Exhibit 10.1
FORM OF SALE AND SERVICING AGREEMENT
among
[__________], ACTING NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS OWNER TRUSTEE OF
REGIONS AUTO RECEIVABLES TRUST 200__-__,
Issuer,
REGIONS ACCEPTANCE LLC,
Depositor,
REGIONS BANK,
Seller, Master Servicer, Administrator and Custodian,
and
[INDENTURE TRUSTEE],
Indenture Trustee
Dated as of [DATE]
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions............................................................................1
Section 1.02. Other Definitional Provisions.........................................................19
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables.............................................................20
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of the Seller..........................................22
Section 3.02. Representations and Warranties of the Depositor.......................................22
Section 3.03. Repurchase Upon Breach................................................................23
Section 3.04. Custody of Receivable Files...........................................................23
Section 3.05. Duties of Master Servicer as Custodian................................................23
Section 3.06. Instructions; Authority to Act........................................................24
Section 3.07. Custodian's Indemnification...........................................................25
Section 3.08. Effective Period and Termination......................................................25
Section 3.09. Transfer and Delivery of Receivable Files.............................................26
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Duties of Master Servicer.............................................................26
Section 4.02. Collection of Receivable Payments; Modifications of Receivables.......................28
Section 4.03. Realization upon Receivables..........................................................28
Section 4.04. Physical Damage Insurance.............................................................28
Section 4.05. Maintenance of Security Interests in Financed Vehicles................................29
Section 4.06. Covenants of Master Servicer..........................................................29
Section 4.07. Purchase of Receivables Upon Breach...................................................30
Section 4.08. Servicing Fee.........................................................................30
Section 4.09. Master Servicer's Certificate.........................................................30
Section 4.10. Annual Statement as to Compliance; Notice of Master Servicer Termination
Event; ▇▇▇▇▇▇▇▇-▇▇▇▇▇.................................................................31
Section 4.11. Annual Independent Accountants' Report................................................31
Section 4.12. Access to Certain Documentation and Information Regarding Receivables.................32
Section 4.13. Term of Master Servicer...............................................................32
Section 4.14. Access to Information Regarding Trust and Basic Documents.............................32
i
ARTICLE V
DISTRIBUTIONS; STATEMENTS TO SECURITYHOLDERS
Section 5.01. Establishment of Accounts.............................................................32
Section 5.02. Collections...........................................................................34
Section 5.03. Application of Collections............................................................35
Section 5.04. Purchase Amounts......................................................................35
Section 5.05. Reserved..............................................................................35
Section 5.06. Distributions.........................................................................35
Section 5.07. Reserve Account.......................................................................37
Section 5.08. Statements to Securityholders.........................................................38
ARTICLE VI
THE DEPOSITOR
Section 6.01. Representations of Depositor..........................................................39
Section 6.02. Limited Liability Company Existence...................................................41
Section 6.03. Liability of Depositor; Indemnities...................................................41
Section 6.04. Merger or Consolidation of, or Assumption of the Obligations of, Depositor............41
Section 6.05. Limitation on Liability of Depositor and Others.......................................42
Section 6.06. Depositor May Own Securities..........................................................42
Section 6.07. Depositor to Provide Copies of Relevant Securities Filings............................42
Section 6.08. Amendment of Depositor's Organizational Documents.....................................42
ARTICLE VII
THE SERVICER
Section 7.01. Representations of Master Servicer....................................................42
Section 7.02. Indemnities of Master Servicer........................................................44
Section 7.03. Merger or Consolidation of, or Assumption of the Obligations of, Master
Servicer..............................................................................45
Section 7.04. Limitation on Liability of Master Servicer and Others.................................45
Section 7.05. Appointment of Subservicer............................................................46
Section 7.06. [Master Servicer Not to Resign].......................................................46
ARTICLE VIII
DEFAULT
Section 8.01. Master Servicer Termination Events....................................................46
Section 8.02. Consequences of a Master Servicer Termination Event...................................47
Section 8.03. Appointment of Successor Master Servicer..............................................48
Section 8.04. Notification to Securityholders.......................................................49
Section 8.05. Waiver of Past Defaults...............................................................49
ARTICLE IX
TERMINATION
ii
Section 9.01. Optional Purchase of All Receivables..................................................49
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendment.............................................................................50
Section 10.02. Protection of Title to Trust..........................................................51
Section 10.03. Notices...............................................................................53
Section 10.04. Assignment by the Depositor or the Master Servicer....................................53
Section 10.05. Limitations on Rights of Others.......................................................53
Section 10.06. Severability..........................................................................53
Section 10.07. Counterparts..........................................................................53
Section 10.08. Headings..............................................................................53
Section 10.09. GOVERNING LAW.........................................................................53
Section 10.10. Assignment by Issuer..................................................................53
Section 10.11. Nonpetition Covenants.................................................................54
Section 10.12. Limitation of Liability of Owner Trustee and Indenture Trustee........................54
Schedule A [Reserved]
Schedule B Final Schedule of Receivables
Schedule C Location of Receivable Files
Exhibit A Representations and Warranties of the Seller Under Section 3.02 of the
Receivables Purchase Agreement
Exhibit B Form of Payment Date Statement to Securityholders
Exhibit C Form of Master Servicer's Certificate
Exhibit D-1 Extension Policy
Exhibit D-2 Form of Dealer Agreement
Exhibit D-3 Form of Assignment
iii
This SALE AND SERVICING AGREEMENT, dated as of [DATE], among
[__________], ACTING NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE
OF REGIONS AUTO RECEIVABLES TRUST 200__-__, a Delaware common law trust (the
"Issuer"), REGIONS ACCEPTANCE LLC, a Delaware limited liability company (the
"Depositor"), REGIONS BANK, an Alabama state banking corporation, as master
servicer (in such capacity, the "Master Servicer"), as seller (in such
capacity, the "Seller"), as administrator (in such capacity, the
"Administrator") and as custodian (in such capacity, the "Custodian") and
[INDENTURE TRUSTEE], a [_______] banking corporation, as indenture trustee
(the "Indenture Trustee").
WHEREAS, the Issuer desires to purchase a portfolio of receivables
arising in connection with [retail installment sales contracts, retail
installment loans, purchase money notes or other notes] originated or
purchased by Regions Bank in the ordinary course of its business and sold by
Regions Bank to the Depositor;
WHEREAS, the Depositor is willing to sell such receivables to the Issuer;
and
WHEREAS, Regions Bank is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Administration Agreement" shall mean the Owner Trust Administration
Agreement dated as of [_________], 2002, among [__________], acting not in its
individual capacity but solely as Owner Trustee of Regions Auto Receivables
Trust 200_-_, as the Issuer, Regions Bank, as Owner Trust Administrator, and
[_________], as Indenture Trustee.
"Affiliate" means. as to any Person, any other Person controlling,
controlled by or under common control with such Person.
"Agreement" means this Sale and Servicing Agreement, as the same may be
amended or supplemented from time to time.
"Amount Financed" means with respect to a Receivable, the amount advanced
under the Receivable toward the purchase price of the Financed Vehicle and any
related costs, exclusive of any amount allocable to the premium of
force-placed physical damage insurance covering the Financed Vehicle.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of interest stated in the related Contract.
