed to have automatically assigned, solely for
the purpose of collection, such Receivable to the Servicer. The Owner
Trustee and the Indenture Trustee shall execute any documents prepared
by the Servicer and delivered to the Owner Trustee for execution that
are necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(b) The Servicer, unless the Standby Servicer is then acting as
Servicer, in which case the Back-up Servicer (if BVAC is acting as the
Servicer, at its expense, otherwise at the expense of the Trust), shall
obtain on behalf of the Trust all licenses, if any, required by the
laws of any jurisdiction to be held by the Trust in connection with
ownership of the Receivables, and shall make all filings and pay all
fees as may be required in connection therewith during the term hereof.
(c) The Servicer shall furnish to the Owner Trustee, the Indenture
Trustee and the Insurer from time to time such additional information
regarding the Trust as the Owner Trustee, the Indenture Trustee, or the
Insurer shall reasonably request.
SECTION 8.02 The Back-up Servicer.
(a) Prior to assuming any of the Servicer's rights and obligations
and acting as successor Servicer hereunder, the Back-up Servicer shall
only be responsible to perform
TRUST AND SERVICING AGREEMENT
21
those duties specifically imposed upon it by the provisions hereof, and
shall have no obligations or duties under any agreement to which it is
not a party.
(b) Subject to the Back-up Servicer's obligations pursuant to this
Section 8.02, prior to assuming any of the Servicer's rights and
obligations hereunder, the Back-up Servicer shall not be required to
expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if the repayment of such funds or adequate
written indemnity against such risk or liability is not reasonably
assured to it in writing prior to the expenditure or risk of such funds
or incurrence of financial liability. Notwithstanding any provision to
the contrary, the Back-up Servicer, in its capacity as such, and not in
its capacity as successor Servicer, shall not be liable for any
obligation of the Servicer contained in this Agreement so long as the
Back-up Servicer performs in such capacity, and the parties shall look
only to the Servicer to perform such obligations. The Back-up Servicer
shall have no responsibility or liability in connection with the
perfection or maintenance of a security interest in the Receivables.
(c) The Servicer shall have no liability, direct or indirect, to
any party, for the acts or omissions of the Back-up Servicer, whenever
such acts or omissions occur or whenever such liability is imposed.
(d) Notwithstanding anything to the contrary herein, the
Controlling Party shall have the right in its sole and absolute
discretion to remove and replace the Back-up Servicer. In the event
that the Controlling Party exercises its right to remove and replace
[__________] as Back-up Servicer, [__________] shall have no further
obligation to perform the duties of the Back-up Servicer under this
Agreement except as set forth in Section 12.02.
(e) To the extent the Back-up Servicer and the Indenture Trustee
are the same party, the Back-up Servicer may resign under this
Agreement upon 90 days' prior written notice to the Servicer, the
Insurer and the Standby Servicer, and only to the extent such party is
also resigning or being removed as Indenture Trustee hereunder or under
the Indenture.
SECTION 8.03 The Standby Servicer.
(a) Prior to assuming any of the Servicer's rights and obligations
hereunder, the Standby Servicer shall only be responsible to perform
those duties specifically imposed upon it by the provisions hereof, and
shall have no obligations or duties under any agreement to which it is
not a party.
(b) Prior to assuming any of the Servicer's rights and obligations
hereunder, the Standby Servicer shall not be required to expend or risk
its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights
or powers, if the repayment of such funds or adequate written indemnity
against such risk or liability is not reasonably assured to it in
writing prior to the expenditure or risk of such funds or incurrence of
financial liability. Notwithstanding
TRUST AND SERVICING AGREEMENT
22
any provision to the contrary, the Standby Servicer, in its capacity as
such, and not in its capacity as successor Servicer, shall not be
liable for any obligation of the Back-up Servicer or the Servicer
contained in this Agreement so long as the Standby Servicer performs in
such capacity, and the parties shall look only to the Servicer and the
Back-up Servicer to perform such obligations.
(c) The Servicer shall have no liability, direct or indirect, to
any party, for the acts or omissions of the Standby Servicer, whenever
such acts or omissions occur or whenever such liability is imposed.
(d) Notwithstanding anything to the contrary herein, the
Controlling Party shall have the right, with or without cause, to
remove the Standby Servicer in its sole discretion and replace the
Standby Servicer. In the event that the Controlling Party exercises its
right to remove and replace the Standby Servicer, such Person shall
have no further obligation to perform the duties of the Standby
Servicer under this Agreement except as set forth in Section 12.02.
SECTION 8.04 Retention and Termination of Servicer. The Servicer
hereby covenants and agrees to act as such under this Agreement for an initial
term, commencing on the Closing Date and ending on __________, which term may be
extended by written notice delivered by the Insurer, so long as the Insurer is
the Controlling Party, for successive three month periods ending on each
successive three month period (or, pursuant to revocable written standing
instructions from time to time to the Servicer and the Indenture Trustee,
extended for any specified number of terms greater than one), until the
termination of the Issuer. If an Insurer Default shall have occurred and be
continuing, such term will automatically be renewed unless the Majority
Noteholders vote to remove the Servicer. Any such notice (including each notice
pursuant to standing instructions, which, if delivered, shall be deemed
delivered at the end of successive monthly terms for so long as such
instructions are in effect) (a "Servicer Extension Notice") shall be delivered
by the Insurer to the Indenture Trustee and the Servicer. The Servicer hereby
agrees that, as of the date hereof and upon its receipt of any such Servicer
Extension Notice, the Servicer shall become bound, for the initial term
beginning on the date hereof and for the duration of the term covered by such
Servicer Extension Notice, the Servicer shall become bound, for the initial term
beginning on the date hereof and for the duration of the term covered by such
Servicer Extension Notice, to continue as the Servicer subject to and in
accordance with the other provisions of this Agreement. The Servicer's terms
shall not be extended unless a Servicer Extension Notice is received on or
before the last day of such term. This Section shall not apply to the Back-up
Servicer or the Standby Servicer.
SECTION 8.05 Collection of Receivable Payments.
(a) Consistent with the standards, policies and procedures
required by this Agreement, the Servicer shall make reasonable efforts
to collect all payments called for under the terms and provisions of
such Receivables as and when the same shall become due and shall follow
such collection procedures as it follows with respect to all comparable
automotive receivables that it services for itself or others and, in
any event, with no less degree of skill and care than would be
exercised by a prudent servicer of similar motor vehicle retail
installment sales contracts and installment sale loan
TRUST AND SERVICING AGREEMENT
23
and security agreements. If payments are modified, adjusted or extended
in the ordinary course of the Servicer's collection procedures, and, as
a result, any Receivable would be outstanding at the Stated Final
Payment Date, then the Servicer shall be obligated to purchase such
Receivable pursuant to Section 8.10 (unless such Receivable is
otherwise being purchased pursuant to Section 15.02) as of the last day
of the Collection Period immediately preceding the Stated Final Payment
Date. The Servicer may in its discretion waive any late payment charge
or any other fees that it is entitled to retain under Section 8.11, or
other fee (to the extent consistent with its credit and collection
policy on the Closing Date) that may be collected in the ordinary
course of servicing a Receivable.
(b) All allocations of payments with respect to a simple-interest
Receivable to principal and interest and determinations of periodic
charges and the like shall be made using the simple interest method,
based on either the actual number of days elapsed and the actual number
of days in the calendar year or on the basis of a thirty-day month and
a 360-day calendar year, as specified in the related installment sales
contract or installment loan and security agreement. Each payment on a
simple interest Receivable shall be applied first to the amount of
interest accrued on such Receivable to the date of receipt; second, to
principal due on such Receivable; third, to late charges, if any,
accrued on such Receivable; and last, to reduce the remaining principal
amount outstanding on such Receivable. Payments made by or on behalf of
an Obligor including any Payaheads previously made and added to the
Payahead Balance with respect to a Precomputed Receivable shall be
applied first to overdue Scheduled Payments (including reduction of
Outstanding Advances as provided in Section 9.04). Next, any excess
shall be applied to the Scheduled Payment and any remaining excess
shall be added to the Payahead Balance, and shall be applied to prepay
the Precomputed Receivable, but only if such Payahead Balance shall be
sufficient to prepay the Receivable in full. Otherwise, any such
remaining excess payments shall constitute a Payahead and shall
increase the Payahead Balance.
SECTION 8.06 Realization Upon Receivables.
(a) On behalf of the Trust and the Secured Parties the Servicer
shall use its best efforts, consistent with its customary servicing
procedures, to repossess or otherwise convert the ownership of the
Financed Vehicle securing any Receivable as to which the Servicer shall
have determined that eventual payment in full is unlikely. The Servicer
shall follow such customary and usual practices and procedures as it
shall deem necessary or advisable in its servicing of automotive
receivables, which may include reasonable efforts to realize upon any
recourse to Dealers and selling the Financed Vehicle at public or
private sale. The foregoing shall be subject to the provision that, in
any case in which the Financed Vehicle shall have suffered damage, the
Servicer shall not expend funds in connection with the repair or the
repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession will increase the
Liquidation Proceeds. After appropriate disposition of the Financed
Vehicle, the Servicer shall also take such measures as it deems
reasonable and appropriate to realize value in respect of any
deficiency balance of the Receivable including pursuit of action on
behalf of the Trust and/or the Secured Parties against the Obligor or
public or
TRUST AND SERVICING AGREEMENT
24
private sale of the remaining interest of the Trust and/or the Secured
Parties in such Receivable.
(b) Unless otherwise stated in this Agreement, the Servicer shall
either purchase or liquidate each Financed Vehicle that has not
previously been liquidated and that secures, or previously secured, a
Charged-Off Receivable either (i) by the end of the Collection Period
preceding the final scheduled Payment Date during the life of the Trust
or (ii) if earlier, by the end of the ninth Collection Period following
the Collection Period during which such Receivable became a Charged-Off
Receivable. Any purchase of a Financed Vehicle by the Servicer shall be
made at a price equal to the fair market value of the Financed Vehicle
as determined by the Servicer in accordance with the Servicer's normal
servicing standards.
SECTION 8.07 Physical Damage Insurance. The Servicer, in
accordance with its customary servicing procedures and underwriting standards,
shall require that each Obligor shall have obtained and shall maintain physical
damage insurance covering the Financed Vehicle.
SECTION 8.08 Maintenance of Security Interests in Financed
Vehicles. The Servicer shall, in accordance with its customary servicing
procedures, take such steps as are necessary to ensure that perfection of the
security interest created by each Receivable in the related Financed Vehicle has
been obtained, and to maintain such security interest. The Owner Trustee and the
Indenture Trustee hereby authorize the Servicer to take such steps as are
necessary to re-perfect such security interest on behalf of the Trust in the
event of the relocation of a Financed Vehicle or for any other reason. Without
limiting the forgoing, in the event that the Servicer consigns a repossessed
Financed Vehicle to an affiliate for liquidation, it shall take such measures as
are necessary or appropriate to maintain the security interest in the Financed
Vehicle in the hands of the consignee until such Financed Vehicle is liquidated,
including appropriate precautionary UCC-1 filings. In addition, BVAC and/or such
affiliate will notify the creditors, if any, of such affiliate that have entered
into a consignment arrangement on or before such arrangements are made.
SECTION 8.09 Covenants of Servicer. The Servicer shall not release
a Financed Vehicle securing any Receivable from the security interest granted by
such Receivable in whole or in part except in the event of payment in full by
the Obligor thereunder or repossession, nor shall the Servicer impair the rights
of the Certificateholders or the Secured Parties in the Receivables, nor shall
the Servicer change the amount of the Scheduled Payment under a Receivable or
change the Amount Financed under a Receivable or reduce the Contract Rate of a
Receivable (except if so ordered by a bankruptcy court in a proceeding
concerning the Obligor or otherwise mandated by law).
SECTION 8.10 Purchase of Receivables Upon Breach. The Servicer or
the Owner Trustee shall inform the other party and the Insurer promptly, in
writing, upon the discovery of (i) any breach by the Servicer of its obligations
under Sections 8.01, 8.05, 8.06, 8.07, 8.08 or 8.09 or (ii) the existence of the
Servicer's obligation to purchase a Receivable pursuant to Section 8.05(a). This
obligation shall not constitute an obligation on the part of the Owner Trustee
to discover any such breaches or circumstances. Unless such breach shall have
been cured by the Second Record Date following the discovery or notice of such
breach, the Servicer
TRUST AND SERVICING AGREEMENT
25
shall on such day purchase any Receivable materially and adversely affected by
such breach (or, at the Servicer's election, the first Record Date following the
discovery or notice of such breach). In consideration of the purchase of such
Receivable, the Servicer shall remit the Purchase Amount with respect to such
Receivable in the manner specified in Section 9.03. The sole remedy of the Owner
Trustee, the Trust, or the Secured Parties with respect to the aforementioned
breaches or the grant of an extension which triggers an obligation of the
Servicer under Section 8.05(a) shall be to require the Servicer to purchase
Receivables pursuant to this Section 8.10, except as provided in Section 12.02.
SECTION 8.11 Servicing Fee
(a) The Servicer shall be entitled to a Servicing Fee as defined
herein. The Servicer shall also be entitled to retain, and need not
deposit in the Collection Account, all late fees, prepayment charges
and other administrative fees and expenses or similar charges allowed
by applicable law with respect to the Receivables, collection (from
whatever source) on the Receivables during such Collection Period (the
Supplemental Servicing Fee").
(b) So long as it has not become the Servicer, the Back-up
Servicer shall be entitled to the Back-up Servicing Fee. If it becomes
the Servicer, the Back-up Servicer will be entitled to the Servicing
Fee.
(c) So long as it has not become the Servicer, the Standby
Servicer will be entitled to the Standby Servicer Fee. If it becomes
the Servicer, the Standby Servicer will be entitled to the fee set
forth in Schedule C in its capacity as successor Servicer.
(d) Neither the Indenture Trustee, Back-up Servicer or Standby
Servicer shall be liable for any differential between the Servicing Fee
and the amount necessary to induce a successor servicer to accept its
appointment as such pursuant to this Agreement.
(e) Each of the Servicer, the Back-up Servicer and the Standby
Servicer acknowledge and agree that any fees, expenses, costs,
indemnities and other amounts, including without limitation, Transition
Costs, payable to the servicer, the Back-up Servicer and the standby
Servicer shall not be payable form amounts owed or paid under the
Policy.