"Basic Documents" means the Trust Agreement, the Indenture, this
Agreement, the Receivables Purchase Agreement, the Administration Agreement,
the Securities Account Control Agreement, and the Note Depository Agreement
and other documents and certificates delivered in connection therewith.
1
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or any other day on which banking institutions or trust companies in
the States of New York, Alabama, Delaware or the state where the Subservicer's
principal servicing center is located, are authorized or required by law,
executive order or governmental decree to be closed.
"Certificate" means a certificate evidencing the beneficial interest of a
Certificateholder in the Trust, executed and countersigned as provided in the
Trust Agreement and substantially in the form set forth in Exhibit A therein.
"Certificate Interest Distribution Account" has the meaning assigned to
such term in the Trust Agreement.
"Certificate Principal Distribution Account" has the meaning assigned to
such term in the Trust Agreement.
"Certificateholder" or "Holder" shall mean a Person in whose name a
Certificate is registered.
"Certificateholders' Interest Distributable Amount" means, with respect
to any Payment Date, the sum of the Certificateholders' Monthly Interest
Distributable Amount for such Payment Date and the Certificateholders'
Interest Carryover Shortfall for such Payment Date.
"Class" means any one of the classes of Notes or the Certificates.
"Class [A] Note" means any Class [A-1] Note, Class [A-2] Note, Class
[A-3] Note or Class [A-4] Note.
"Class [A] Noteholders' Interest Distributable Amount" means, with
respect to any Payment Date, the sum of the Class [A-1] Interest Distributable
Amount for such Payment Date, the Class [A-2] Interest Distributable Amount
for such Payment Date, the Class [A-3] Interest Distributable Amount for such
Payment Date and, the Class [A-4] Interest Distributable Amount for such
Payment Date.
"Class [A-1] Final Scheduled Payment Date" means the Payment Date in
[DATE].
"Class [A-1] Interest Carryover Shortfall" means, with respect to any
Payment Date, the amount, if any, by which the sum of the Class [A-1] Monthly
Interest Distributable Amount for the preceding Payment Date and any
outstanding Class [A-1] Interest Carryover Shortfall on such preceding Payment
Date exceeds the amount in respect of interest for the Class [A-1] Notes
actually deposited in the Note Interest Distribution Account on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class [A-1] Noteholders on such preceding Payment Date, to the extent
permitted by law, at the Class [A-1] Rate.
"Class [A-1] Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class [A-1] Monthly Interest Distributable Amount
for such Payment Date and the Class [A-1] Interest Carryover Shortfall for
such Payment Date.
2
"Class [A-1] Monthly Interest Distributable Amount" means, with respect
to any Payment Date, interest accrued from and including the prior Payment
Date (or, in the case of the first Payment Date, from and including the
Closing Date) to and including the day immediately prior to such Payment Date,
on the Class [A-1] Notes at the Class [A-1] Rate on the Outstanding Amount of
the Class [A-1] Notes on the immediately preceding Payment Date (or, in the
case of the first Payment Date, the Closing Date), after giving effect to all
distributions of principal to the Class [A-1] Noteholders on or prior to such
preceding Payment Date. For all purposes of this Agreement and the other Basic
Documents, interest with respect to the Class [A-1] Notes shall be computed on
the basis of [the actual number of days in the related Interest Accrual Period
and a 360-day year].
"Class [A-1] Note Balance" means, as of any date of determination, the
Initial Class [A-1] Note Balance less all amounts distributed to Class [A-1]
Noteholders on or prior to such date and allocable to principal.
"Class [A-1] Noteholder" means the Person in whose name a Class [A-1]
Note is registered in the Note Register.
"Class [A-1] Notes" means the [____]% Asset Backed Notes, Class [A-1],
substantially in the form of Exhibit A-1 to the Indenture.
"Class [A-1] Rate" means [____]% per annum.
"Class [A-2] Final Scheduled Payment Date" means the Payment Date in
[DATE].
"Class [A-2] Interest Carryover Shortfall" means, with respect to any
Payment Date, the amount, if any, by which the sum of the Class [A-2] Monthly
Interest Distributable Amount for the preceding Payment Date and any
outstanding Class [A-2] Interest Carryover Shortfall on such preceding Payment
Date exceeds the amount in respect of interest for the Class [A-2] Notes
actually deposited in the Note Interest Distribution Account on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class [A-2] Noteholders on such preceding Payment Date, to the extent
permitted by law, at the Class [A-2] Rate.
"Class [A-2] Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class [A-2] Monthly Interest Distributable Amount
for such Payment Date and the Class [A-2] Interest Carryover Shortfall for
such Payment Date.
"Class [A-2] Monthly Interest Distributable Amount" means, with respect
to any Payment Date, interest accrued from and including the [15th] day of the
preceding calendar month (or, in the case of the first Payment Date, from and
including the Closing Date) to and including the [14th] day of the calendar
month in which such Payment Date occurs, on the Class [A-2] Notes at the Class
[A-2] Rate on the Outstanding Amount of the Class [A-2] Notes on the
immediately preceding Payment Date (or, in the case of the first Payment Date,
the Closing Date), after giving effect to all distributions of principal to
the Class [A-2] Noteholders on or prior to such preceding Payment Date. For
all purposes of this Agreement and the other Basic Documents, interest with
respect to the Class [A-2] Notes shall be computed on the basis of [a 360-day
year consisting of twelve 30-day months].
3
"Class [A-2] Noteholder" means the Person in whose name a Class [A-2]
Note is registered in the Note Register.
"Class [A-2] Notes" means the [____]% Asset Backed Notes, Class [A-2],
substantially in the form of Exhibit A-2 to the Indenture.
"Class [A-2] Rate" means [____]% per annum.
"Class [A-3] Final Scheduled Payment Date" means the Payment Date in
[DATE].
"Class [A-3] Interest Carryover Shortfall" means, with respect to any
Payment Date, the amount, if any, by which the sum of the Class [A-3] Monthly
Interest Distributable Amount for the preceding Payment Date and any
outstanding Class [A-3] Interest Carryover Shortfall on such preceding Payment
Date exceeds the amount in respect of interest for the Class [A-3] Notes
actually deposited in the Note Interest Distribution Account on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class [A-3] Noteholders on such preceding Payment Date, to the extent
permitted by law, at the Class [A-3] Rate.
"Class [A-3] Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class [A-3] Monthly Interest Distributable Amount
for such Payment Date and the Class [A-3] Interest Carryover Shortfall for
such Payment Date.
"Class [A-3] Monthly Interest Distributable Amount" means, with respect
to any Payment Date, interest accrued from and including the [15th] day of the
preceding calendar month (or, in the case of the first Payment Date, from and
including the Closing Date) to and including the [14th] day of the calendar
month in which such Payment Date occurs, on the Class [A-3] Notes at the Class
[A-3] Rate on the Outstanding Amount of the Class [A-3] Notes on the
immediately preceding Payment Date (or, in the case of the first Payment Date,
the Closing Date), after giving effect to all distributions of principal to
the Class [A-3] Noteholders on or prior to such preceding Payment Date. For
all purposes of this Agreement and the other Basic Documents, interest with
respect to the Class [A-3] Notes shall be computed on the basis of [a 360-day
year consisting of twelve 30-day months].