SECTION 8.12 Servicer's Certificate. On or before the
Determination Date following each Collection Period, the Servicer shall deliver
to the Owner Trustee, the Indenture Trustee and the Insurer a Servicer's
Certificate in substantially the form of Exhibit 3 attached hereto containing
all information necessary to make the distributions pursuant to Section 8.04 of
the Indenture (so long as the Notes remain outstanding) for the Collection
Period preceding the date of such Servicer's Certificate and all information
necessary for the Indenture Trustee to send statements to the Noteholders,
including (A) the amount of aggregate collections on the Receivables, (B) the
aggregate Purchase Amount of the Receivables repurchased by BVAC and purchased
by the Servicer, (C) with respect to Precomputed Receivables the net deposit
from the Collection Account to the Payahead Account or the net withdrawal from
the Payahead Account to the Collection Account required for the Collection
Period in accordance with Section 9.09,
TRUST AND SERVICING AGREEMENT
26
and in the case of a net withdrawal, the Monthly Interest and Monthly Principal
reported on such Servicer's Certificate shall reflect the portions of such
withdrawal allocable to interest and principal, respectively, in accordance with
this Agreement, (D) the amount of the payment allocable to principal; (E) the
amount of the payment allocable to interest; (F) the amount of the servicing fee
paid to the Servicer with respect to the related Collection Period; (G) the
aggregate principal balance of the Notes as of the payment date after giving
effect to all payments under clause (D) above on such date; (H) the balance of
any Spread Account or other form of credit enhancement, after giving effect to
any additions thereto or withdrawals therefrom or reductions thereto to be made
on the following payment date; (I) the aggregate net losses on the Receivables
for the related Collection Period; (J) the amount of Advances from the Servicer
for such Collection Period; the aggregate amount of Outstanding Advances for
such Collection Period; and the amount of Advances reimbursed to the Servicer
for such Collection Period based on the fact that the related Receivable became
a Charged-off Receivable during the prior Collection Period; (K) the amount, if
any, to be withdrawn from the Spread Account and the amount, if any, to be drawn
on the Policy, (L) information respecting (i) delinquent Receivables that are
30, 60 and 90 days past due, and (ii) the number of repossessions of Financed
Vehicles during the preceding Collection Period, number of unliquidated
repossessed Financed Vehicles, gross and net losses on the Receivables, and
Recoveries; and (M) each other item listed in Section 8.04 of the Indenture
reasonably requested by a Rating Agency, the Indenture Trustee or the Insurer in
order to monitor the performance of the Receivables. Receivables purchased by
BVAC as of the last day of such Collection Period shall be identified by the
BVAC account number with respect to such Receivable (as specified in Schedule A
to this Agreement).
SECTION 8.13 Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee, the Standby Services, the Back-up Servicer, the Rating
Agencies, and the Insurer, on or before April 30 of each year,
beginning on the first April 30 that is at least six months after the
Closing Date, an Officers' Certificate, dated as of December 31 of the
preceding year, stating that (i) a review of the activities of the
Servicer during the preceding 12-month period (or in the case of the
initial Officer's Certificate, the period from the Closing Date to and
including the date of such Officer's Certificate) 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, the Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to such officer and the nature and status thereof. A copy of such
certificate and the report referred to in Section 8.14 may be obtained
by any Certificateholder at its own expense by a request in writing to
the Owner Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to a Responsible Officer of the
Owner Trustee, the Indenture Trustee, the Standby Servicer, the Back-up
Servicer, the Rating Agencies, and the Insurer, promptly after having
obtained knowledge thereof, but in no event later than 5 Business Days
thereafter, written notice in an Officers' Certificate of any event
which with the giving of notice or lapse of time, or both, would become
an Event of Servicer Default under Section 13.01. The Transferor or
BVAC shall deliver to a
TRUST AND SERVICING AGREEMENT
27
Responsible Officer of the Owner Trustee, the Indenture Trustee, the
Standby Servicer, the Back-up Servicer, the Rating Agencies, and the
Insurer, promptly after having obtained knowledge thereof, but in no
event later than 5 Business Days thereafter, written notice in an
Officers' Certificate of any event which with the giving of notice or
lapse of time, or both, would become an Event of Servicer Default under
clause (ii) of Section 13.01.
SECTION 8.14 Annual Independent Certified Public Accountant's
Report
(a) The Servicer shall cause a firm of independent certified
public accountants, who may also render other services to the Servicer,
to deliver to the Owner Trustee, the Indenture Trustee, the Standby
Servicer, the Back-up Servicer, the Rating Agencies and the Insurer on
or before September 30 of each year concerning the 12-month period
ended June 30 of such year (or shorter period since the date of this
Agreement), beginning on the first September 30 following the first
June 30 after the Closing Date, a report addressed to the Board of
Directors of the Servicer to the effect that such firm has reviewed the
servicing of the Receivables by the Servicer and that such review (1)
included tests relating to new or used automobile, van, light-duty
truck, recreational vehicle or motorcycle loans serviced for others in
accordance with the requirements of the Uniform Single Audit Program
for Mortgage Bankers, to the extent the procedures in such program are
applicable to the servicing obligations set forth in the Agreement, and
(2) except as described in the report, disclosed no exceptions or
errors in the records relating to automobile, van, light-duty truck,
recreational vehicle or motorcycle loans serviced for others that, in
the firm's opinion, paragraph four of such program requires such firm
to report.
(b) The report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of
the American Institute of Certified Public Accountants.
(c) If the Standby Servicer is then acting as the successor
Servicer, it shall only be required to provide a copy of its annual SAS
70 report and its audited financial statements.
SECTION 8.15 Access to Certain Documentation and Information
Regarding Receivables. The Servicer shall provide to the Owner Trustee,
Indenture Trustee, the Standby Servicer, the Backup Servicer, the Rating
Agencies, and the Insurer access to the Receivables Files in such cases where
such parties shall be required by applicable statutes or regulations to review
such documentation. Access shall be afforded without charge, but only upon
reasonable request and during the normal business hours at the respective
offices of the Servicer. Nothing in this Section shall affect the obligation of
the Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors, and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section 8.15.
SECTION 8.16 Servicer Expenses. The Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of
TRUST AND SERVICING AGREEMENT
28
independent accountants, taxes imposed on the Servicer, and expenses incurred in
connection with regular payments and reports to Noteholders, the Indenture
Trustee and the Insurer.
SECTION 8.17 Reports to Noteholders. The Owner Trustee shall
provide to any Noteholder who so requests in writing (addressed to the Corporate
Trust Office) a copy of any certificate described in Section 8.12, the annual
statement described in Section 8.13, or the annual report described in Section
8.14. The Indenture Trustee may require the requesting party to pay a reasonable
sum to cover the cost of the Indenture Trustee's complying with such request.
ARTICLE IX
COLLECTIONS; DISTRIBUTIONS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
SECTION 9.01 Collection Account. The Transferor shall establish
the Collection Account with an Eligible Bank as a segregated trust account in
the name of the Trust for the benefit of the Secured Parties with the Indenture
Trustee (at the Indenture Trustee Office) or another Eligible Bank. The Servicer
shall direct the Indenture Trustee to invest the amounts in the Collection
Account in Eligible Investments that mature not later than the Business Day
prior to the next succeeding Payment Date and to hold such Eligible Investments
to maturity. The Indenture Trustee (or its custodian) shall (i) maintain
possession of any negotiable instruments or securities evidencing Eligible
Investments until the time of sale or maturity and each certificated security or
negotiable instrument evidencing an Eligible Investment shall be endorsed in
blank or to the Indenture Trustee or registered in the name of the Owner Trustee
and (ii) cause any Eligible Investment represented by an uncertificated security
to be registered in the name of the Indenture Trustee.
SECTION 9.02 Collections.
(a) The Servicer shall remit to the Collection Account all
payments by or on behalf of the Obligors on the Receivables and all
Liquidation Proceeds, both as collected during the Collection Period
net of Servicing Fees and administrative fees allowed to be retained by
the Servicer pursuant to Section 8.11 and net of charge backs
(attributable to errors in posting, returned checks, or rights of
offset for amounts that should not have been paid or that must be
refunded as the result of a successful claim or defense under
bankruptcy or similar laws) not later than the second Business Day
following the Business Day on which such amounts are received by the
Servicer. Notwithstanding the foregoing, for so long as (a) BVAC
remains the Servicer, (b) no Event of Default shall have occurred and
be continuing and (c)(1) BVAC maintains a short-term rating of at least
A-1 by Standard & Poor's and P-1 by ▇▇▇▇▇'▇ (and for five Business Days
following a reduction in either such rating) or (2) prior to ceasing
daily remittances, the Rating Agency Condition shall have been
satisfied (and any conditions or limitations imposed by the Rating
Agencies in connection therewith are complied with) and the prior
written consent of the Insurer (not to be unreasonably withheld) shall
have been obtained, the Servicer may remit all such payments and
Liquidation Proceeds with respect to any Collection Period to the
Collection Account on a less frequent basis, but in no event later than
the Determination Date immediately preceding each Payment Date. The
Servicer
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shall remit any Advances with respect to a Collection Period to the
Collection Account on or before the Determination Date.
(b) The Servicer, the Owner Trustee and/or Indenture Trustee shall
deposit in the Collection Account any funds received by such parties in
respect of funds drawn under the Policy from the Insurer.
(c) If the Available Funds for a Payment Date are insufficient to
pay current and past due Insurance Premiums, or any amounts owing to
the Insurer pursuant to the Insurance Agreement including, without
limitation, reimbursements, indemnities, fees and expenses, plus
accrued interest thereon, to the Insurer, the Servicer shall notify the
Owner Trustee and the Indenture Trustee of such deficiency, and the
Available Spread Amount, if any, then on deposit in the Spread Account
(after giving effect to any withdrawal to satisfy a deficiency in
Monthly Interest or Monthly Principal) shall be available to cover such
deficiency.
SECTION 9.03 Additional Deposits
(a) (i) Not later than the Determination Date, the Servicer or
BVAC shall remit to the Collection Account the aggregate Purchase
Amount for such Collection Period pursuant to Sections 7.02 and 8.10;
and (ii) not later than 11:00 a.m. (New York City time) on the related
Payment Date, the Servicer shall remit to the Collection Account the
Optional Disposition Price for Receivables on such Payment Date
pursuant to section 15.02.
(b) Following the acceleration of the Notes pursuant to Section
5.02 of the Indenture, any proceeds of the Pledged Assets shall be
deposited in the Collection Account to be distributed by the Indenture
Trustee in accordance with Section 8.04(g) of the Indenture.
(c) On or before each Payment Date, the Indenture Trustee shall
transfer to the Collection Account any amounts transferred to the
Indenture Trustee from the Spread Account.
(d) On or before the Redemption Date, the Indenture Trustee shall
deposit in the Collection Account the Redemption Price paid by or on
behalf of the Issuer pursuant to Article XI of the Indenture.
SECTION 9.04 Application of Funds.
(a) On each Determination Date, the Servicer shall determine the
amount of Available Funds and the amount of funds necessary to make the
distributions required pursuant to Section 8.04(a) of the Indenture on
the next Payment Date. The Servicer shall by a Servicer's Certificate
on or before the Determination Date notify the Owner Trustee, the
Indenture Trustee and the Insurer of such amounts by telecopy to the
Corporate Trust Office, the Indenture Trustee Office and the address of
the Insurer set forth in Section 16.05 or to such numbers as the Owner
Trustee, Indenture Trustee or the
TRUST AND SERVICING AGREEMENT
30
Insurer may from time to time provide, followed promptly by mailing
such notice to the Owner Trustee, the Indenture Trustee and the
Insurer.
(b) On any Payment Date on which there are not sufficient
Available Funds to make the distributions required pursuant to Section
8.04(a)(i) through (viii) of the Indenture, the Indenture Trustee, or
the Servicer on its behalf, shall withdraw from the Spread Account, to
the extent of the Available Spread Amount, an amount equal to such
deficiency and promptly deposit such amount in the Collection Account.
If such deficiency exceeds the Available Spread Amount, the Servicer
shall submit a claim under the Policy to the Insurer pursuant to
Section 9.03 of the Indenture. All amounts paid under the Policy shall
be applied by the Indenture Trustee pursuant to Section 8.04 of the
Indenture.
(c) On each Payment Date, the Owner Trustee shall distribute to
each Certificateholder such Certificateholder's interest and principal,
if any, for such Distribution Date, as received from the Indenture
Trustee pursuant to Section 8.04 of the Indenture on such Distribution
Date.
(d) On each Payment Date, the Owner Trustee shall send to the
Certificateholder the Servicer's Certificate provided to the Owner
Trustee by the Servicer for such Payment Date.
(e) Subject to Section 15.01, distributions required to be made to
Certificateholders on any Payment Date shall be made to each
Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate
facilities therefor, or by check mailed to such Certificateholder at
the address of such Certificateholder appearing in the Certificate
Register.
SECTION 9.05 Advances
(a) (i) As of the last day of the initial Collection Period, the
Servicer shall advance funds equal to the excess, if any, of Monthly
Interest due in respect of the initial Collection Period, over the
Collected Interest for such Collection Period; and (ii) as of the last
day of each subsequent Collection Period, the Servicer shall advance
funds in the amount of the Interest Advance Amount (or such other
amount as the Servicer shall reasonably determine to cover an Interest
Shortfall) with respect to each Receivable that is delinquent for more
than 30 days, in each such case, to the extent that the Servicer, in
its sole discretion, determines that the Advance will be recoverable
from payments by or on behalf of the Obligor, the Purchase Amount, or
Liquidation Proceeds. With respect to each Receivable, the Advance paid
pursuant to this Section 9.05 shall increase Outstanding Advances.
Outstanding Advances shall be reduced by subsequent payments by or on
behalf of the Obligor, collections of Liquidation Proceeds, or payments
of the Purchase Amount. The Servicer shall remit any Advances with
respect to a Collection Period to the Collection Account by the related
Determination Date.
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(b) If the Servicer shall determine that an Outstanding Advance
with respect to any Receivable shall not be recoverable, the Servicer
shall be reimbursed from any collections made on other Receivables in
the Trust, and Outstanding Advances with respect to such Receivable
shall be reduced accordingly.
(c) No successor Servicer shall be obligated to make advances
under this Agreement and shall not be liable for Advances incurred by
the Servicer before the commencement of performance by such successor
Servicer.
SECTION 9.06 Net Deposits. For so long as Bay View Acceptance
Corporation is the Servicer, Bay View Acceptance Corporation (in whatever
capacity) may make the remittances with respect to any Payment Date pursuant to
Section 9.02 above, net of amounts to be distributed to itself or its delegee
under Section 12.06 (also in whatever capacity), if it determines pursuant to
Section 9.02 that there is no deficiency in Available Funds for such Payment
Date. Nonetheless, the Servicer shall account for all of the above described
amounts as if such amounts were deposited and distributed.
SECTION 9.07 No Segregation of Moneys; No Interest. Subject to
Section 9.04, moneys received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law or this Agreement
and may be deposited under such general conditions as may be prescribed by law,
and the Owner Trustee shall not be liable for any interest thereon.
SECTION 9.08 Accounting and Reports to the Certificateholder, the
Internal Revenue Service and Others. The Owner Trustee shall deliver to the
Certificateholder, as may be required by the Code and applicable Treasury
Regulations, or as may be requested by such Certificateholder, such information,
reports or statements as may be necessary to enable each Owner to prepare its
federal and state income tax returns. Consistent with the Trust's
characterization for tax purposes as a security arrangement for the issuance of
non-recourse debt so long as the Transferor or any other Person is the sole
beneficiary owner of the Trust, no federal income tax return shall be filed on
behalf of the Trust unless either (i) the Owner Trustee shall receive an Opinion
of Counsel that, based on a change in applicable law occurring after the date
hereof, or as a result of a transfer by the Company permitted by Section 10.03,
the Code requires such a filing or (ii) the Internal Revenue Service shall
determine that the Trust is required to file such a return. In the event that
there shall be two or more beneficial owners of the Trust, the Owner Trustee
shall inform the Indenture Trustee in writing of such event, (x) the Owner
Trustee shall prepare or shall cause to be prepared federal and, if applicable,
state or local partnership tax returns required to be filed by the Trust and
shall remit such returns to the Transferor (or if the Transferor no longer owns
the Certificate, to the Transferor to the extent its tax liability is affected
thereby and otherwise to the successor Certificateholder) at least (5) days
before such returns are due to be filed, and (y) capital accounts shall be
maintained for each beneficial owner in accordance with the Treasury Regulations
under Section 704(b) of the Code reflecting each such beneficial owner's share
of the income, gains, deductions, and losses of the Trust and/or guaranteed
payments made by the Trust and contributions to, and distributions from, the
Trust. The Transferor (or such successor Certificateholder, as applicable) shall
promptly sign such returns and deliver such returns after signature to the Owner
Trustee and such returns shall be filed by the Owner Trustee with the
appropriate tax authorities. In the event
TRUST AND SERVICING AGREEMENT
32
that a "tax matters partner" (within the meaning of Code Section 6231(a)(7)) is
required to be appointed with respect to the Trust, the Transferor is hereby
designated as tax matters partner or, if the Transferor is not the
Certificateholder, the Transferor to the extent its tax liability is affected
thereby and otherwise the successor Certificateholder, shall be designated as
tax matters partner. In no event shall the Owner Trustee or the Transferor (or
such designee Certificateholder, as applicable) be liable for any liabilities,
costs or expenses of the Trust or the Noteholders arising out of the application
of any tax law, including federal, state, foreign or local income or excise
taxes or any other tax imposed on or measured by income (or any interest,
penalty or addition with respect thereto or arising from a failure to comply
therewith) except for any such liability, cost or expense attributable to any
act or omission by the Owner Trustee or the Transferor (or such designee
Certificateholder as applicable), as the case may be, in breach of its
obligations under this Agreement.
SECTION 9.09 Payahead Account. The Servicer shall establish the
Payahead Account in the name of the Trust on behalf of the Obligors, the
Noteholders and the Insurer as their interests may appear. The Servicer shall
maintain the Payahead Account pursuant to Section 8.07 of the Indenture.
ARTICLE X
THE CERTIFICATES
SECTION 10.01 The Certificates. The Certificates shall be issued in
the form of one or more certificates and shall initially be issued to the
Transferor. The Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of a Responsible Officer of the Owner Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be valid and binding obligations of the Trust,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such Certificates.
SECTION 10.02 Authentication of Certificates. The Owner Trustee
shall cause the Certificates to be executed on behalf of the Trust,
authenticated, and delivered to or upon the written order of the Transferor,
signed by its chairman of the board, its president, or any vice president,
without further corporate action by the Transferor, in authorized denominations,
pursuant to this Agreement. No Certificate shall entitle its holder to any
benefit under this Agreement, or shall be valid for any purpose, unless there
shall appear on such Certificate a certificate of authentication, substantially
as set forth in the forms of Certificate attached as Exhibits to this Agreement,
executed by a Responsible Officer of the Owner Trustee by manual signature; such
authentication shall constitute conclusive evidence that such Certificate shall
have been duly authenticated and delivered hereunder. All Certificates shall be
dated the date of their authentication.
SECTION 10.03 Registration of Transfer and Exchange of Certificates
(a) The Owner Trustee shall keep or cause to be kept, at the
Corporate Trust Office, a Certificate Register in which, subject to
such reasonable regulations as it may
TRUST AND SERVICING AGREEMENT
33
prescribe, the Owner Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates subject to
the restrictions provided herein.
(b) Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Owner Trustee shall execute,
authenticate, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations
of a like aggregate amount dated the date of authentication by the
Owner Trustee, provided, however, that registration of transfer of the
Certificates may not be effected unless (A) the Owner Trustee receives
an Opinion of Counsel, satisfactory to it, to the effect that (i) such
transfer may be made in reliance upon an exemption from the
registration requirements of the Securities Act of 1933, as amended,
and (ii) such transfer will not adversely affect the tax treatment of
the Trust or the Notes; (B) the Insurer has consented to such transfer
and (C) the Rating Agency Condition shall have been satisfied with
respect to such transfer.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee duly executed by the
Holder or his attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer and exchange shall be canceled
and subsequently destroyed by the Owner Trustee.
(d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner 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.
SECTION 10.04 Mutilated, Destroyed, Lost, or Stolen Certificates.
If (a) any mutilated Certificate shall be surrendered to the Owner Trustee, or
if the Owner Trustee shall receive evidence to its satisfaction of the
destruction, loss, or theft of any Certificate and (b) there shall be delivered
to the Owner Trustee such security or indemnity as may be required by it to save
it harmless, then in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost, or stolen Certificate, a
new Certificate of like tenor and denomination. In connection with the issuance
of any new Certificate under this Section 10.04, the Owner Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 10.04 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 10.05 Agreement Regarding Tax Matters. The Owner Trustee,
the Transferor as initial Certificateholder and each successor Certificateholder
(as a condition to acquiring its Certificate) agree to disregard the Trust as a
separate entity and to treat the Notes as indebtedness for federal, state and
local income and franchise tax purposes.
TRUST AND SERVICING AGREEMENT
34
SECTION 10.06 Signature on Returns; Tax Matters Partner.
(a) The Transferor shall sign on behalf of the Trust the tax
returns of the Trust.
(b) If Subchapter K of the Code should be applicable to the Trust,
the Transferor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable
Treasury Regulations.
ARTICLE XI
THE TRANSFEROR
SECTION 11.01 Representations and Undertakings of Transferor.
(a) The Transferor makes the following representations on which
the Trust relies in accepting the Receivables in trust and executing
and authenticating the Certificates and undertaking its obligations
under the Indenture. The Transferor agrees that the representations
shall also be for the benefit of the Secured Parties. The
representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Trust
and the subsequent pledge of the receivables to the Indenture Trustee.
(i) Organization and Good Standing. The Transferor is
duly organized and validly existing as a corporation
in good standing under the laws of the State of
Delaware, with power and authority to own its
properties and to conduct its business as such
properties shall be currently owned and such business
is presently conducted, and had at all relevant
times, and shall have, power, authority, and legal
right to acquire and own the Receivables.
(ii) Due Qualification. The Transferor is duly qualified
to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership
or lease of property or the conduct of its business
shall require such qualifications, licenses and/or
approvals, other than where the failure to obtain
such qualification, license or approval would not
have a material adverse effect on the ability of the
Transferor to perform its obligations under this
Agreement, on any Receivable or on the interest
therein of the Issuer, the Noteholders or the Insurer
(iii) Power and Authority. The Transferor has the power and
authority to execute and deliver this Agreement and
to carry out its terms and the execution, delivery,
and performance of the Agreement has been duly
authorized by the Transferor by all necessary
corporate action.
(iv) Binding Obligation. This Agreement shall constitute a
legal, valid, and binding obligation of the
Transferor enforceable in accordance with its terms
except only as such enforcement may be limited by
bankruptcy,
TRUST AND SERVICING AGREEMENT
35
insolvency or similar laws affecting the enforcement
of creditors' rights generally.
(v) No Violation. The consummation of the transactions
contemplated by the Agreement and the fulfillment of
the terms hereof shall not conflict with, result in
any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time)
a default under, the charter or by-laws of the
Transferor, or any indenture, agreement, or other
instrument to which the Transferor is a party or by
which it shall be bound; nor result in the creation
or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture,
agreement, or other instrument (other than this
Agreement); nor violate any law or, to the best of
the Transferor's knowledge, any order, rule, or
regulation applicable to the Transferor of any court
or of any federal or State regulatory body,
administrative agency, or other governmental
instrumentality having jurisdiction over the
Transferor or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the Transferor's best
knowledge, threatened, before any court, regulatory
body, administrative agency, or other governmental
instrumentality having jurisdiction over the
Transferor or its properties: (A) asserting the
invalidity of this Agreement, (B) seeking to prevent
the consummation of any of the transactions
contemplated by this Agreement, (C) seeking any
determination or ruling that might materially and
adversely affect the performance by the Transferor of
its obligations under, or the validity or
enforceability of, this Agreement, or (D) which might
adversely affect the federal income tax attributes of
the Trust.
(vii) No Consents. No consent, approval, authorization or
order of or declaration or filing with any
governmental authority is required to be obtained by
the Transferor for the consummation of the
transactions contemplated by this Agreement, except
such as have been duly made or obtained or where the
failure to obtain such consent, approval,
authorization, order or declaration, or to make such
filing, would not have a material adverse effect on
the ability of the Transferor to perform its
obligations under this Agreement or on any Receivable
or the interest therein of the Issuer, the
Noteholders or the Insurer.
(viii) Valid Assignment. Each Receivable has been validly
assigned by the Transferor to the Issuer on the
Closing Date pursuant to this agreement and no
Receivable has been sold, transferred, assigned or
pledged by the Transferor to any Person other than
the Issuer.
(ix) The Transferor's exact legal name is and for the
preceding four months has been Bay View Transaction
Corporation.
TRUST AND SERVICING AGREEMENT
36
(x) The Transferor's chief executive office is located in
San Mateo, California.
(b) The Transferor further covenants that, prior to
termination of the Trust:
(i) It will not engage at any time in any business or
business activity other than such activities
expressly set forth in its Certificate of
Incorporation delivered to the Insurer on or prior to
the Closing Date, and will not amend its Certificate
of Incorporation without the prior written consent of
the Insurer (so long as the Insurance Agreement has
not been terminated).
(ii) It will not, without the consent of the Insurer (so
long as the Insurance Agreement has not been
terminated), sell, assign, pledge or otherwise
transfer, in whole, or in part or in any series of
related or unrelated transactions any of its right,
title or interest in or to the Certificates.
(iii) It will not:
(A) Fail to do all things necessary to maintain
its corporate existence separate and apart
from BVAC and any other Person, including,
without limitation, holding regular meetings
of its stockholders and board of directors
and maintaining appropriate corporate books
and records (including a current minute
book);
(B) Suffer any limitation on the authority of
its own directors and officers to conduct
its business and affairs in accordance with
their independent business judgment or
authorize or suffer any Person other than
its own officers and directors to
customarily delegated to others under powers
of attorney) for which a corporation's own
Officers and directors would customarily be
responsible;
(C) Fail to (i) maintain or cause to be
maintained by an agent of the Transferor
under the Transferor's control physical
possession of all its books and records,
(ii) maintain capitalization adequate for
the conduct of its business, (iii) account
for and manage all its liabilities
separately from those of any other Person,
including payment by it of all payroll,
administrative expenses and taxes, if any,
from its own assets, (iv) segregate and
identify separately all of its assets from
those of any other Person, (v) to the extent
any such payments are made, pay its
employees, officers and agents for services
performed for the Transferor or (vi)
maintain a separate office address with a
separate telephone number from those of BVAC
or any other affiliate thereof; or
(D) Except as may be provided in this Agreement,
or a similar agreement relating to other
securitizations in which the Transferor has
similar rights and/or obligations, commingle
its funds with
TRUST AND SERVICING AGREEMENT
37
those of BVAC or any affiliate thereof or
use its funds for other than the
Transferor's uses.
SECTION 11.02 Liability of Transferor; Indemnities. The Transferor
shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Transferor under this Agreement.
(i) The Transferor shall indemnify, defend, and hold
harmless the Owner Trustee, the Indenture Trustee,
the Insurer their respective officers, directors,
employees and agents, the Trust and the Noteholders
from and against any taxes that may at any time be
asserted against such parties with respect to, and as
of the date of, the sale of the Receivables to the
Owner Trustee or the issuance and original sale of
the Certificates and the Notes, including any sales,
gross receipts, general corporation, tangible or
intangible personal property, privilege, or license
taxes (but, in the case of the Trust, not including
any taxes asserted with respect to ownership of the
Receivables or federal or other income taxes arising
out of distributions on the Certificates or the
Notes) and costs and expenses in defending against
the same.
(ii) The Transferor shall indemnify, defend, and hold
harmless the Owner Trustee, its officers, directors,
employees and agents and the Trust from and against
any loss, liability, or expense incurred by reason of
(a) the Transferor's willful misfeasance, bad faith,
or negligence in the performance of its duties under
this Agreement, or by reason of reckless disregard of
its obligations and duties under this Agreement and
(b) the Transferor's violation of federal or State
securities laws in connection with the registration
of the sale of the Certificates.
Indemnification under this Section 11.02 shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the Transferor shall have made any indemnity payments to the Owner Trustee or
the Trust pursuant to this Section and the Owner Trustee or the Trust thereafter
shall collect any of such amounts from others, the Owner Trustee or the Trust,
as the case may be, shall repay such amounts to the Transferor, without
interest. This indemnification shall survive the termination of this Agreement
and the resignation or removal of the Owner Trustee or the Indenture Trustee.
SECTION 11.03 Merger or Consolidation of, or Assumption of the
Obligations of Transferor. Any Person (a) into which the Transferor may be
merged or consolidated, (b) which may result from any merger or consolidation to
which the Transferor shall be a party, or (c) which may succeed to all or
substantially all of the properties and assets of the Transferor's business,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Transferor under this Agreement, shall be the
successor to the Transferor hereunder without the execution or filing of any
document or any further act by any of the parties to this Agreement; provided,
however, that (i) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 7.01 shall have been
breached and no Event of Servicer Default, and no event that, after notice or
lapse of time, or
TRUST AND SERVICING AGREEMENT
38
both, would become an Event of Servicer Default shall have happened and be
continuing, (ii) the Transferor shall have delivered to the Owner Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, or succession and such agreement of assumption comply
with this Section 11.03 and that all conditions precedent, if any, provided for
in this Agreement relating to such transaction have been complied with and (iii)
the Transferor shall have delivered 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 the Owner Trustee and
the Indenture 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 preserve and protect such interest. Notwithstanding the
forgoing, the Transferor shall not engage in any merger or consolidation with
any Person, or a disposition of all or substantially all of its assets without
providing advance written notice thereof to the Owner Trustee, the Indenture
Trustee and the Rating Agencies and without obtaining the prior written consent
of the Insurer, so long as the Insurer is the Controlling Party.