"Class [A-3] Noteholder" means the Person in whose name a Class [A-3]
Note is registered in the Note Register.
"Class [A-3] Notes" means the [____]% Asset Backed Notes, Class [A-3],
substantially in the form of Exhibit A-3 to the Indenture.
"Class [A-3] Rate" means [____]% per annum.
"Class [A-4] Final Scheduled Payment Date" means the Payment Date in
[DATE].
"Class [A-4] Interest Carryover Shortfall" means, with respect to any
Payment Date, the amount, if any, by which the sum of the Class [A-4] Monthly
Interest Distributable Amount for the preceding Payment Date and any
outstanding Class [A-4] Interest Carryover Shortfall on such preceding Payment
Date exceeds the amount in respect of interest for the Class [A-4] Notes
actually deposited in the Note Interest Distribution Account on such preceding
Payment Date,
4
plus interest on the amount of interest due but not paid to the Class [A-4]
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class [A-4] Rate.
"Class [A-4] Interest Distributable Amount" means, with respect to any
Payment Date, the sum of the Class [A-4] Monthly Interest Distributable Amount
for such Payment Date and the Class [A-4] Interest Carryover Shortfall for
such Payment Date.
"Class [A-4] Monthly Interest Distributable Amount" means, with respect
to any Payment Date, interest accrued from and including the [15th] day of the
preceding calendar month (or, in the case of the first Payment Date, from and
including the Closing Date) to and including the [14th] day of the calendar
month in which such Payment Date occurs, on the Class [A-4] Notes at the Class
[A-4] Rate on the Outstanding Amount of the Class [A-4] Notes on the
immediately preceding Payment Date (or, in the case of the first Payment Date,
the Closing Date), after giving effect to all distributions of principal to
the Class [A-4] Noteholders on or prior to such preceding Payment Date. For
all purposes of this Agreement and the other Basic Documents, interest with
respect to the Class [A-4] Notes shall be computed on the basis of [a 360-day
year consisting of twelve 30-day months].
"Class [A-4] Noteholder" means the Person in whose name a Class [A-4]
Note is registered in the Note Register.
"Class [A-4] Notes" means the [____]% Asset Backed Notes, Class [A-4],
substantially in the form of Exhibit A-4 to the Indenture.
"Class [A-4] Rate" means [____]% per annum.
"Class [B] Final Scheduled Payment Date" means the Payment Date in
[DATE].
"Class [B] Interest Carryover Shortfall" means, with respect to any
Payment Date, the amount, if any, by which the sum of the Class [B] Monthly
Interest Distributable Amount for the preceding Payment Date and any
outstanding Class [B] Interest Carryover Shortfall on such preceding Payment
Date exceeds the amount in respect of interest for the Class [B] Notes
actually deposited in the Note Interest Distribution Account on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class [B] Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class [B] Rate.
"Class [B] Monthly Interest Distributable Amount" means, with respect to
any Payment Date, interest accrued from and including the [15th] day of the
preceding calendar month (or, in the case of the first Payment Date, from and
including the Closing Date) to and including the [14th] day of the calendar
month in which such Payment Date occurs, on the Class [B] Notes at the Class
[B] Rate on the Outstanding Amount of the Class [B] Notes on the immediately
preceding Payment Date (or, in the case of the first Payment Date, the Closing
Date), after giving effect to all distributions of principal to the Class [B]
Noteholders on or prior to such preceding Payment Date. For all purposes of
this Agreement and the other Basic Documents, interest with respect to the
Class [B] Notes shall be computed on the basis of [a 360-day year consisting
of twelve 30-day months].
5
"Class [B] Noteholder" means the Person in whose name a Class [B] Note is
registered in the Note Register.
"Class [B] Noteholders' Interest Distributable Amount" means, with
respect to any Payment Date, the sum of the Class [B] Monthly Interest
Distributable Amount for such Payment Date and the Class [B] Interest
Carryover Shortfall for such Payment Date.
"Class [B] Notes" means the [____]% Asset Backed Notes, Class [B],
substantially in the form of Exhibit B to the Indenture.
"Class [B] Rate" means [____]% per annum.
"Class [C] Certificate" means a certificate for Regions Auto Receivables
Trust, Series 200__-__, designated Class [C], executed and countersigned as
provided in the Trust Agreement and substantially in the form set forth in
Exhibit A therein.
"Class [C] Certificate Balance" equals the Initial Class [C] Certificate
Balance reduced by all amounts allocable to principal previously distributed
to Class [C] Certificateholders.
"Class [C] Certificate Pool Factor" means, as of the close of business on
the last day of a Collection Period, a seven-digit decimal figure equal to the
Class [C] Certificate Balance (after giving effect to any reductions therein
to be made on the immediately following Payment Date) divided by the Initial
Class [C] Certificate Balance. The Class [C] Certificate Pool Factor will be
1.0000000 as of the Closing Date; thereafter, the Class [C] Certificate Pool
Factor will decline to reflect reductions in the Class [C] Certificate
Balance.
"Class [C] Certificateholder" is a Holder of a Class [C] Certificate.
"Class [C] Certificateholders' Interest Carryover Shortfall" means, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
[C] Certificateholders' Monthly Interest Distributable Amount for the
immediately preceding Payment Date and any outstanding Class [C]
Certificateholders' Interest Carryover Shortfall on such preceding Payment
Date exceeds the amount in respect of interest actually deposited in the
Certificate Interest Distribution Account pursuant to Section 5.06(b)(vi),
plus interest on the amount of interest due but not paid to the Class [C]
Certificateholders on such preceding Payment Date, to the extent permitted by
law, at the Class [C] Rate.
"Class [C] Certificateholders' Monthly Interest Distributable Amount"
means, with respect to any Payment Date, interest accrued from and including
the [15th] day of the preceding calendar month (or, in the case of the first
Payment Date, from and including the Closing Date) to and including the [14th]
day of the calendar month in which such Payment Date occurs, on the Class [C]
Certificates at the Class [C] Rate on the Class [C] Certificate Balance on the
immediately preceding Payment Date (or, in the case of the first Payment Date,
the Closing Date), after giving effect to all distributions of principal to
the Class [C] Certificateholders on or prior to such preceding Payment Date.
Interest with respect to the Certificates shall be computed on the basis of [a
360-day year consisting of twelve 30-day months] for all purposes of this
Agreement and the Basic Documents.
6
"Class [C] Final Scheduled Payment Date" means the Payment Date in
[DATE].
"Class [C] Rate" means [____]% per annum.
"Closing Date" means [DATE].
"Collateral" has the meaning specified in the Granting Clause of the
Indenture.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.01(a).
"Collection Period" means with respect to any Payment Date, the calendar
month preceding such Payment Date. Any amount stated as of the last day of a
Collection Period or as of the first day of a Collection Period shall give
effect to the following calculations as determined as of the close of business
on such last day: (i) all applications of collections and (ii) all
distributions to be made on the following Payment Date.
"Contract" means a [retail installment sales contract, retail installment
loan, purchase money note or other note].
"Controlling Party" means (i) if the Notes have not been paid in full,
the Indenture Trustee acting at the direction of at least a majority in
Outstanding Amount of the Noteholders and (ii) if the Notes have been paid in
full, the Owner Trustee for the benefit of the Certificateholders.
"Conveyed Assets" shall have the meaning set forth in Section 2.01.
"Corporate Trust Administration Department" shall have the meaning set
forth in the Trust Agreement.
"Corporate Trust Office" shall have the meaning set forth in the
Indenture.
"Cram Down Loss" means any loss resulting from an order issued by a court
of appropriate jurisdiction in an insolvency proceeding that reduces the
amount owed on a Receivable or otherwise modifies or restructures the
scheduled payments to be made thereon. The amount of any such Cram Down Loss
will equal the excess of (i) the principal balance of the Receivable
immediately prior to such order over (ii) the principal balance of such
Receivable as so reduced, modified or restructured. A Cram Down Loss will be
deemed to have occurred on the date on which the Master Servicer receives
notice of such order.
"Custodian" means [CUSTODIAN], in its capacity as custodian of the
Receivables.
"Dealer" means the dealer which sold a Financed Vehicle and through which
Regions Bank originated the related Receivable or which originated the related
Receivable and assigned it to Regions Bank pursuant to a Dealer Agreement or
form of assignment, as applicable.
7
"Dealer Agreement" means an agreement between Regions Bank and a Dealer
pursuant to which such Dealer sells Contracts to Regions Bank or Regions Bank
originates Contracts through such Dealer, substantially in the form of Exhibit
D-2 hereto.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to any "instruments" within the meaning of Section
9-102(a)(47) of the UCC and are susceptible of physical delivery, transfer
thereof to the Indenture Trustee by physical delivery to the Indenture Trustee
endorsed to, or registered in the name of, the Indenture Trustee or endorsed
in blank, and, with respect to a certificated security (as defined in Section
8-102 of the UCC) transfer thereof (i) by delivery of such certificated
security endorsed to, or registered in the name of, the Indenture Trustee or
(ii) by delivery thereof to a "clearing corporation" (as defined in Section
8-102 of the UCC) and the making by such clearing corporation of appropriate
entries on its books reducing the appropriate securities account of the
transferor and increasing the appropriate securities account of the Indenture
Trustee by the amount of such certificated security and the identification by
the clearing corporation of the certificated securities for the sole and
exclusive account of the Indenture Trustee (all of the foregoing, "Physical
Property"), and, in any event, any such Physical Property in registered form
shall be in the name of the Indenture Trustee or its nominee; and such
additional or alternative procedures as may hereafter become appropriate to
effect the complete transfer of ownership of any such Trust Account Property
to the Indenture Trustee or its nominee or custodian, consistent with changes
in applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the Federal
Home Loan Mortgage Corporation or by the Federal National Mortgage Association
that is a book-entry security held through the Federal Reserve System pursuant
to federal book-entry regulations, the following procedures, all in accordance
with applicable law, including applicable federal regulations and Articles 8
and 9 of the UCC: book-entry registration of such Trust Account Property to an
appropriate book-entry account maintained with a Federal Reserve Bank by a
securities intermediary that is also a "depository" pursuant to applicable
federal regulations; the making by such securities intermediary of entries in
its books and records crediting such Trust Account Property to the Indenture
Trustee's security account at the securities intermediary and identifying such
book-entry security held through the Federal Reserve System pursuant to
federal book-entry regulations as belonging to the Indenture Trustee; and such
additional or alternative procedures as may hereafter become appropriate to
effect complete transfer of ownership of any such Trust Account Property to
the Indenture Trustee, consistent with changes in applicable law or
regulations or the interpretation thereof;
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed by
clause (b) above, registration on the books and records of the issuer thereof
in the name of the Indenture Trustee or its nominee or custodian who either
(i) becomes the registered owner on behalf of the Indenture Trustee or (ii)
having previously become the registered owner, acknowledges that it holds for
the Indenture Trustee; and
8
(d) with respect to any item of Trust Account Property that is a security
entitlement causing the securities intermediary to indicate on its books and
records that such security entitlement has been credited to a securities
account of the Indenture Trustee.
"Depositor" means Regions Acceptance LLC and its successors in interest.
"Determination Date" means, with respect to each Payment Date, the
earlier of (i) the [eleventh] calendar day of the month in which such Payment
Date occurs (or if such [eleventh] day is not a Business Day, the next
succeeding Business Day) and (ii) the [third] Business Day preceding such
Payment Date.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any State, having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution shall have a credit rating from each
Rating Agency in one of its generic rating categories that signifies
investment grade.
"Eligible Institution" means (a) the corporate trust department of the
Indenture Trustee or the Owner Trustee or (b) a depository institution
organized under the laws of the United States of America or any State, that
(i) has either (A) a long-term unsecured debt rating of at least ["AA-"] by
[RATING AGENCY] and ["A2"] by [RATING AGENCY] or (B) a short-term unsecured
debt rating or certificate of deposit rating of at least ["A-1+"] by [RATING
AGENCY] and ["Prime-1"] by [RATING AGENCY] and (ii) the deposits of which are
insured by the FDIC.
"Eligible Investments" means [securities, negotiable instruments or
security entitlements, excluding any security with an "r" attached to the
rating thereof,] that evidence:
(a) [direct obligations of, and obligations fully guaranteed as to the
full and timely payment by, the United States of America;]
(b) [demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any State (or any domestic branch of a foreign
bank) and subject to supervision and examination by federal or state banking
or depository institution authorities; provided, however, that at the time of
the investment or contractual commitment to invest therein, the commercial
paper or other short-term unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other than
such depository institution or trust company) thereof shall have a credit
rating from each Rating Agency in the highest investment category granted
thereby;]
(c) [commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each Rating Agency in
the highest investment category granted thereby;]
(d) [investments in money market funds having a rating from each Rating
Agency in the highest investment category granted thereby (including funds for
which the Indenture Trustee or the Owner Trustee or any of their respective
Affiliates is investment manager or advisor);]
9
(e) [bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;]
(f) [repurchase obligations with respect to any security that is a direct
obligation of, or fully guaranteed by, the United States of America or any
agency or instrumentality thereof the obligations of which are backed by the
full faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
described in clause; and]
(g) [any other investment with respect to which the Rating Agency
Condition is met and the Issuer, the Indenture Trustee or the Master Servicer
has received written notification from [RATING AGENCY] that the acquisition of
such investment will not result in a reduction, withdrawal or downgrade of the
then-current rating of any Class of Securities.]
"Eligible Master Servicer" means [Regions Bank or any other Person that
at the time of its appointment as Master Servicer (i) is servicing a portfolio
of [retail installment sales contracts, retail installment loans, purchase
money notes or other notes], (ii) is legally qualified and has the capacity to
service the Receivables, (iii) has demonstrated the ability professionally and
competently to service a portfolio of [retail installment sales contracts,
retail installment loans, purchase money notes or other notes] similar to the
Receivables with reasonable skill and care and (iv) has a minimum net worth of
$50,000,000].
"Extension Policy" shall mean the policies of the Master Servicer with
respect to granting extensions on the Contracts as set forth on Exhibit D-1
hereto.
"FDIC" means the Federal Deposit Insurance Corporation, and its
successors.
"Final Scheduled Payment Date" means the Class [A-1] Final Scheduled
Payment Date, the Class [A-2] Final Scheduled Payment Date, the Class [A-3]
Final Scheduled Payment Date, the Class [A-4] Final Scheduled Payment Date,
the Class [B] Final Scheduled Payment Date or the Class [C] Final Scheduled
Payment Date, as applicable.