SECTION 11.04 Limitation on Liability of Transferor and Others. The
Transferor and any director or officer or employee or agent of the Transferor
may rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Transferor shall not be under any obligation to appear
in, prosecute, or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
ARTICLE XII
THE SERVICER; BACK-UP SERVICER; AND STANDBY SERVICER
SECTION 12.01 Representations and Warranties
(a) The Servicer. The Servicer makes the following
representations on which the Trustee, the Owner Trustee and the
Indenture Trustee rely in accepting the Receivables in trust and
executing and authenticating the Certificates and executing and
delivering the Indenture. The Servicer agrees that the representations
shall also be for the benefit of the Secured Parties. The
representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to the Trust
and the Owner Trustee and the pledge to the Secured Parties pursuant to
the Indenture.
(i) Organization and Good Standing. The Servicer is duly
organized validly existing as a corporation under the
laws of the State of Nevada, with power and authority
to own its properties and to conduct its business as
such properties shall be currently owned and such
business is presently conducted, and had at all
relevant times, and shall have, power, authority, and
legal right to acquire, own, sell, and service the
Receivables and to hold the Receivable Files as
custodian on behalf of the Owner Trustee.
TRUST AND SERVICING AGREEMENT
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(ii) Due Qualification. The Servicer is duly qualified to
do business as a foreign corporation in good
standing, and has 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) requires such
qualifications.
(iii) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and
to carry out its terms; and the execution, delivery,
and performance of this Agreement has been duly
authorized by the Servicer by all necessary corporate
action.
(iv) Binding Obligations. This Agreement constitutes a
legal, valid, and binding obligation of the Servicer
enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in
general and by general principles of equity,
regardless of whether such enforceability shall be
considered in a proceeding in equity or at law.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of
the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time)
a default under, the charter or by-laws of the
Servicer, or any indenture, agreement, or other
instrument to which the Servicer is a party or by
which it shall be bound; nor result in the creation
or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture,
agreement, or other instrument (other than this
Agreement); nor violate any law or, to the best of
the Servicer's knowledge, any order, rule, or
regulation applicable to the Servicer of any court or
of any federal or State regulatory body,
administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer
or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the Servicer's
knowledge, threatened, before any court, regulatory
body, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer
or its properties: (A) asserting the invalidity of
this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated
by this Agreement, (C) seeking any determination or
ruling that might materially and adversely affect the
performance by the Servicer of its obligations under,
or the validity or enforceability of, this Agreement,
or (D) which might adversely affect the federal
income tax attributes of the Trust.
(b) The Back-up Servicer makes the following
representations on which the Trustee, the Owner Trustee and the
Indenture Trustee rely in accepting the Receivables in trust and
executing and authenticating the Certificates and executing and
delivering the
TRUST AND SERVICING AGREEMENT
40
Indenture. The Back-up Servicer agrees that the representations shall
also be for the benefit of the Secured Parties. The representations
speak as of the execution and delivery of this Agreement and shall
survive the sale of the Receivables to the Trust and Owner Trustee and
the pledge to the Secured Parties pursuant to the Indenture.
(i) Organization and Good Standing. The Back-up Servicer
is duly organized and is validly existing as a
banking corporation in good standing under the laws
of the State of [__________], with power and
authority and legal right to own its properties and
to conduct its business as such properties are
currently owned and such business is presently
conducted, and has and had at all relevant times,
full power, authority, and legal right to acquire,
own, sell, and service the Receivables;
(ii) Due Qualification. The Back-up Servicer is duly
qualified to do business as a foreign corporation in
good standing, and has 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 and the
performance of its other obligations under this
Agreement) requires such qualifications except where
such failure will not have a material adverse effect
on the Back-up Servicer, its business or its
properties, or the ability of the Back-up Servicer to
perform its obligations under this Agreement;
(iii) Power and Authority. The Back-up Servicer has the
power and authority to execute and deliver this
Agreement and to carry out its terms; and the
execution, delivery, and performance of this
Agreement has been duly authorized by the Back-up
Servicer by all necessary corporate action;
(iv) Binding Obligations. This Agreement constitutes the
legal, valid, and binding obligation of the Back-up
Servicer enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency,
reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and to
general principles of equity;
(v) No Violation. The execution, delivery and performance
by the Back-up Servicer of this Agreement, and the
consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do
not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the
charter documents of the Back-up Servicer.
(c) The Standby Servicer makes the following
representations on which the Trustee, the Owner Trustee and the
Indenture Trustee rely in accepting the Receivables in trust and
executing and authenticating the Certificates and executing and
delivering the Indenture. The Standby Servicer agrees that the
representations shall also be for the benefit of the Secured Parties.
The representations speak as of the execution and delivery
TRUST AND SERVICING AGREEMENT
41
of this Agreement and shall survive the sale of the Receivables to the
Trust and Owner Trustee and the pledge to the Secured Parties pursuant
to the Indenture.
(i) Organization and Good Standing. The Standby Servicer
is duly organized and is validly existing as a
corporation in good standing under the laws of the
State of [__________], with power and authority and
legal right to own its properties and to conduct its
business as such properties are currently owned and
such business is presently conducted, and has and had
at all relevant times, full power, authority, and
legal right to acquire, own, sell, and service the
Receivables;
(ii) Due Qualification. The Standby Servicer is duly
qualified to do business as a foreign corporation in
good standing, and has 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 and the
performance of its other obligations under this
Agreement) requires such qualifications except where
such failure will not have a material adverse effect
on the Standby Servicer, its business or its
properties, or the ability of the Standby Servicer to
perform its obligations under this Agreement;
(iii) Power and Authority. The Standby Servicer has the
power and authority to execute and deliver this
Agreement and to carry out its terms; and the
execution, delivery, and performance of this
Agreement has been duly authorized by the Standby
Servicer by all necessary corporate action;
(iv) Binding Obligations. This Agreement constitutes the
legal, valid, and binding obligation of the Standby
Servicer enforceable in accordance with its terms,
subject to the effects of bankruptcy, insolvency,
reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and to
general principles of equity;
(v) No Violation. The execution, delivery and performance
by the Standby Servicer of this Agreement, and the
consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do
not conflict with, result in any breach of any of the
terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the
charter documents of the Standby Servicer;
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the Standby Servicer's
best knowledge, threatened, before any court,
regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over
the Standby Servicer or its properties: A) asserting
the invalidity of this Agreement, B) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement, C) seeking any
determination or ruling that might materially and
adversely affect the performance by the Standby
Servicer of its
TRUST AND SERVICING AGREEMENT
42
obligations under, or the validity or enforceability
of, this Agreement, which might adversely affect the
federal income tax attributes of the Trust;
SECTION 12.02 Indemnities of Servicer, Back-up Servicer and Standby
Servicer.
(a) The Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by the
Servicer under this Agreement and no implied duties or obligations
shall be read into this Agreement against the Servicer.
(i) The Servicer shall defend, indemnify, and hold
harmless the Owner Trustee, the Indenture Trustee,
the Insurer, the Standby Servicer, the Back-up
Servicer, and their officers, directors, employees
and agents, the Trust, the Certificateholders and the
Noteholders from and against any and all costs,
expenses, losses, damages, claims, and liabilities,
arising out of or resulting from the use, ownership,
or operation by the Servicer or any affiliate thereof
of a Financed Vehicle.
(ii) The Servicer shall indemnify, defend and hold
harmless the Owner Trustee, the Indenture Trustee,
the Insurer, the Standby Servicer, the Back-up
Servicer, their officers, directors, employees and
agents and the Trust from and against any taxes that
may at any time be asserted against such parties with
respect to the transactions contemplated herein,
including, without limitation, any sales, gross
receipts, general corporation, tangible or intangible
personal property, privilege, or license taxes (but,
in the case of the Trust, not including any taxes
asserted with respect to, and as of the date of, the
sale of the Receivables to the Trust or the issuance
and original sale of the Certificates, the Notes, or
asserted with respect to ownership of the
Receivables, or federal or other income taxes arising
out of distributions on the Certificates or the
Notes) and costs and expenses in defending against
the same.
(iii) The Servicer shall indemnify, defend, and hold
harmless the Owner Trustee, the Indenture Trustee,
the Insurer, the Standby Servicer, the Back-up
Servicer, their officers, directors, employees and
agents, and the Trust, the Certificateholders and the
Noteholders from and against any and all costs,
expenses, losses, claims, damages, and liabilities to
the extent that such cost, expense, loss, claim,
damage, or liability arose out of, or was imposed
upon such parties through, the negligence, willful
misfeasance, or bad faith of the Servicer in the
performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and
duties under this Agreement. This indemnity shall
survive the termination of this Agreement or the
Trust and the resignation or removal of the Owner
Trustee.
(iv) The Servicer shall indemnify, defend, and hold
harmless the Owner Trustee, the Indenture Trustee,
the Insurer, the Standby Servicer, their respective
officers, directors, employees and agents and the
Trust from
TRUST AND SERVICING AGREEMENT
43
and against all costs, expenses, losses, claims,
damages, and liabilities arising out of or incurred
in connection with the acceptance or performance of
the trusts and duties herein contained, except to the
extent that such cost, expense, loss, claim, damage
or liability: (a) shall be due to the willful
misfeasance, bad faith, or negligence of such
indemnified party or the Indenture Trustee; (b)
relates to any tax other than the taxes with respect
to which either the Transferor or Servicer shall be
required to indemnify the Owner Trustee or the
Indenture Trustee; (c) shall arise from the breach of
any of representations or warranties of such
indemnified party; (d) shall be one as to which the
Transferor is required to indemnify the Owner Trustee
or the Indenture Trustee; or (e) shall arise out of
or be incurred in connection with the acceptance or
performance by the Owner Trustee of the duties of
successor Servicer.
Notwithstanding the foregoing, clauses (ii) and (iv) shall not
apply to the Standby Servicer in the event the Standby Servicer becomes
the successor Servicer.
Indemnification by each of the Servicer, the Standby Servicer
or the Back-up Servicer (or any other successor Servicer), as Servicer,
shall be made only with respect to the period that it acts as Servicer
and its acts and omissions while acting as such. Indemnification under
this Section by the Servicer, with respect to the period such Person
was (or was deemed to be) the Servicer, shall survive the termination
of such Person as Servicer or a resignation by such Person as Servicer
as well as the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of litigation. If
the Servicer shall have made any indemnity payments pursuant to this
Section and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts to the
Servicer, without interest.
(b) The Back-up Servicer and the Standby Servicer shall
each be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Back-up Servicer in its
capacity as Back-up Servicer under this Agreement and the Standby
Servicer in its capacity as Standby Servicer under this Agreement, and
no implied duties or obligations shall be read into this Agreement
against the Back-up Servicer or the Standby Servicer. The Back-up
Servicer may fulfill its obligations hereunder as Back-up Servicer
through its agents, nominees and custodians and shall not be liable for
the acts or omissions of such agents, nominees and custodians to the
extent they are appointed with due care by the Back-up Servicer.
Neither the Back-up Servicer nor its employees, directors, agents or
officers shall be liable for any action taken in good faith pursuant to
this Agreement or for errors of judgment not involving willful
misconduct or negligence. The Standby Servicer shall indemnify, defend,
and hold harmless the Trust, the Indenture Trustee, the Insurer, the
Servicer and the Noteholders from and against any and all costs,
expenses, losses, claims, damages, and liabilities to the extent that
such cost, expense, loss, claim, damage, or liability arose out of, or
was imposed upon the Trust, the Indenture Trustee, the Servicer, the
Insurer or the Noteholders through the negligence, willful misconduct
or bad faith of the Standby Servicer, in the performance of its duties
as Standby Servicer under this Agreement, or by reason of reckless
disregard of the Standby Servicer's obligations and duties as Standby
TRUST AND SERVICING AGREEMENT
44
Servicer under this Agreement. In the event that the Standby Servicer
becomes the successor Servicer, the Standby Servicer in its capacity as
successor Servicer, shall be liable in accordance with, and to the
extent set forth in, Section 12.02(a).
(c) Indemnification under this Section 12.02 shall
include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments
pursuant to this Section and the recipient thereafter collects any of
such amounts from others, the recipient shall promptly repay such
amounts to the Servicer, without interest. This indemnification shall
survive the termination of this Agreement and the removal of the
Servicer.
SECTION 12.03 Merger or Consolidation of, or Assumption of the
Obligations of the Servicer, Back-up Servicer and Standby Servicer.
(a) Any Person (i) into which the Servicer may be merged
or consolidated, (ii) which may result from any merger or consolidation
to which the Servicer shall be a party, or (iii) which may succeed to
all or substantially all of the properties and assets of the Servicer's
indirect automobile financing and receivables servicing business, which
Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Servicer hereunder, shall
be the successor to the Servicer under this Agreement without further
act on the part of any of the parties to this Agreement; provided,
however, that (A) immediately after giving effect to such transaction,
no Event of Servicer Default, and no event which, after notice or lapse
of time, or both, would become an Event of Servicer Default shall have
happened and be continuing, (B) the Servicer shall have delivered to
the Owner Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section 12.03 and that all
conditions precedent provided for in this Agreement relating to such
transaction have been complied with and (C) the Servicer shall have
delivered an Opinion of Counsel either (1) 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 the Owner Trustee and the
Secured Parties in the Receivables, and reciting the details of such
filings, or (2) stating that, in the opinion of such Counsel, no such
action shall be necessary to preserve and protect such interest.
Notwithstanding the forgoing, the Servicer shall not engage in any
merger or consolidation in which it is not the surviving corporation
without the prior written consent of the Insurer, not to be
unreasonably withheld.
(b) Any Person (i) into which the Back-up Servicer may be
merged or consolidated, (ii) which may result from any merger or
consolidation to which the Back-up Servicer shall be a party, (iii)
which may succeed to the properties and assets of the Back-up Servicer
substantially as a whole or (iv) succeeding to the business of the
Back-up Servicer, shall execute an agreement of assumption to perform
every obligation of the Back-up Servicer hereunder, and whether or not
such assumption agreement is executed, shall be the successor to the
Back-up Servicer under this Agreement without further act on the part
of any of the parties to this Agreement; provided, however, that
nothing herein shall be deemed to release the Back-up Servicer from any
obligation. In
TRUST AND SERVICING AGREEMENT
45
connection with any transaction described above, the Back-up Servicer
must comply with the provisions of this Section 12.03 as if it were
then acting as Servicer.
(c) Any Person (i) into which the Standby Servicer may be
merged or consolidated, (ii) which may result from any merger or
consolidation to which the Standby Servicer shall be a party, (ii)
which may succeed to the properties and assets of the Standby Servicer
substantially as a whole or (iv) succeeding to the business of the
Standby Servicer, shall execute an agreement of assumption to perform
every obligation of the Standby Servicer hereunder, and whether or not
such assumption agreement is executed, shall be the successor to the
Standby Servicer under this Agreement without further act on the part
of any of the parties to this Agreement; provided, however, that
nothing herein shall be deemed to release the Standby Servicer from any
obligation. In connection with any transaction described above, the
Standby Servicer must comply with the provisions of this Section 12.03
as if it were then acting as Servicer.