"Financed Vehicle" means a new or used automobile, light-duty truck, van,
minivan or sport utility vehicle, together with all accessions thereto,
securing an Obligor's indebtedness under the related Contract.
"First Allocation of Principal" means, with respect to any Payment Date,
the excess, if any, of (x) the aggregate Outstanding Amount of the Class [A]
Notes (as of the day immediately preceding such Payment Date) over (y) the
Pool Balance for such Payment Date.
"Indenture" means the Indenture, dated as of [DATE], between the Issuer
and the Indenture Trustee.
"Indenture Trustee" means the Person acting as Indenture Trustee under
the Indenture, its successors in interest and any successor trustee under the
Indenture.
"Initial Class [A-1] Note Balance" means $[____].
10
"Initial Class [A-2] Note Balance" means $[____].
"Initial Class [A-3] Note Balance" means $[____].
"Initial Class [A-4] Note Balance" means $[____]
"Initial Class [B] Note Balance" means $[____].
"Initial Class [C] Certificate Balance" means $[____].
"Initial Cutoff Date" means the close of business on [DATE].
"Initial Overcollateralization Amount" means $[____].
"Initial Pool Balance" means an amount equal to the aggregate Principal
Balance, as of the Initial Cutoff Date, of the Receivables listed on Schedule
B hereto that were originated on or prior to the Initial Cutoff Date.
"Initial Receivable" means any Contract listed on Schedule A (which
Schedule may be in the form of microfiche).
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or
ordering the winding-up or liquidation of such Person's affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (b) the commencement by such Person of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by such Person to the entry of
an order for relief in an involuntary case under any such law, or the consent
by such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or the making by such
Person of any general assignment for the benefit of creditors, or the failure
by such Person generally to pay its debts as such debts become due, or the
taking of action by such Person in furtherance of any of the foregoing.
"Interest Accrual Period" means, with respect to the Class [A-1] Notes,
the period from and including the most recent Payment Date on which interest
has been paid (or, in the case of the first Payment Date, the Closing Date) to
and including the day before the Payment Date and, with respect to the Class
[A-2] Notes, the Class [A-3] Notes, the Class [A-4] Notes, the Class [B] Notes
and the Certificates, the period from and including the [15th] day of the
preceding calendar month (or, in the case of the first Payment Date, the
Closing Date) to and including the [14th] day of the calendar month in which
such Payment Date occurs.
"Interest Distribution Amount" means, with respect to any Payment Date,
the sum of the following amounts, without duplication, with respect to the
Receivables in respect of the Collection Period preceding such Payment Date:
(a) that portion of all collections on
11
Receivables allocable to interest, (b) the Purchase Amount of each Receivable
that became a Purchased Receivable during such Collection Period to the extent
attributable to accrued interest on such Receivable, (c) Recoveries for such
Collection Period, (d) Investment Earnings for the related Payment Date, (e)
Liquidation Proceeds for such Collection Period to the extent allocable to
interest, and (f) Net Investment Losses required to be deposited by the Master
Servicer; provided, however, that in calculating the Interest Distribution
Amount the following will be excluded: all payments and proceeds (including
Liquidation Proceeds) of any Purchased Receivables the Purchase Amount of
which has been included in the Interest Distribution Amount in a prior
Collection Period.
"Investment Earnings" means, with respect to any Payment Date, the
investment earnings (net of losses and investment expenses) on amounts on
deposit in a Trust Account (other than the Collection Account) to be applied
on such Payment Date pursuant to Section 5.01(e).
"Issuer" means [__________], acting not in its individual capacity but
solely as Owner Trustee of Regions Auto Receivables Trust 200__-__.
"Joint Origination Agreement" means the joint origination agreement dated
as of ______, 20__, between the Subservicer and the Master Servicer, as it may
be amended or restated from time to time, pursuant to which [______] sells
Receivables to Regions Bank, which [______] has either originated or purchased
through dealers.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that attach to the respective Receivable by operation of law as a result of
any act or omission by the related Obligor.
"Liquidated Receivable" means a Receivable with respect to which the
earliest of the following shall have occurred: (i) the related Financed
Vehicle has been repossessed and liquidated, (ii) the related Financed Vehicle
has been repossessed in excess of 60 days and has not yet been liquidated,
(iii) the Master Servicer has determined in accordance with its collection
policies that all amounts that it expects to receive with respect to the
Receivable have been received or (iv) the end of the Collection Period in
which the Receivable becomes 120 days or more past due.
"Liquidation Proceeds" means, with respect to any Receivable that becomes
a Liquidated Receivable, the moneys collected in respect thereof, from
whatever source, during or after the Collection Period in which such
Receivable became a Liquidated Receivable, including liquidation of the
related Financed Vehicle, net of the sum of any out-of-pocket expenses of the
Master Servicer reasonably allocated to such liquidation and any amounts
required by law to be remitted to the Obligor on such Liquidated Receivable.
"Master Servicer" means Regions Bank, as the master servicer of the
Receivables, and each successor to Regions Bank (in the same capacity)
pursuant to Section 7.03 or 8.03.
"Master Servicer Termination Event" shall have the meaning set forth in
Section 8.01.
"Master Servicer's Certificate" means an Officers' Certificate of the
Master Servicer delivered pursuant to Section 4.09, substantially in the form
of Exhibit C.
12
"Minimum Required Rating" means, with respect to Regions Bank, a
short-term unsecured debt rating equal to or greater than "[RATING]" by
[RATING AGENCY] and "[RATING]" by [RATING AGENCY].
"Net Investment Losses" means, with respect to a Trust Account and any
Collection Period, the amount, if any, by which the aggregate of all losses
and expenses incurred during such period in connection with the investment of
funds in Eligible Investments in accordance with Section 5.01(e) exceeds the
aggregate of all interest and other income realized during such period on such
funds.
"Non-Master Servicer Termination Event" shall mean the occurrence and
continuation of any one of the following events:
(a) failure on the part of the Custodian, any Subcustodian or any
Subservicer duly to observe or to perform any other covenants or agreements of
the Custodian, any Subcustodian or the Subservicer set forth in this
Agreement, the Sub-Servicing Agreement or any other Basic Document, which
failure shall (i) materially and adversely affect the rights of the
Noteholders, the Issuer, the Owner Trustee or the Indenture Trustee and (ii)
continue unremedied for a period of 30 days after the date on which the
Custodian, any Subcustodian or the Subservicer shall have knowledge of such
failure or written notice of such failure, requiring the same to be remedied,
shall have been given to the Custodian, any Subcustodian or any Subservicer,
as the case may be, by the Issuer, the Owner Trustee or the Indenture Trustee;
(b) the occurrence of an Insolvency Event with respect to the Custodian,
any Subcustodian or the Subservicer;
(c) any representation, warranty or statement of the Custodian, any
Subcustodian or the Subservicer made in any Sub-Servicing Agreement or this
Agreement or the other Basic Documents or any certificate, report or other
writing delivered pursuant thereto or hereto shall prove to be incorrect in
any material respect as of the time when the same shall have been made, and
the incorrectness of such representation, warranty or statement has a material
adverse effect on the Noteholders and, within 30 days after written notice
thereof shall have been given to the Custodian, any Subcustodian or the
Subservicer, as applicable, by the Indenture Trustee or the Issuer, the
circumstance or condition in respect of which such representation, warranty or
statement was incorrect shall not have been eliminated or otherwise cured; or
(d) a Master Servicer Termination Event.
"Note Balance" means, as of any date of determination, an amount equal to
the sum of (i) the Initial Class [A-1] Note Balance, (ii) the Initial Class
[A-2] Note Balance, (iii) the Initial Class [A-3] Note Balance, (iv) the
Initial Class [A-4] Note Balance and (v) the Initial Class [B] Note Balance,
less all amounts distributed to Noteholders on or prior to such date and
allocable to principal.
"Note Interest Distribution Account" means the account designated as
such, established and maintained pursuant to Section 5.01(b).
13
"Note Pool Factor" means, with respect to each Class of Notes as of the
close of business on the last day of a Collection Period, a seven-digit
decimal figure equal to the Outstanding Amount of such Class of Notes (after
giving effect to any reductions thereof to be made on the immediately
following Payment Date) divided by the original Outstanding Amount of such
Class of Notes. The Note Pool Factor will be 1.0000000 as of the Closing Date;
thereafter, the Note Pool Factor will decline to reflect reductions in the
Outstanding Amount of such Class of Notes.
"Noteholders" shall mean the Class [A-1] Noteholders, the Class [A-2]
Noteholders, the Class [A-3] Noteholders, the Class [A-4] Noteholders or the
Class [B] Noteholders.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
related Financed Vehicle, and any other Person obligated to make payments
thereunder.
"Officers' Certificate" means a certificate signed by (a) the chairman of
the board, the president, any vice president, the controller or any assistant
controller and (b) a treasurer, assistant treasurer, secretary or assistant
secretary of the Depositor or the Master Servicer, as appropriate.
"Opinion of Counsel" means one or more written opinions of counsel, who
may be an employee of or counsel to the Depositor, the Master Servicer or the
Trust, which counsel shall be acceptable to the Indenture Trustee, the Owner
Trustee or the Rating Agencies, as applicable, and which shall be addressed to
the Owner Trustee and the Indenture Trustee and which shall be at the expense
of the person required to provide such an Opinion of Counsel.
"Original Pool Balance" means the sum of the Initial Pool Balance and the
Subsequent Pool Balance.
"Outstanding Amount" means, as of any date of determination and as to any
Notes, the aggregate principal amount of such Notes Outstanding (as defined in
the Indenture) as of such date of determination and, as of any date of
determination and as to any Certificates, the aggregate principal amount of
such Certificates Outstanding as of such date of determination.
"Overcollateralization Target Amount" means, as of the first Payment
Date, the Initial Overcollateralization Amount and, as of any Payment Date
thereafter, the greater of: (1) [____]% of the Pool Balance for such Payment
Date and (2) the aggregate Principal Balance of the Receivables (including
Receivables with respect to which the related Financed Vehicle has been
repossessed, but excluding Liquidated Receivables) that are 91 days or more
delinquent as of the last day of the related Collection Period.
"Owner Trustee" means [OWNER TRUSTEE], acting not in its individual
capacity but solely as owner trustee under the Trust Agreement.
"Payment Date" means, with respect to each Collection Period, the
[________] day of the following month or, if such day is not a Business Day,
the immediately following Business Day, commencing on [DATE].
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
14
"Pool Balance" means, with respect to any Payment Date, an amount equal
to the aggregate Principal Balance of the Receivables at the end of the
related Collection Period, after giving effect to all payments of principal
received from Obligors and Purchase Amounts to be remitted by the Master
Servicer or the Seller for the related Collection Period, and after adjustment
for Cram Down Losses and reduction to zero of the aggregate outstanding
Principal Balance of all Receivables that became Liquidated Receivables during
such Collection Period.
"Principal Balance" means, with respect to any Receivable and a
Determination Date, the Amount Financed minus an amount equal to the sum, as
of the close of business on the last day of the related Collection Period, of
(1) that portion of all amounts received on or prior to such day with respect
to such Receivable and allocable to principal using the Simple Interest
Method, and (2) any Cram Down Losses with respect to such Receivable; provided
that the Principal Balance of any Receivable that has become a Liquidated
Receivable shall be zero.
"Principal Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.01(c).
"Purchase Amount" means, with respect to any Receivable that became a
Purchased Receivable, the unpaid principal balance owed by the Obligor thereon
plus unpaid interest on such amount at the applicable APR to the last day of
the month of repurchase.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by or on behalf of the Master
Servicer pursuant to Section 4.07 or by or on behalf of the Seller pursuant to
Section 3.03 and the Receivables Purchase Agreement.
"Rating Agency" means [RATING AGENCY] or [RATING AGENCY], as the context
may require. If none of [RATING AGENCY], [RATING AGENCY] or a successor
thereto remains in existence, "Rating Agency" shall mean any nationally
recognized statistical rating organization or other comparable Person
designated by the Depositor.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' (or such shorter period as shall
be acceptable to each Rating Agency) prior notice thereof and that each Rating
Agency shall not have notified the Issuer or the Indenture Trustee in writing
that such action will result in a reduction, withdrawal or down-grade of the
then-current rating of any Class of Securities.
"Realized Losses" means, as to any Payment Date, the amount, if any, by
which the outstanding aggregate Principal Balance of all Receivables that
became Liquidated Receivables during the related Collection Period exceeds
that portion allocable to principal of all net Liquidation Proceeds received
with respect to such Liquidated Receivables.
"Receivable Files" means the following documents with respect to each
Financed Vehicle:
(i) the fully executed original of each Receivable (together with
any agreements modifying each such Receivable, including any extension
agreement);
(ii) the original credit application, or an electronic copy thereof;
15
(iii) the original certificate of title or such other documents that
the Master Servicer or the Seller shall keep on file in accordance with
its customary procedures evidencing the security interest of the Seller
in the related Financed Vehicle; and
(iv) any and all other documents that the Master Servicer shall have
kept on file in accordance with its customary procedures relating to a
Receivable, an Obligor or a Financed Vehicle.
"Receivables" means any contract listed on Schedule B (which Schedule may
be in the form of microfiche).
"Receivables Purchase Agreement" means the Receivables Purchase Agreement
dated as of [DATE], between Regions Bank, as seller and Regions Acceptance
LLC, as depositor.
"Record Date" means (a) with respect to the Notes, as to any Payment
Date, the day immediately preceding such Payment Date unless the Notes are no
longer Book-Entry Notes, in which case the Record Date will be the last day of
the month preceding such Payment Date, and (b) with respect to the
Certificates, the last day of the month preceding such Payment Date.
"Recoveries" means, with respect to any Receivable that becomes a
Liquidated Receivable, monies collected in respect thereof, from whatever
source, during any Collection Period following the Collection Period in which
such Receivable became a Liquidated Receivable, net of the sum of any amounts
expended by the Master Servicer for the account of the Obligor and any amounts
required by law to be remitted to the Obligor.
"Regions Bank" means Regions Bank, an Alabama state banking corporation.