SECTION 12.04 Limitation on Liability of Servicer and Others.
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Trust, the Indenture
Trustee, the Certificateholders or the Noteholders, except as provided under
this Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement; provided, however, that this provision shall
not protect the Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith, or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties under this Agreement. The Servicer and any director or officer or
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement.
Except as provided in this Agreement, the Servicer shall not be under
any obligation to appear in, prosecute, or defend any legal action that shall
not be incidental to its duties to service the Receivables in accordance with
this Agreement (collection actions with respect to Charged-Off Receivables are
understood to be incidental to the Servicer's duties to service the
Receivables), and that in its opinion may involve it in any expense or
liability.
SECTION 12.05 Servicer, Back-up Servicer and Standby Servicer Not
to Resign. Subject to the provisions of Sections 8.02(e) and 13.01, as
applicable, none of the Servicer, Back-up Servicer, or the Standby Servicer
shall resign from the obligations and duties imposed on it by this Agreement as
Servicer, Back-up Servicer, or Standby Servicer, respectively, except upon
determination that the performance of its duties shall no longer be permissible
under applicable law or otherwise with the consent of the Owner Trustee, the
Indenture Trustee and the Insurer. Any determination described above permitting
the resignation of the Servicer, Back-up Servicer or Standby Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Owner
Trustee. No resignation of the Servicer shall become effective, so long as no
Insurer Default shall have occurred and be continuing, until the Back-up
Servicer, the Standby Servicer or an entity acceptable to the Insurer shall have
assumed the responsibilities and obligations of the Servicer. No resignation of
the Servicer, Back-up Servicer, or the Standby Servicer shall relieve the
Servicer, Back-up Servicer, or the Standby Servicer, as the case may be, of any
liability to which it has previously become subject under this Agreement.
TRUST AND SERVICING AGREEMENT
46
SECTION 12.06 Delegation of Duties. Except as provided in Section
12.03 hereof, it is understood and agreed by the parties hereto that the
Servicer or the Transferor may at any time delegate any duties including duties
as custodian to any Person willing to accept such delegation and to perform such
duties (including any affiliate of the Servicer) in accordance with the
customary procedures of the Servicer. In connection with such delegation, the
Servicer or the Transferor may assign rights to the delegee or direct the
payment to the delegee of benefits or amounts otherwise inuring to the benefit
of, or payable to, the Transferor or the Servicer hereunder. Any such delegation
shall not relieve the Servicer or the Transferor of their respective liability
and responsibility with respect to such duties, and shall not constitute a
resignation within Section 12.05 hereof. The Servicer shall give written notice
to the Rating Agencies, the Owner Trustee, the Indenture Trustee and the Insurer
of any such delegation.
ARTICLE XIII
SERVICER DEFAULT
SECTION 13.01 Events of Servicer Default. While the Servicer, the
Back-up Servicer, the Standby Servicer or any successor Servicer is acting as
the Servicer hereunder, any one of the following events shall constitute an
"Event of Servicer Default":
(i) Any failure by the Servicer or BVAC to deposit or
deliver to any Trust Account (or to the Indenture
Trustee for distribution to the Noteholders) any
proceeds or payment required to be so delivered under
the terms of the Indenture, this Agreement or the
Purchase Agreement or any failure by the Servicer to
deliver any Servicer's Certificate pursuant to
Section 8.12 that, in either case, shall continue
unremedied for a period of five Business Days (A)
after written notice from either the Owner Trustee,
the Indenture Trustee or the Insurer (so long as the
Insurer is not in default of its obligations under
the Policy) or by the holders of Notes evidencing not
less than 25% of the aggregate outstanding balance of
the Notes is received by the Servicer as specified in
this Agreement or (B) after discovery by an officer
of the Servicer; or
(ii) Failure on the part of the Servicer, the Transferor
or BVAC duly to observe or to perform in any material
respect any other covenants or agreements of the
Servicer, the Transferor or BVAC, as the case may be,
set forth in this Agreement or the Purchase
Agreement, which failure shall (a) materially and
adversely affect the rights of Certificateholders or
the Secured Parties 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 to the Servicer, BVAC
or the Transferor, as the case may be, by the Owner
Trustee, the Indenture Trustee or the Insurer (so
long as the Insurer is not in default of its
obligations under the Policy) or by the holders of
Notes evidencing not less than 25% of the aggregate
outstanding balance of the Notes; or
(iii) The occurrence of an Insolvency Event with respect to
the Servicer;
TRUST AND SERVICING AGREEMENT
47
then, and in each and every case, so long as an Event of Servicer Default shall
not have been remedied, the Insurer (so long as the Insurer is not in default of
its obligations under the Policy), or the Indenture Trustee (upon direction to
do so by the holders of Notes evidencing not less than 25% of the outstanding
principal balance of the Notes if the Insurer is in default under the Policy),
by notice then given in writing to the Servicer may, terminate all of the rights
and obligations of the Servicer under this Agreement. In addition, if a Trigger
Event (as defined in the Insurance Agreement) shall have occurred, the Insurer
may (A) require that the Indenture Trustee deliver a notice of termination to
the Servicer and appoint a successor Servicer designated by the Insurer in such
notice pursuant to Section 13.02; (B) require that the Indenture Trustee amend
certificates of title relating to the Financed Vehicles and take other actions
to identify the Indenture Trustee (on behalf of the Secured Parties) as the new
secured party on such certificates of title; (C) as provided in the Insurance
Agreement, require that the Servicer or successor Servicer or the Indenture
Trustee instruct Obligors in respect of the Receivables to remit payment on the
Receivable directly to the Indenture Trustee or a separate account established
exclusively for the Trust; and (D) as provided in the Insurance Agreement,
compel transfer by the Servicer of all Receivables Files and, if applicable,
certain rights in respect of servicing systems assets to the Insurer or to the
successor Servicer designated by the Insurer. On or after the receipt by the
Servicer of such written notice (unless otherwise directed by the Insurer and
subject to Section 13.02(a)), all authority and power of the Servicer as the
Servicer under this Agreement, whether with respect to the Securities or the
Receivables or otherwise, shall, without further action, pass to and be vested
in the Standby Servicer or any such successor Servicer as may be appointed under
Section 13.02; and, without limitation, the Standby Servicer any such successor
Servicer and the Indenture Trustee are hereby authorized and empowered to
execute and deliver, on behalf of the predecessor Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the successor Servicer and the Owner
Trustee in effecting the termination of the responsibilities and rights of the
predecessor Servicer under this Agreement, including the transfer to the
successor Servicer of electronic records related to the Receivables in such form
as the successor Servicer may reasonably request and the transfer to the
successor Servicer for administration by it of all cash amounts that shall at
the time be held by the predecessor Servicer for deposit, or shall thereafter be
received with respect to a Receivable. All Transition Costs shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such costs
and expenses and, if not so paid, shall be reimbursable to the successor
Servicer, to the extent of Available Funds on each Payment Date, pursuant to the
priorities set forth in Section 8.05(a) of the Indenture; provided, that such
payment shall not relieve the predecessor Servicer from the responsibility for
making such payment and the Issuer shall be subrogated to the rights of the
successor Servicer with respect to such Transition Costs and shall have a direct
right to institute proceedings against the Servicer for such payment. The
predecessor Servicer shall grant the Transferor, the Indenture Trustee, the
Standby Servicer, the Back-up Servicer and the Insurer reasonable access to the
predecessor Servicer's premises, computer files, personnel, records and
equipment at the predecessor Servicer's expense.
TRUST AND SERVICING AGREEMENT
48
SECTION 13.02 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of termination
pursuant to Section 13.01 or the Servicer's resignation in accordance
with the terms of this Agreement, the predecessor Servicer shall
continue to perform its functions as Servicer under this Agreement, in
the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of
termination, until receipt of such notice and, in the case of
resignation, until the later of (x) the date 45 days from the delivery
to the Owner Trustee and the Indenture Trustee of written notice of
such resignation (or written confirmation of such notice) in accordance
with the terms of this Agreement and (y) the date upon which the
predecessor Servicer shall become unable to act as Servicer, as
specified in the notice of resignation and accompanying Opinion of
Counsel. In the event of the Servicer's resignation or termination
hereunder, and unless the Controlling Party directs otherwise, the
Standby Servicer shall automatically be the successor Servicer under
this Agreement and the transactions set forth or provided for herein
and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Standby Servicer as Servicer
by the terms and provisions hereof; provided, however, that neither the
Standby Servicer, the Back-up Servicer nor any other successor Servicer
shall be liable for any actions of the Servicer or any other
predecessor Servicer prior to such succession or for any breach by the
Servicer or any other predecessor Servicer of any of its
representations, warranties or covenants contained in this Agreement or
in any related document or agreement.
(b) Upon appointment, the successor Servicer shall be the
successor in all respects to the predecessor Servicer and shall be
subject to all the responsibilities, duties, and liabilities arising
thereafter relating thereto placed on the predecessor Servicer, and
shall be entitled to the Servicing Fee and all of the rights granted to
the predecessor Servicer, by the terms and provisions of this
Agreement. The predecessor Servicer shall be entitled to be reimbursed
for Outstanding Advances.
(c) In connection with such appointment, the Indenture
Trustee may make such arrangements for the successor Servicer out of
payments on Receivables it and such successor Servicer shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the original Servicer under this Agreement. The Owner Trustee
and such successor Servicer shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such
succession.
SECTION 13.03 Notice of Events of Servicer Default. Upon any notice
of an Event of Servicer Default or upon any termination of, or appointment of a
successor to, the Servicer pursuant to this Article XIII, the Owner Trustee
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register to each of the Rating
Agencies rating the Notes, to the Insurer and to the Indenture Trustee for
further notice thereof to the Noteholders.
SECTION 13.04 Waiver of Past Defaults. The Insurer (so long as the
Insurer is the Controlling Party) or the Indenture Trustee (if an Insurer
Default has occurred and is continuing) upon direction from holders of Notes
evidencing not less than 51% of the outstanding principal
TRUST AND SERVICING AGREEMENT
49
balance of the Notes may waive any default by the Servicer in the performance of
its obligations hereunder and its consequences, except a default in making any
required deposits to or payments from the Collection Account in accordance with
this Agreement; provided, that no waiver of any default or provision of this
Agreement shall become effective without the consent of the Insurer (so long as
the Insurer is the Controlling Party). Upon any such waiver of a past default,
such default shall cease to exist, and any Event of Servicer Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
ARTICLE XIV
THE OWNER TRUSTEE
SECTION 14.01 Duties of Owner Trustee. The Owner Trustee, both
prior to and after the occurrence of an Event of Servicer Default, shall
undertake to perform such duties as are specifically set forth in this
Agreement. If an Event of Servicer Default shall have occurred and shall not
have been cured and, in the case of an Event of Servicer Default described in
clause (i) of Section 13.01, the Owner Trustee has received notice of such Event
of Servicer Default, the Owner 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 person would exercise or use under the
circumstances in the conduct of his own affairs.
It shall be the duty of the Owner Trustee to discharge (or cause to be
discharged) all its responsibilities pursuant to the terms of this Agreement and
the other documents to which the Trust is a party and to administer the Trust in
the interest of the Certificateholders, subject to and in accordance with the
provisions of this Agreement and the other documents to which the Trust is a
party. Without limiting the foregoing, the Owner Trustee shall on behalf of the
Trust file and prove any claim or claims that may exist on behalf of the Trust
against the Transferor in connection with any claims paying procedure as part of
an insolvency or a receivership proceeding involving the Transferor.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the other
documents to which the Trust is a party to the extent the Administrator has
agreed in the Administration Agreement to perform any act or to discharge any
duty of the Owner Trustee hereunder or under any other document to which the
Trust is a party, and the Owner Trustee shall not be held liable for the default
or failure of the Administrator to carry out its obligations under the
Administration Agreement. Except as expressly provided in the documents to which
the Trust is a party, the Owner Trustee shall have no obligation to administer,
service or collect the Receivables or to maintain, monitor or otherwise
supervise the administration, servicing or collection of the Receivables.
The Owner Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Owner Trustee that shall be specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement.
TRUST AND SERVICING AGREEMENT
50
No provision of this Agreement shall be construed to relieve the Owner
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Servicer
Default, and after the curing of all such Events of
Servicer Default that may have occurred, the duties
and obligations of the Owner Trustee shall be
determined solely by the express provisions of this
Agreement, the Owner Trustee shall not be liable
except for the performance of such duties and
obligations as shall be specifically set forth in
this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Owner
Trustee and, in the absence of bad faith on the part
of the Owner Trustee, or manifest error, the Owner
Trustee may conclusively rely on the truth of the
statements and the correctness of the opinions
expressed in any certificates or opinions furnished
to the Owner Trustee and conforming to the
requirements of this Agreement;
(ii) The Owner Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Owner Trustee
shall have been negligent in ascertaining the
pertinent facts;
(iii) The Owner Trustee shall not be liable with respect to
any action taken, suffered, or omitted to be taken in
good faith in accordance with this Agreement or at
the direction of the Certificates relating to the
time, method, and place of conducting any proceeding
for any remedy available to the Owner Trustee, or
exercising any trust or power conferred upon the
Owner Trustee, under this Agreement;
(iv) The Owner Trustee shall not be charged with knowledge
of any failure by the Servicer to comply with the
obligations of the Servicer referred to in clauses
(i) or (ii) of Section 13.01, or of any failure by
the Transferor to comply with the obligations of the
Transferor referred to in clause (ii) of Section
13.01, unless a Responsible Officer of the Owner
Trustee receives written notice of such failure (it
being understood that knowledge of the Servicer or
the Servicer as custodian, in its capacity as agent
for the Owner Trustee, is not attributable to the
Owner Trustee) from the Servicer or the Transferor,
as the case may be; and
(v) Without limiting the generality of this Section or
Section 14.04, the Owner Trustee shall have no duty
(A) to see to any recording, filing, or depositing of
this Agreement or any agreement referred to therein
or any financing statement evidencing a security
interest in the Receivables or the Financed Vehicles,
or to see to the maintenance of any such recording or
filing or depositing or to any rerecording, refiling
or redepositing of any thereof, (B) to see to any
insurance of the Financed Vehicles or Obligors or to
effect or maintain any such insurance, (C) to see to
the payment or
TRUST AND SERVICING AGREEMENT
51
discharge of any tax, assessment, or other
governmental charge or any Lien or encumbrance of any
kind owing with respect to, assessed, or levied
against, any part of the Trust, (D) to confirm or
verify the contents of any reports or certificates of
the Servicer delivered to the Owner Trustee pursuant
to this Agreement believed by the Owner Trustee to be
genuine and to have been signed or presented by the
proper party or parties, or (E) to inspect the
Financed Vehicles at any time or ascertain or inquire
as to the performance or observance of any of the
Transferor's or the Servicer's representations,
warranties or covenants or the Servicer's duties and
obligations as Servicer and as custodian of the
Receivable Files under this Agreement.
The Owner Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability shall not be reasonably assured to it,
and none of the provisions contained in this Agreement shall in any event
require the Owner Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this Agreement
except during such time, if any, as the Owner Trustee shall be the successor to,
and be vested with the rights, duties, powers, and privileges of, the Servicer
in accordance with the terms of this Agreement. Except for actions expressly
authorized by this Agreement, the Owner Trustee shall take no action reasonably
likely to impair the security interests created or existing under any Receivable
or to impair the value of any Receivable.
SECTION 14.02 Owner Trustee's Certificate. On or as soon as
practicable after each Payment Date on which Receivables shall be (i) assigned
to BVAC pursuant to Section 7.02 or deemed to be assigned to the Transferor as a
result of the application of Available Funds in respect of Charged-Off
Receivables pursuant to Sections 9.04 or (ii) assigned to the Servicer pursuant
to Section 8.10 or to the Servicer pursuant to Section 15.02, the Owner Trustee
shall, at the written request of the Servicer, execute a Owner Trustee's
Certificate, substantially in the form of, in the case of an assignment to BVAC,
Exhibit 1, or, in the case of an assignment to the Servicer, Exhibit 2, based on
the information contained in the Servicer's Certificate for the related
Collection Period, amounts deposited to the Collection Account, and notices
received pursuant to this Agreement, identifying the Receivables repurchased or
deemed to be repurchased by BVAC pursuant to Section 7.02 or 8.08 or purchased
by the Servicer pursuant to Section 8.10 or the Servicer pursuant to Section
15.02 during such Collection Period, and shall deliver such Owner Trustee's
Certificate, accompanied by a copy of the Servicer's Certificate for such
Collection Period to BVAC or the Servicer, as the case may be. The Owner
Trustee's Certificate shall be an assignment pursuant to Section 14.03.
SECTION 14.03 Owner Trustee's Assignment of Purchased Receivables.
With respect to each Receivable repurchased by BVAC pursuant to Section 7.02, or
deemed to be so repurchased pursuant to Section 8.08, purchased by the Servicer
pursuant to Section 8.10 or the Servicer pursuant to Section 15.02, the Owner
Trustee shall assign, as of the last day of the Collection Period during which
such Receivable became a Charged-Off Receivable or became subject to repurchase
by BVAC or purchase by the Servicer, without recourse, representation, or
warranty, to BVAC or the Servicer (as the case may be) all the Owner Trustee's
right, title, and
TRUST AND SERVICING AGREEMENT
52
interest in and to such Receivables, and all security and documents relating
thereto, such assignment being an assignment outright and not for security. If
in any enforcement suit or legal proceeding it shall be held that the Servicer
may not enforce a Receivable on the ground that it shall not be a real party in
interest or a holder entitled to enforce the Receivable, the Owner Trustee
shall, at the Servicer's expense, take such steps as the Owner Trustee deems
necessary to enforce the Receivable, including bringing suit in its name and/or
the name of the Indenture Trustee.
Section 14.04 Certain Matters Affecting the Owner Trustee. Except
as otherwise provided in Section 14.01:
(i) The Owner Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officers' Certificate, Servicer's Certificate,
certificate of auditors, or any other certificate,
statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond, or other
paper or document believed by it to be genuine and to
have been signed or presented by the proper party or
parties.
(ii) The Owner Trustee may consult with counsel and any
written advice or 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 advice or Opinion of Counsel.
(iii) The Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Agreement, or to institute, conduct, or defend
any litigation under this Agreement or in relation to
this Agreement, at the request, order, or direction
of any of the Certificateholders pursuant to the
provisions of this Agreement, unless such
Certificateholders shall have offered to the Owner
Trustee reasonable security or indemnity reasonably
satisfactory to the Owner Trustee against the costs,
expenses, and liabilities that may be incurred
therein or thereby. Nothing contained in this
Agreement, however, shall relieve the Owner Trustee
of the obligations, upon the occurrence of an Event
of Servicer Default (that shall not have been cured),
to exercise such of the rights and powers vested in
it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the
conduct of his own affairs.
(iv) The Owner Trustee shall not be liable for any action
taken, suffered, or omitted by it in good faith and
believed by it to be authorized or within the
discretion or rights or powers conferred upon it by
this Agreement.
(v) Prior to the occurrence of an Event of Servicer
Default and after the curing of all Events of
Servicer Default that may have occurred, the Owner
Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion,
TRUST AND SERVICING AGREEMENT
53
report, notice, request, consent, order, approval,
bond, or other paper or document, unless requested in
writing so to do by the Indenture Trustee or holders
of Notes evidencing not less than 25% of the
outstanding principal balance of the Notes; provided,
however, that if the payment within a reasonable time
to the Owner Trustee of the costs, expenses, or
liabilities likely to be incurred by it in the making
of such investigation shall be, in the opinion of the
Owner Trustee, not reasonably assured to the Owner
Trustee by the security afforded to it by the terms
of this Agreement, the Owner Trustee may require
reasonable indemnity against such cost, expense, or
liability as a condition to so proceeding. The
reasonable expense of every such examination shall be
paid by the Servicer or, if paid by the Owner
Trustee, shall be reimbursed by the Servicer upon
demand. Nothing in this clause (v) shall affect the
obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding
the Obligors.
(vi) The Owner Trustee may execute any of the trusts or
powers hereunder or perform any duties under this
Agreement either directly or by or through agents or
attorneys or a custodian. The Owner Trustee shall not
be responsible for any misconduct or negligence
solely attributable to the acts or omissions of the
Servicer in its capacity as Servicer or custodian or
the Administrator.
(vii) The Owner Trustee shall have no duty of independent
inquiry, except as may be required by Section 14.01,
and the Owner Trustee may rely upon the
representations and warranties and covenants of the
Transferor and the Servicer contained in this
Agreement with respect to the Receivables and the
Receivable Files.
SECTION 14.05 Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other than
the certificate of authentication on the Certificates) shall be taken as the
statements of the Transferor or the Servicer, as the case may be, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
shall make no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than the certificate of authentication
on the Certificates), or of any Receivable or related document. The Owner
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity, and enforceability of any security interest
in any Financed Vehicle or any Receivable, or the perfection and priority of
such a security interest or the maintenance of any such perfection and priority,
or for or with respect to the efficacy of the Trust or its ability to generate
the payments to be distributed to the Certificateholders or the Noteholders
under this Agreement or the Indenture, including, without limitation: the
existence, condition, location, and ownership of any Financed Vehicle; the
existence and enforceability of any physical damage insurance, lender's single
interest insurance, or credit life or disability and hospitalization insurance
with respect to any Receivable; the existence and contents of any Receivable or
any computer or other record thereof; the validity of the assignment of any
Receivable to the Trust or of any intervening assignment; the completeness of
any Receivable; the performance or enforcement of any Receivable; the compliance
by the Transferor or the
TRUST AND SERVICING AGREEMENT
54
Servicer with any warranty or representation made under this Agreement or in any
related document and the accuracy of any such warranty or representation prior
to the Owner Trustee's receipt of notice or other discovery of any noncompliance
therewith or any breach thereof; any investment of monies by the Servicer or any
loss resulting therefrom (it being understood that the Owner Trustee shall
remain responsible for any Trust property that it may hold); the acts or
omissions of the Transferor, the Servicer, or any Obligor; an action of the
Servicer taken in the name of the Owner Trustee; or any action by the Owner
Trustee taken at the instruction of the Servicer; provided, however, that the
foregoing shall not relieve the Owner Trustee of its obligation to perform its
duties under this Agreement. Except with respect to a claim based on the failure
of the Owner Trustee to perform its duties under this Agreement or based on the
Owner Trustee's negligence or willful misconduct, no recourse shall be had for
any claim based on any provision of this Agreement, the Certificateholders or
the Noteholders, or any Receivable or assignment thereof against the Owner
Trustee in its individual capacity, the Owner Trustee shall not have any
personal obligation, liability, or duty whatsoever to any Certificateholders or
the Noteholders or any other Person with respect to any such claim, and any such
claim shall be asserted solely against the Trust or any indemnitor who shall
furnish indemnity as provided in this Agreement. The Owner Trustee shall not be
accountable for the use or application by the Transferor of any of the
Certificates or Notes or of the proceeds thereof, or for the use or application
of any funds paid to the Transferor or the Servicer in respect of the
Receivables.
SECTION 14.06 Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes with
the same rights as it would have if it were not Trustee.
SECTION 14.07 Owner Trustee's and Indenture Trustee's Fees and
Expenses.
(a) The Servicer shall pay to the Owner Trustee, and the
Owner 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 Owner Trustee's
powers and duties under this Agreement and the Indenture, and the
Servicer shall pay or reimburse the Owner Trustee upon its request for
all reasonable expenses, disbursements, and advances (including the
reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) incurred or
made by the Owner Trustee in accordance with any provisions of this
Agreement and the Indenture, except any such expense, disbursement, or
advance as may be attributable to its willful misfeasance, negligence,
or bad faith, and the Servicer shall indemnify the Owner Trustee
(which, for purposes of this section, shall include its directors,
officers, employees, and agents) for and hold it harmless against any
loss, liability, or expense incurred without willful misfeasance,
negligence, or bad faith on its part, arising out of or in connection
with the acceptance or administration of the Trust, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties under this Agreement and the Indenture. Additionally, the
Transferor, pursuant to Section 11.02, and the Servicer, pursuant to
Section 12.02, respectively, shall indemnify the Owner Trustee with
respect to certain matters. This
TRUST AND SERVICING AGREEMENT
55
indemnity shall survive the termination of this Agreement and the
Indenture or the termination of the Trust and the resignation or
removal of the Owner Trustee.
(b) The Servicer hereby agrees to pay or reimburse the
fees and expenses of the Indenture Trustee as provided in Section 6.07
of the Indenture.
SECTION 14.08 Eligibility Requirements for Owner Trustee. The Owner
Trustee under this Agreement shall at all times be a corporation (i) having an
office in the same State as the location of the Corporate Trust Office as
specified in this Agreement; (ii) organized and doing business under the laws of
such State or the United States of America; (iii) authorized under such laws to
exercise corporate trust powers; (iv) having a net worth of at least
$50,000,000; (v) subject to supervision or examination by federal or State
authorities; and (vi) the long-term unsecured debt of which is rated at least
_____ or which is approved by the Insurer and each Rating Agency. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section 14.08, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Owner Trustee shall cease to be eligible in accordance with the provisions
of this Section 14.08, the Owner Trustee shall resign immediately in the manner
and with the effect specified in Section 14.09.
SECTION 14.09 Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer, with the prior written consent of the Insurer (so
long as it is the Controlling Party), shall promptly appoint a successor Owner
Trustee, by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 14.08 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation, or
liquidation, then the Servicer may remove the Owner Trustee. If it shall remove
the Owner Trustee under the authority of the immediately preceding sentence, the
Servicer shall promptly appoint a successor Owner Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Owner
Trustee so removed and one copy to the successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 14.09
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 14.10.
TRUST AND SERVICING AGREEMENT
56
SECTION 14.10 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 14.09 shall execute, acknowledge, and deliver to
the Servicer and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed, or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Trustee. The
predecessor Owner Trustee shall deliver to the successor Owner Trustee all
documents and statements held by it under this Agreement; and the Servicer and
the predecessor Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor Owner Trustee all such rights, powers, duties,
and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 14.10 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 14.08.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 14.10, the Servicer shall mail notice of the successor of such
Trustee under this Agreement to the Indenture Trustee and to all Holders of
Certificates at their addresses as shown in the Certificate Register. If the
Servicer shall fail to mail such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Servicer.
SECTION 14.11 Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion, or consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
14.08, 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.
SECTION 14.12 Appointment of Co-Trustee or Separate Owner Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any requirements of any jurisdiction in which any part of the
Trust or any Financed Vehicle may at the time be located, the Servicer and the
Owner Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Owner Trustee to
act as co-trustee, jointly with the Owner Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person,
in such capacity and for the benefit of the Certificateholders, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 14.12, such powers, duties, obligations, rights, and trusts as the
Servicer and the Owner Trustee may consider necessary or desirable. If the
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in the case an Event of Servicer Default
shall have occurred and be continuing, the Owner 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
Owner Trustee
TRUST AND SERVICING AGREEMENT
57
pursuant to Section 14.08 and no notice to Certificateholders of the appointment
of any co-trustee or separate trustee shall be required pursuant to Section
14.10.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties, and obligations conferred
or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or
co-trustee is not authorized to act separately
without the Owner Trustee joining in such act),
except to the extent that under any law of any
jurisdiction in which any particular act or acts are
to be performed (whether as Trustee under this
Agreement or as successor to the Servicer under this
Agreement), the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which
event such rights, powers, duties, and obligations
(including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of
the Owner Trustee;
(ii) No trustee under this Agreement shall be personally
liable by reason of any act or omission of any other
trustee under this Agreement; and
(iii) The Servicer and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request, or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XIV. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign, or be removed, all of its
estates, properties, rights, remedies, and trusts shall vest in and be exercised
by the Owner Trustee, to the extent permitted by law, without the appointment of
a new or successor Owner Trustee.
TRUST AND SERVICING AGREEMENT
58
SECTION 14.13 Representations and Warranties of Owner Trustee. The
Owner Trustee shall make the following representations and warranties on which
the Transferor, the Certificateholders and the Secured Parties may rely:
(a) Organization and Existence. The Owner Trustee is a
national banking corporation duly organized and validly existing under
the laws of the State of Delaware and authorized to engage in a banking
and trust business under such laws.
(b) Power and Authority. The Owner Trustee has full
power, authority, and legal right to execute, deliver, and perform this
Agreement, and shall have taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement.
(c) Duly Executed. This Agreement has been duly executed
and delivered by the Owner Trustee constitutes the legal, valid, and
binding agreement of the Owner Trustee, enforceable in accordance with
its terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, reorganization, moratorium,
conservatorship, receivership or other similar laws now or hereinafter
in effect relating to the enforcement of creditors' rights in general,
as such laws would apply in the event of a bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship, receivership
or similar occurrence affecting the Owner Trustee, and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) as well as concepts of
reasonableness, good faith and fair dealing.