"Regular Principal Allocation" means, with respect to any Payment Date,
the excess, if any, of the aggregate Outstanding Amount of the Securities as
of the day immediately preceding such Payment Date over (a) the Pool Balance
with respect to such Payment Date less (b) the Overcollateralization Target
Amount with respect to such Payment Date; provided however, that the Regular
Principal Allocation on any Payment Date shall not exceed the Outstanding
Amount of the Securities as of the day immediately preceding such Payment Date
and provided further, that the Regular Principal Allocation on or after the
Final Scheduled Payment Date of any Class of Securities shall not be less than
the amount that is necessary to reduce the Outstanding Amount of such Class of
Securities to zero.
"Regular Principal Distributable Amount" means, with respect to any
Payment Date, the sum of the following amounts, without duplication, with
respect to the related Collection Period: (i) that portion of all collections
on the Receivables allocable to principal, (ii) the aggregate outstanding
principal balance of all Receivables that became Liquidated Receivables during
such Collection Period, (iii) the aggregate amount of any Cram Down Losses,
and (iv) that portion allocable to principal of the Purchase Amount of all
Receivables that became Purchased Receivables during or in respect of such
Collection Period.
"Reserve Account" means the account designated as such, established by
the Issuer and maintained by the Indenture Trustee pursuant to Section
5.01(d).
16
"Reserve Account Initial Deposit" means $[____].
"Reserve Account Release Amount" means, with respect to any Payment Date,
the excess, if any, of (i) the amount on deposit in the Reserve Account on
such Payment Date (prior to giving effect to any withdrawals therefrom
relating to such Payment Date) over (ii) the Reserve Account Required Amount
with respect to such Payment Date.
"Reserve Account Required Amount" means (a) on the Closing Date, the
Reserve Account Initial Deposit and (b) with respect to any Payment Date, an
amount equal to [____]% of the Pool Balance as of the end of the related
Collection Period; provided, however, that in no event shall the Reserve
Account Required Amount be less than the lesser of (a) $[_________] and (b)
the aggregate principal amount of the Securities on such Payment Date (after
giving effect to distributions on such date).
"Reserve Account Withdrawal Amount" means, with respect to each Payment
Date, the lesser of (i) the amount then on deposit in the Reserve Account
(after giving effect to any withdrawals therefrom relating to any Reserve
Account Release Amount for such Payment Date) and (ii) the excess, if any, of
the sum of following amounts for such Payment Date over the Total Distribution
Amount for such Payment Date:
(A) the aggregate amount required to be paid pursuant to Sections
5.06(b)(i),(ii),(iv) and (vi);
(B) in the case of any Payment Date occurring on or after the Final
Scheduled Payment Date of any Class of Securities, the amount required to be
paid pursuant to Section 5.06(b)(vii) in reduction of the Outstanding Amount
of such Class of Securities; and
(C) if the aggregate Outstanding Amount of the Securities (after
giving effect to distributions from the Total Distribution Amount on such
Payment Date) exceeds the Pool Balance with respect to such Payment Date, an
amount equal to the excess of such aggregate Outstanding Amount of the
Securities over such Pool Balance, reduced by any amount required to be paid
pursuant to Section 5.06(b)(vii) in reduction of the Outstanding Amount of a
Class of Securities on the Final Payment Date of such Class of Securities.
"Responsible Officer" means the chairman of the board, the president, any
executive vice president, any vice president, the treasurer, any assistant
treasurer, the secretary, or any assistant secretary of the Master Servicer.
Responsible Officer of the Owner Trustee shall be as defined in the Indenture.
"Scheduled Payment" means, with respect to each Receivable, the scheduled
monthly payment amount set forth in the related Contract and required to be
paid by the Obligor during each Collection Period.
"Second Allocation of Principal" means, with respect to any Payment Date,
the excess, if any, of (x) the aggregate Outstanding Amount of the Class [A]
Notes and the Class [B] Notes (as of the day immediately preceding such
Payment Date) over (y) the Pool Balance for such Payment Date.
17
"Securities" means the Notes and the Certificates.
"Securities Account Control Agreement" means the Securities Account
Control Agreement dated as of [DATE] among the Issuer, the Indenture Trustee
and the Securities Intermediary.
"Securities Intermediary" means [SECURITIES INTERMEDIARY], in its
capacity as the securities intermediary in the Securities Account Control
Agreement dated as of [DATE].
"Securityholders" means the Noteholders and/or the Certificateholders, as
the context may require.
"Seller" means Regions Bank and its successors in interest, as seller of
the Receivables to the Depositor pursuant to the Receivables Purchase
Agreement.
"Servicing Fee" means an amount equal to the sum of (i) the product of
the Servicing Fee Rate and the Pool Balance as of the first day of the related
Collection Period, and (ii) any late fees, prepayment charges, extension fees
and other administrative fees or similar charges collected on the Receivables.
"Servicing Fee Rate" means [____]% per annum.
"Simple Interest Method" means the method of allocating the monthly
payments received with respect to a Receivable to interest in an amount equal
to the product of (i) the applicable APR, (ii) the period of time (expressed
as a fraction of a year, based on the actual number of days in the calendar
month and 365 or 366 days, as applicable, in the calendar year) elapsed since
the preceding payment was made under such Receivable and (iii) the outstanding
principal amount of such Receivable, and allocating the remainder of each such
monthly payment to principal.
"Subcustodian" shall mean [_________], in its capacity as the
subcustodian of the Receivables under Section 3.04 and, upon succession in
accordance herewith, each successor subcustodian in the same capacity pursuant
to Section 3.04.
"Subsequent Pool Balance" means an amount equal to the aggregate
Principal Balance, as of the date of origination, of the Receivables listed on
Schedule B hereto that were originated after the Initial Cutoff Date.
"Subservicer" shall mean [_________], in its capacity as the subservicer
of the Receivables under Section 4.01, and, upon succession in accordance
herewith, each successor subservicer in the same capacity pursuant to Section
4.01.
"Sub-Servicing Agreement" shall mean any subservicing agreement between
the Master Servicer and a subservicer, as the same may be amended,
supplemented or otherwise modified and in effect from time to time, including
the [_________] Sub-Servicing Agreement.
18
"Total Distribution Amount" means, for each Payment Date, the sum of the
related Interest Distribution Amount and the related Regular Principal
Distributable Amount (other than the portion thereof attributable to Realized
Losses or Cram Down Losses).
"Trust" means the Issuer.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form
of deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise) and all proceeds of the foregoing.
"Trust Accounts" shall mean the Collection Account, the Note Interest
Distribution Account, Principal Distribution Account and the Reserve Account.
"Trust Agreement" means the Trust Agreement, dated as of [DATE], between
the Depositor and the Owner Trustee.
"Trustee Fee Rates" means the rates at which the fees and expenses are
due to the Indenture Trustee and the Owner Trustee.
"Trust Officer" means, in the case of the Indenture Trustee, any Officer
within the [DEPARTMENT] of the Indenture Trustee (or any successor
department), including any Assistant Vice President, Assistant Treasurer,
Assistant Secretary or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, in each case having direct
responsibility for the administration of the Basic Documents and, with respect
to the Owner Trustee, any officer in the Corporate Trust Administration
Department of the Owner Trustee with direct responsibility for the
administration of the Trust Agreement and the other Basic Documents on behalf
of the Owner Trustee.