ARTICLE XV
TERMINATION SERVICER
SECTION 15.01 Termination of the Trust. The respective obligations
and responsibilities of the Transferor, the Servicer, the Standby Servicer, the
Back-up Servicer, Indenture Trustee and the Owner Trustee created hereby and the
Trust created by this Agreement shall terminate upon (i) the disposition of the
Trust corpus as of the last day of any Collection Period at the direction of the
Servicer, at its option, pursuant to Section 15.02, or (ii) the payment to
Noteholders and the Insurer of all amounts required to be paid to them pursuant
to this Agreement, the Indenture and the Insurance Agreement (as set forth in
writing by the Insurer) and the disposition of all property held as part of the
Trust; provided, however, that in no event shall the trust created by this
Agreement continue beyond the expiration of 21 years from the date as of which
this Agreement is executed. The Servicer shall promptly notify the Owner Trustee
of any prospective termination pursuant to this Section 15.01. Notwithstanding
the foregoing, the Trust shall continue and the Owner Trustee shall pursue
recovery of any Preference Amounts under the Policy and the distribution of the
same to Noteholders until the Policy terminates by its own terms.
SECTION 15.02 Optional Disposition of All Receivables. On the last
day of any Collection Period on which the Pool Balance is equal to or less than
10% of the Original Pool Balance, the Servicer shall have the option to cause
the Owner Trustee to sell (to the Servicer or any other person designated by the
Servicer) the corpus of the Trust at a price (the "Optional
TRUST AND SERVICING AGREEMENT
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Disposition Price") equal to the fair market value of the Receivables, but not
less than the sum of (x) 100% of the outstanding principal balance of the Notes
(including any overdue principal or interest thereon), (y) accrued and unpaid
interest on such amount computed at a rate equal to the weighted average
Contract Rate, and (z) all amounts due and owing to the Servicer, the Back-up
Servicer, the Standby Servicer, the Indenture Trustee, the Owner Trustee and the
Insurer minus any amounts representing payments received on the Receivables not
yet applied to the interest related thereto or to reduce the principal balance
thereof. The proceeds of such sale will be deposited into the Collection Account
for distribution to the Indenture Trustee (and, to the extent applicable, the
Insurer) on the next succeeding Payment Date in accordance with Article VIII of
the Indenture. The Servicer shall notify the Owner Trustee on or before the
Determination Date if the Pool Balance as of the end of the related Collection
Period will be less than or equal to 10% of the Original Pool Balance. The
Servicer shall notify the Owner Trustee on or before the Determination Date if
the Servicer intends to exercise its option to purchase the corpus of the Trust
pursuant to this Section 15.02. Such price shall be deposited to the Collection
Account in immediately available funds by 12:00 noon, New York City time, on the
Payment Date and, upon notice to the Owner Trustee and the Indenture Trustee of
such deposit, the Owner Trustee shall transfer the Receivables and the
Receivable Files to the purchaser, whereupon the Notes and the Certificates
shall no longer evidence any right or interest in the Receivables or any
proceeds thereof. The fair market value of the outstanding Receivables for
purposes of this Section 15.02 shall be an amount equal to the average of the
bid prices for such assets taken as a whole, provided to the Servicer by two
independent, nationally recognized dealers in automobile loans substantially
similar to the Receivables.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01 Amendment.
(a) This Agreement may be amended from time to time by
the Issuer, the Transferor, the Servicer, the Back-up Servicer, the
Standby Servicer, the Owner Trustee and the Indenture Trustee and, (i)
so long as the Insurer is the Controlling Party, with the prior written
consent of the Insurer and, (ii) if an Insurer Default has occurred and
is continuing or the Insurance Agreement has terminated with the
consent of Holders of at least 51% of the Principal Balance of the
Notes (which consent given pursuant to this Section or pursuant to any
other provision of this Agreement shall be conclusive and binding on
such Holders and on all future Holders of such Notes and of any Notes
issued upon the transfer thereof or in exchange thereof or in lieu
thereof whether or not notation of such consent is made upon the Notes)
for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Holders of Notes; provided, however,
that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, or change the
allocation or priority of, collections of payments on Receivables or
payments that shall be required to be made on any Note or Certificate
or change the applicable interest rate payable on any Note without the
consent of each Noteholder and Certificateholder affected thereby, (b)
reduce the aforesaid percentage of the Note Balance required to consent
to any such amendment, without the consent of the
TRUST AND SERVICING AGREEMENT
60
Holders of all Notes then outstanding or eliminate the right of the
Noteholder or the Certificateholder to consent to any change described
in clause (a) affecting the Noteholder or the Certificateholder without
the consent of the Noteholder or the Certificateholder, as applicable,
or (c) result in a downgrade or withdrawal of the then current rating
of the Notes by either of the Rating Agencies without the consent of
all the Noteholders; provided, further that this Agreement may be
amended from time to time by the Issuer, the Transferor, the Servicer,
the Back-up Servicer, the Standby Servicer, the Owner Trustee, the
Indenture Trustee, the Insurer (so long as it is the Controlling
Party), without the prior consent of the Noteholders to cure any
ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Agreement; provided that such action shall not adversely affect in any
material respect the interests of the Holders of the Notes, as
evidenced by an opinion of counsel to such effect.
(b) The Owner Trustee shall furnish prior notice of any
such proposed amendment to each Rating Agency and promptly after the
execution of any such amendment or consent, the Indenture Trustee shall
furnish a copy of such amendment and/or consent, if applicable, to each
Noteholder, the Insurer and each of the Rating Agencies.
(c) So long as it is the Controlling Party, the Insurer
shall have the right to exercise all rights, including voting rights,
which the Noteholders are entitled to exercise pursuant to this
Agreement, without any consent of such Noteholders; provided, however,
that without the consent of each Noteholder affected thereby, the
Insurer shall not exercise such rights to amend this Agreement in any
manner that would (i) reduce the amount of, or delay the timing of,
collections of payments on the Receivables or distributions which are
required to be made on any Note, (ii) adversely affect in any material
respect the interests of the Holders of any Notes, or (iii) alter the
rights of any such Holder to consent to such amendment.
(d) Notwithstanding any provision in this Agreement to
the contrary, in the event an Insurer Default shall have occurred and
be continuing or the Insurance Agreement has terminated, the Insurer
shall not have the right to take any action under this Agreement,
consent to or to control or direct the actions of the Trust, the
Transferor, the Servicer, the Back-up Servicer, the Standby Servicer,
the Indenture Trustee or the Owner Trustee pursuant to the terms of
this Agreement, nor shall the consent of the Insurer be required with
respect to any action (or waiver of a right to take action) to be taken
by the Trust, the Transferor, the Servicer, the Back-up Servicer, the
Standby Servicer, the Indenture Trustee, the Owner Trustee or the
Noteholders or the Certificateholder.
(e) It shall not be necessary for the consent of the
Certificateholder or the Noteholders pursuant to this Section 16.01 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
TRUST AND SERVICING AGREEMENT
61
authorization of the execution thereof by the Certificateholder shall
be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(f) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State of the State of Delaware.
(g) Prior to the execution of any amendment to this
Agreement, the Owner Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of Counsel
referred to in Section 16.02(i)(1). The Owner Trustee may, but shall
not be obligated to, enter into any such amendment which affects the
Owner Trustee's own rights, duties, or immunities under this Agreement.
SECTION 16.02 Protection of Title to Trust.
(a) The Transferor 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 Trust
under this Agreement in the Receivables and in the proceeds thereof.
The Transferor shall deliver (or cause to be delivered) to the Owner
Trustee and the Indenture Trustee file-stamped copies of, or filing
receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Transferor nor the Servicer shall change
its name, identity, or corporate structure in any manner that would,
could, or might make any financing statement or continuation statement
filed by the Transferor in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-402(7) of the UCC,
unless it shall have given the Owner Trustee at least 60 days' prior
written notice thereof.
(c) The Transferor and the Servicer shall give the Owner
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
amendment of any previously filed financing or continuation statement
or of any new financing statement (in which case the Servicer shall
file or cause to be filed such amendment or continuation statement or
new financing statement). The Owner Trustee shall be permitted to waive
the 60 day notice period to any shorter period; provided that such UCC
financing statements or amendments have been filed on or before the
effective date of any such waiver. The Servicer shall at all times
maintain each office from which it shall service Receivables, and its
principal executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as
to each Receivable accurately and in sufficient detail to permit (i)
the reader thereof to know at any time the status of such Receivable,
including payments and Recoveries made and payments owing (and the
nature of each) and (ii) reconciliation between payments or Recoveries
on (or
TRUST AND SERVICING AGREEMENT
62
with respect to) each Receivable and the amounts from time to time
deposited in the Collection Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so
that, from and after the time of sale under this Agreement of the
Receivables to the Owner Trustee, the Servicer's master computer
records (including any back-up archives) that refer to a Receivable
shall indicate clearly with reference to the particular trust that such
Receivable is owned by the Owner Trustee. Indication of the Owner
Trustee's ownership of a Receivable shall be deleted from or modified
on the Servicer's computer systems when, and only when, the Receivable
shall have been paid in full or repurchased.
(f) If at any time the Transferor or the Servicer shall
propose to sell, grant a security interest in, or otherwise transfer
any interest in automotive receivables to any prospective purchaser,
lender, or other transferee, the Servicer shall give to such
prospective purchaser, lender, or other transferee computer tapes,
records, or print-outs (including any restored from back-up archives)
that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned
by the Owner Trustee and pledged to the Indenture Trustee.
(g) Upon reasonable prior notice, the Servicer shall
permit the Owner Trustee and its agents at any time during normal
business hours to inspect, audit, and make copies of and abstracts from
the Servicer's records regarding any Receivable provided, that such
inspection and audit shall not unreasonably interfere with the
Servicer's daily business operations.
(h) Upon request, the Servicer shall furnish to the Owner
Trustee, the Indenture Trustee and the Insurer (so long as it is the
Controlling Party), within five Business Days, a list of all
Receivables (by contract number and name of Obligor) then held as part
of the Trust, together with a reconciliation of such list to the
Schedule of Receivables and to each of the Servicer's Certificates
furnished before such request indicating removal of Receivables from
the Trust.
(i) The Servicer shall deliver to the Owner Trustee and
the Indenture Trustee:
(1) promptly after the execution and delivery of
this Agreement and of each amendment thereto, an
Opinion of Counsel either (a) stating that, in the
opinion of such counsel, all financing statements and
continuation statements have been executed and filed
that are necessary fully to preserve and protect the
interest of the Owner Trustee in the Receivables and
reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are
given, or (b) stating that, in the opinion of such
counsel, no such action shall be necessary to
preserve and protect such interest; and
(2) within 90 days after the beginning of each
calendar year beginning with the first calendar year
beginning more than three months after the Cutoff
Date, an Opinion of Counsel, dated as of a date
during such 90-day
TRUST AND SERVICING AGREEMENT
63
period, either (a) stating that, in the opinion of
such counsel, all financing statements and
continuation statements have been executed and filed
that are necessary fully to preserve and protect the
interest of the Owner Trustee in the Receivables, and
reciting the details of such filings or referring to
prior Opinions of Counsel in which such details are
given, or (b) stating that, in the opinion of such
counsel, no such action shall be necessary to
preserve and protect such interest.
(j) If the Back-up Servicer or the Standby Servicer is
acting as the successor Servicer, it shall be reimbursed for any costs
incurred by it in performing its duties pursuant to this Section.
SECTION 16.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of a Certificateholder shall
not operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or commence any proceeding in any
court for a partition or winding up of the Trust, nor otherwise affect
the rights, obligations, and liabilities of the parties to this
Agreement or any of them.
(b) No Certificateholder shall have any right to vote
(except as provided in this Agreement) or in any manner otherwise
control the operation and management of the Trust, or the obligations
of the parties to this Agreement except as expressly set forth herein,
nor shall anything in this Agreement set forth, or contained in the
terms of the Notes or Certificates, be construed so as to constitute
the Noteholders or Certificateholders from time to time as partners or
members of an association; nor shall any Noteholders or
Certificateholder be under any liability to any third person by reason
of any action taken pursuant to any provision of this Agreement.
(c) No Noteholder or Certificateholder shall have any
right by virtue or by availing itself of any provisions of this
Agreement to institute any suit, action, or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Owner Trustee a written notice of
default and of the continuance thereof, as hereinbefore provided, and
unless also the Noteholder or Certificateholder requests in writing to
the Owner Trustee to institute such action, suit, or proceeding in its
own name as Trustee under this Agreement and shall have offered to the
Owner Trustee such reasonable indemnity as it may require against the
costs, expenses, and liabilities to be incurred therein or thereby, and
the Owner Trustee, for 30 days after its receipt of such notice,
request, and offer of indemnity, shall have neglected or refused to
institute any such action, suit, or proceeding and during such 30-day
period no direction inconsistent with such written request has been
given to the Owner Trustee.
SECTION 16.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS,
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS AND
TRUST AND SERVICING AGREEMENT
64
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (EXCEPT WITH REGARD TO THE UCC).
SECTION 16.05 Notices. All demands, notices, and communications
under this Agreement shall be in writing, personally delivered, sent by
facsimile to, sent by courier to or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given unless otherwise provided
herein, upon receipt:
(a) in the case of the Transferor to the agent for
service as specified in this Agreement; at the following address: Bay
View Transaction Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other address as shall be designated by the
Transferor in a written notice to the Servicer or Trustee,
(b) in the case of the Servicer to the agent for service
as specified in this Agreement; at the following address: Bay View
Acceptance Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(c) in the case of the Owner Trustee; at the Corporate
Trust Office,
(d) in the case of the Insurer; at ____________________,
(e) in the case of the Indenture Trustee; at--__________,
(f) in the case of the Back-up Servicer; at_________, and
(g) in the case of the Standby Servicer; at--___________.
Unless otherwise provided herein, any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder shall receive such notice.
SECTION 16.06 Severability of Provisions. If any one or more of
the covenants, agreements, provisions, or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
SECTION 16.07 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided below or in Sections 11.03 and 12.03 and as
provided in the provisions of this Agreement concerning the resignation of the
Servicer, this Agreement may not be assigned by the Transferor, the Servicer,
the Back-up Servicer or the Standby Servicer without the prior written consent
of the Owner Trustee and the Controlling Party.
TRUST AND SERVICING AGREEMENT
65
SECTION 16.08 Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon
authentication thereof by the Owner Trustee pursuant to Section 10.02,
Certificates shall be deemed fully paid.
SECTION 16.09 Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer, the Backup Servicer, the Standby
Servicer, and the Owner Trustee shall not, prior to the date which is one year
and one day after the termination of this Agreement with respect to the Trust or
the Transferor, acquiesce, petition or otherwise invoke or cause the Trust or
the Transferor to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Trust or the
Transferor under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust or the Transferor or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust or the Transferor.
SECTION 16.10 No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificate represents a
100% beneficial interest in the assets of the Trust only and does not represent
an interest in or obligation of the Transferor, the Servicer, the Back-up
Servicer, the Standby Servicer, the Owner Trustee, the Indenture Trustee, the
Insurer, or any Affiliate thereof, and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement.
SECTION 16.11 Further Assurances. The Transferor, the Servicer, the
Back-up Servicer and the Standby 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 the Indenture Trustee or the Insurer 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 16.12 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Owner Trustee, the
Insurer, the Noteholders or the Certificateholders, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of 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 herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 16.13 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the Indenture Trustee,
the Noteholders and the Certficateholders, respectively, and their respective
successors and permitted assigns. Except as may be otherwise provided in this
Agreement, no other person will have any right or obligation hereunder. The
Owner Trustee (including in its individual capacity), and the Insurer are each
an express third party beneficiary of this Agreement. Each of the parties to the
Purchase Agreement hereby agrees that the Insurer shall be permitted but not
obligated to enforce the rights of the
TRUST AND SERVICING AGREEMENT
66
Transferor directly thereunder in the place and stead of the Transferor but the
Insurer shall have no obligations under the Purchase Agreement.
SECTION 16.14 Actions by Noteholders or Certificateholders.
(a) Wherever in this Agreement a provision is made that
an action may be taken or a notice, demand, or instruction given by
Noteholders or by Certificateholders, as the case may be, such action,
notice, demand or instruction may be taken or given by any Noteholder
or by any Certificateholder, unless such provision requires a specific
percentage of Noteholders or Certificateholders, as the case may be.
(b) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Agreement to
be taken or given by Noteholders or Certificateholders, as the case may
be, may be embodied in any evidenced by one or more instruments or
substantially similar tenor signed by such Noteholders or
Certificateholders, as the case may be, in person or by an agent duly
appointed in writing.
(c) The fact and date of the execution by any Noteholder
or any Certificateholder of any instrument or writing may be proved in
any reasonable manner which the Indenture Trustee deems sufficient.
(d) Any request, demand, authorization, direction,
notice, consent, waiver, or other act by a Noteholder or a
Certificateholder, as the case may be, shall bind such Noteholder or
Certificateholder, as the case may be, and every subsequent holder of
such Certificate or Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of
anything done or omitted to be done by the Indenture Trustee, the
Transferor, the Servicer, the Back-up Servicer or the Standby Servicer
in reliance thereon, whether or not notation of such action is made
upon such Certificate or Note.
(e) The Indenture Trustee may require such additional
proof of any matter referred to in this Section as it shall deem
necessary.
SECTION 16.15 Corporate Obligation. No recourse may be taken,
directly or indirectly, against any partner, incorporator, subscriber to the
capital sock, stockholder, director, officer or employee of the Transferor, the
Servicer, the Back-up Servicer or the Standby Servicer with respect to their
respective obligations and indemnities under this Agreement or any certificate
or other writing delivered in connection herewith.
SECTION 16.16 Independence of the Servicer, Back-up Servicer and
Standby Servicer. For all purposes of this Agreement, each of the Servicer,
Back-up Servicer and Standby Servicer shall be an independent contractor and
shall not be subject to the supervision of the Trust, the Indenture Trustee or
the Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by this
Agreement, the Servicer, Back-up Servicer and Standby Servicer shall have no
authority to act for or represent the Issuer or the Owner Trustee in any way and
shall not otherwise be deemed an agent of the Issuer or the Owner Trustee.
TRUST AND SERVICING AGREEMENT
67
SECTION 16.17 No Joint Venture. Noting contained in this Agreement
(i) shall constitute the Servicer, the Back-up Servicer or the Standby Servicer
and either of the Trust or the Owner Trustee as members of any partnership,
joint venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
SECTION 16.18 Headings. The headings of articles and sections and
the table of contents contained in this Agreement are provided for convenience
only. They form no part of this Agreement and shall not affect its construction
or interpretation. Unless otherwise indicated, all references to articles and
sections in this Agreement refer to the corresponding articles and sections of
this Agreement.
SECTION 16.19 Entire Agreement. This Agreement sets forth the
entire agreement between the parties with respect to the subject matter hereof,
and this Agreement supersedes and replaces any agreement or understanding that
may have existed between the parties prior to the date hereof in respect of such
subject matter.
SECTION 16.20 Effect of Policy Expiration Date. Notwithstanding
anything to the contrary set forth herein, all references to any right of the
Insurer to direct, appoint, consent to, accept, approve of, take or omit to take
any action under this Agreement shall be inapplicable at all times after
expiration of the Policy or so long as an Insurer Default has occurred and is
continuing, and (i) if such reference provides for another party or parties to
take or omit to take such action following an Insurer Default, such party or
parties shall also be entitled to take or omit to take such action, following
the expiration of the Policy and (ii) if such reference does not provide for
another party or parities to take or omit to take such action following an
Insurer Default, then the Indenture Trustee acting at the direction of the
Majority Noteholders shall have the right to take or omit to take any such
action, following the expiration of the Policy or so long as an Insurer Default
has occurred and is continuing. In addition, any other provision of this
Agreement which is operative based in whole or in part on whether an Insurer
Default has or has not occurred shall, at all times on or after the expiration
of the Policy, be deemed to refer to whether or not the expiration of the Policy
has occurred.
SECTION 16.21 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certifications. The certifications
required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules of the Securities and
Exchange Commission promulgated thereunder to be included in filings with
respect to the Trust pursuant to the Securities Exchange Act of 1934, as
amended, shall be made by BVAC, so long as BVAC is the Servicer; if BVAC is no
longer the Servicer, such certification shall be made by the Transferor. If BVAC
is no longer the Servicer, the successor Servicer shall provide to the
Transferor all information as the Transferor may reasonably request in order to
fulfill its obligations to make such certifications. In addition, the Indenture
Trustee shall provide to BVAC or the Transferor (whichever of the two is then
required to make such certifications) with a certification signed by a
Responsible Officer (as defined in the Indenture) stating that such Responsible
Officer is not actually aware (without any independent duty or inquiry or
investigation) of any matters which would cause the certification to be made by
BVAC or the Transferor, as the case may be, to be incorrect.
TRUST AND SERVICING AGREEMENT
68
SECTION 16.22 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.
TRUST AND SERVICING AGREEMENT
69
IN WITNESS WHEREOF, the parties hereto have caused this Trust and
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
BAY VIEW TRANSACTION CORPORATION,
as Transferor
By:____________________________________
Name:
Title:
BAY VIEW ACCEPTANCE CORPORATION,
as Servicer
By:____________________________________
Name:
Title:
_______________________________________
as Back-up Servicer
By:____________________________________
Name:
Title:
_______________________________________
as Standby Servicer
By:____________________________________
Name:
Title:
_______________________________________
as Indenture Trustee
By:____________________________________
Name:
Title:
TRUST AND SERVICING AGREEMENT
______________________________________,
as Owner Trustee
By:____________________________________
Name:
Title:
TRUST AND SERVICING AGREEMENT
2
Exhibit 1
Owner Trustee's Certificate
pursuant to Section 14.02
of the Trust and Servicing Agreement
____________________, as owner trustee (the "Owner Trustee") of the Bay
View _____ Owner Trust created pursuant to the Trust and Servicing Agreement
(the "Trust Agreement") dated as of __________, among Bay View Transaction
Corporation, as depositor (the "Transferor"), Bay View Acceptance Corporation,
as servicer (the "Servicer") [________], as Back-up Servicer, [________], as
Standby Servicer, [________], as Indenture Trustee and the Owner Trustee, does
hereby sell, transfer, assign, and otherwise convey to Bay View Acceptance
Corporation without recourse, representation, or warranty, all of the Owner
Trustee's right, title, and interest in and to all of the Receivables (as
defined in the Trust Agreement) identified in the attached Servicer's
Certificate as "Purchased Receivables," which have been repurchased by the
Transferor pursuant to Section 7.02 or Section 8.08 and all security and
documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this ____ day of ______.
EXHIBIT 1 TO
TRUST AND SERVICING AGREEMENT
1
Exhibit 2
Owner Trustee's Certificate
pursuant to Section 14.02
of the Trust and Servicing Agreement
____________________, as trustee (the "Owner Trustee") of the Bay View
_____ Owner Trust created pursuant to the Trust and Servicing Agreement (the
"Trust Agreement") dated as of __________, among Bay View Transaction
Corporation, as depositor (the "Transferor"), Bay View Acceptance Corporation,
as servicer (the "Servicer"), [____], as Back-up Servicer, [_____], as Standby
Servicer, [_____], as Indenture Trustee and the Owner Trustee, does hereby sell,
transfer, assign, and otherwise convey to the Servicer, representation, or
warranty, all of the Owner Trustee's right, title, and interest in and to all of
the Receivables (as defined in the Trust Agreement) identified in the attached
Servicer's Certificate as "Purchased Receivables," which have been purchased by
the Servicer pursuant to Section 8.10 or Section 15.02, and all security and
documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this _____ day of _____.
EXHIBIT 2 TO
TRUST AND SERVICING AGREEMENT
1
Exhibit 3
Form of Servicer's Certificate
pursuant to Sections 8.12
of the Trust and Servicing Agreement
SERVICER'S CERTIFICATE
EXHIBIT 3 TO
TRUST AND SERVICING AGREEMENT
1
EXHIBIT A
CERTIFICATE OF TRUST OF
BAY VIEW _____OWNER TRUST
This Certificate of Trust of Bay View _____ Owner Trust (the "Trust"),
dated as of __________, is being duly executed and filed by
____________________, a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, Section 3801
et seq.).
1. Name. The name of the business trust formed hereby is BAY VIEW
_____ OWNER TRUST.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is ____________________, (Address),
Attention: __________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
____________________, not in its individual capacity but
solely as owner trustee under a Trust Agreement dated as of
____________________,
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT A TO
TRUST AND SERVICING AGREEMENT
1
EXHIBIT B
[Form of Certificate]
BAY VIEW _____ OWNER TRUST
AUTOMOBILE RECEIVABLE
BACKED CERTIFICATE
evidencing an undivided interest in the Trust, as defined below, the
property of which includes a pool of simple interest installment loan and
security agreements and installment sales contracts secured by new and used
automobiles, light-duty trucks, motorcycles, recreational vehicles and vans. The
contracts were sold to the Owner Trustee by Bay View Securitization Corporation.
(This Certificate does not represent an interest in or obligation of
Bay View Transaction Corporation or any of its affiliates. Neither this
Certificate nor the underlying Receivables, as defined below, are insured or
guaranteed by any other government agency).
NUMBER One Unit
R-1
THIS CERTIFIES THAT Bay View Transaction Corporation, a Delaware
corporation, is the registered owner of a nonassessable, fully-paid interest in
the Bay View _____ Owner Trust (the "Trust"), a Delaware business trust. The
Trust was created pursuant to a Trust and Servicing Agreement dated as of
__________ (the "Agreement"), among Bay View Transaction Corporation as
Transferor, Bay View Acceptance Corporation, as Servicer, ______, as Back-up
Servicer, ________, as Standby Servicer, _________, as Indenture Trustee and
____________________ (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. A copy of the Agreement may be
examined during normal business hours at the Corporate Trust Office of the Owner
Trustee by any Certificateholder upon request. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement. This Certificate is issued under and is subject to the
terms, provisions, and conditions of the Agreement, to which Agreement the
holder of this Certificate by virtue of the acceptance hereof assents and by
which such holder is bound. The property of the Trust includes a pool of simple
and precomputed interest loan and security agreements and installment sales
contracts for new and used automobiles, light-duty trucks, sports utility
vehicles, vans, motorcycles, recreational vehicles and vans (the "Receivables"),
all monies paid thereon, and all monies due thereon, including Accrued Interest,
after __________ (but excluding Accrued Interest paid or due before the Closing
Date), security interests in the vehicles financed thereby, certain bank
accounts and the proceeds thereof and certain other property and rights
described in the Agreement and the proceeds of the foregoing.
This Certificate represents an interest in certain assets of the Trust,
including the right to receive a portion of the collections and other amounts at
the times and in the amounts specified in the Agreement. The rights of the
Certificateholders in the assets of the Trust are subordinated to the rights of
the Noteholders as set forth in the Indenture and the Agreement.
EXHIBIT B TO
TRUST AND SERVICING AGREEMENT
1
Unless the certificate of authentication hereon shall have been
executed by a Responsible Officer of the Owner Trustee, by manual or facsimile
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Agreement or be valid for any purpose. Registration of transfer of
this Certificate to a person may not be effected unless (a) the Insurer consents
to such transfer, (b) such transfer will not adversely affect the tax treatment
of the Trust or the Notes, and (c) the Rating Agency Condition has been
satisfied with respect to such transfer.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust. The Servicer may at its
option cause the Owner Trustee to sell the corpus of the Trust at a price not to
be less than the price specified in the Agreement; however, such right is
exercisable only as of the last day of a Collection Period on which the Pool
Balance is less than or equal to 10% of the Original Pool Balance. The
Certificateholders are required to pay any unpaid fees and expenses of the Owner
Trustee and in connection with such disposition.
Although this Certificate summarizes certain provisions of the
Agreement, this Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Owner Trustee. In the event of any
inconsistency or conflict between the terms of this Certificate and the terms of
the Agreement, the terms of the Agreement shall control. By acceptance of this
Certificate, the holder agrees to be bound by the terms of the Agreement,
including the agreement to treat the Trust as a partnership for income tax
purposes and the Certificates as an equity interest therein.
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Trust and not in
its individual capacity has caused this Certificate to be duly executed.
Dated: __________
BAY VIEW _____ OWNER TRUST
By______________________, solely in its
capacity as Owner Trustee
By____________________________________,
Responsible Officer
EXHIBIT B TO
TRUST AND SERVICING AGREEMENT
2
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the Within-mentioned Agreement.
______________________________________,
as Owner Trustee
By____________________________________,
Signatory
Dated: __________
EXHIBIT 3 TO
TRUST AND SERVICING AGREEMENT
1
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address, including postal zip code, of
assignee) the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to transfer said Certificate on the books
of the Certificate Registrar, with full power of substitution in the premises.
Dated: __________
*
Signature Guaranteed:
*
* NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever.
Such signature must be guaranteed by a member of the New York Stock
Exchange or a commercial bank, trust company savings bank or other
savings and loan institution.
EXHIBIT 3 TO
TRUST AND SERVICING AGREEMENT
2
Schedule A
to the Trust and Servicing Agreement
SCHEDULE OF RECEIVABLES
Transferor
Account Number
(as of the Cutoff Date) Name of Obligor Amount Financed
$
A COPY OF THE SCHEDULE OF RECEIVABLES, INCLUDING THE ABOVE
CAPTIONED INFORMATION WITH RESPECT TO EACH RECEIVABLE, WAS
DELIVERED TO THE OWNER TRUSTEE WITH A COUNTERPART OF THE TRUST
AND SERVICING AGREEMENT.
SCHEDULE A TO
TRUST AND SERVICING AGREEMENT
1
Schedule B
to the Trust and Servicing Agreement
1. Location of Receivables:
Bay View Acceptance Corporation
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SCHEDULE B TO
TRUST AND SERVICING AGREEMENT
1