"UCC" means the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"Weighted Average Security Rate" means the percentage equivalent of a
fraction, the numerator of which is the sum of (1) the product of the Class
[A-1] Rate times the Initial Class [A-1] Note Balance, (2) the product of the
Class [A-2] Rate times the Initial Class [A-2] Note Balance, (3) the product
of the Class [A-3] Rate times the Initial Class [A-3] Note Balance, (4) the
product of the Class [A-4] Rate times the Initial Class [A-4] Note Balance,
(5) the product of the Class [B] Rate times the Initial Class [B] Note Balance
and (6) the product of the Class [C] Rate times the Initial Class [C]
Certificate Balance and the denominator of which is the sum of the Initial
Class [A-1] Note Balance, the Initial Class [A-2] Note Balance, the Initial
Class [A-3] Note Balance, the Initial Class [A-4] Note Balance, the Initial
Class [B] Note Balance and the Initial Class [C] Certificate Balance.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Indenture or, if not defined
therein, in the Trust Agreement.
19
(b) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement; Article, Section, Schedule and
Exhibit references contained in this Agreement are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; "or" shall include "and/or"; and the term "including" shall mean
"including without limitation".
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(f) Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables. In consideration of the Issuer's
delivery to or upon the order of the Depositor of the Notes, the Certificates
and the Residual Interest (as defined in the Trust Agreement), the Depositor
does hereby transfer, set over and otherwise convey to the Issuer, without
recourse (subject to the obligations of the Depositor set forth herein), all
right, title and interest of the Depositor in and to:
(i) the Receivables and all moneys received thereon after the
Initial Cutoff Date in the case of Receivables originated on or before
the Initial Cutoff Date and all moneys received thereon after the date of
origination, in the case of Receivables originated after the Initial
Cutoff Date;
20
(ii) the security interests in the Financed Vehicles and any
accessions thereto granted by Obligors pursuant to the Receivables and
any other interest of the Depositor in such Financed Vehicles;
(iii) any Liquidation Proceeds and any other proceeds with respect
to the Receivables from claims on any physical damage, credit life or
disability insurance policies covering the Financed Vehicles or the
related Obligors, including any vendor's single interest or other
collateral protection insurance policy;
(iv) any property that shall have secured a Receivable and that
shall have been acquired by or on behalf of the Depositor, the Master
Servicer or the Trust;
(v) the proceeds from any Master Servicer's errors and omissions
protection policy, any fidelity bond and any blanket physical damage
policy, to the extent such proceeds relate to any Financed Vehicle;
(vi) all documents and other items contained in the Receivable
Files;
(vii) all of the Depositor's rights (but not its obligations) under
the Receivables Purchase Agreement;
(viii) all right, title and interest in all funds on deposit from
time to time in the Trust Accounts, the Certificate Interest Distribution
Account and the Certificate Principal Distribution Account and in all
investments therein and proceeds thereof (including all Investment
Earnings thereon); and
(ix) the proceeds of any and all of the foregoing (collectively,
with the assets listed in clauses (i) through (viii) above, the "Conveyed
Assets").
(b) It is the intention of the parties hereto that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables and other related property (for non-tax purposes) from the
Depositor to the Trust and the beneficial interest in and title to the
Receivables and the related property shall not be part of the Depositor's
estate in the event of the filing of a bankruptcy petition by or against the
Depositor under any bankruptcy law. In the event that, notwithstanding the
intent of the parties hereto, the transfer and assignment contemplated hereby
is held not to be a sale (for non-tax purposes), this Agreement shall
constitute a security agreement under applicable law, and, in such event, the
Depositor shall be deemed to have granted, and the Depositor hereby grants, to
the Issuer a security interest in all accounts, money, chattel paper,
securities, instruments, documents, deposit accounts, certificates of deposit,
letters of credit, advices of credit, banker's acceptances, uncertificated
securities, general intangibles, contract rights, goods and other property
consisting of, arising from or relating to such Conveyed Assets, for the
benefit of the Trust and its assignees as security for the Depositor's
obligations hereunder and the Depositor consents to the pledge of the
foregoing Conveyed Assets under the Indenture to the Indenture Trustee.
It is the intention of the Depositor that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables and
other related property from the Depositor to the Trust and the beneficial
interest in and title to the Receivables and the related
21
property shall not be part of the Depositor's estate in the event of the
filing of a bankruptcy petition by or against the Depositor under any
bankruptcy law. In the event that, notwithstanding the intent of the
Depositor, the transfer and assignment contemplated hereby is held not to be a
sale, this Agreement shall constitute a grant of a security interest in all
accounts, money, chattel paper, securities, instruments, documents, deposit
accounts, certificates of deposit, letters of credit, advices of credit,
banker's acceptances, uncertificated securities, general intangibles, contract
rights, goods and other property consisting of, arising from or relating to
such Conveyed Assets, for the benefit of the Securityholders as security for
the Depositor's obligations hereunder.
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of the Seller.
(a) The Seller has made each of the representations and warranties set
forth in Exhibit A hereto under the Receivables Purchase Agreement and has
consented to the assignment by the Depositor to the Issuer of the Depositor's
rights with respect thereto. Such representations and warranties speak as of
the execution and delivery of this Agreement and as of the Closing Date, but
shall survive the transfer and assignment of the Receivables to the Issuer and
the pledge of such Receivables to the Indenture Trustee. Pursuant to Section
2.01 of this Agreement, the Depositor has transferred and conveyed to the
Issuer, as part of the assets of the Issuer, its rights under the Receivables
Purchase Agreement, including the representations and warranties of the Seller
therein as set forth in Exhibit A, upon which representations and warranties
the Issuer relies in accepting the Receivables and delivering the Securities,
together with all rights of the Depositor with respect to any breach thereof,
including the right to require the Seller to acquire Receivables in accordance
with the Receivables Purchase Agreement. It is understood and agreed that the
representations and warranties referred to in this Section shall survive the
transfer and delivery of the Receivables to the Issuer or the Custodian.
(b) The Seller hereby agrees that the Issuer shall have the right to
enforce any and all rights under the Receivables Purchase Agreement assigned
to the Issuer herein, including the right to cause the Seller to repurchase
any Receivable with respect to which it is in breach of any of its
representations and warranties set forth in Exhibit A, directly against the
Seller as though the Issuer were a party to the Receivables Purchase
Agreement, and the Issuer shall not be obligated to exercise any such rights
indirectly through the Depositor.
Section 3.02. Representations and Warranties of the Depositor. The
Depositor makes the following representations and warranties, on which the
Issuer relies in accepting the Receivables and delivering the Securities. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, but shall survive the sale, transfer and
assignment of the Receivables by the Depositor to the Issuer and the pledge
thereof to the Indenture Trustee in accordance with the terms of the
Indenture:
22
(a) Title. The Depositor shall convey to the Issuer all right, title and
interest of the Depositor in and to the Receivables, including all right,
title and interest of the Depositor in and to the security interests in the
related Financed Vehicles.
(b) All Filings Made. The Depositor has caused all filings (including UCC
filings) to be made in New York and Delaware with respect to the sale of the
Receivables to the Issuer and the pledge contemplated in the Basic Agreements
to the Indenture Trustee.
(c) Liens. The Depositor has not taken any actions to create, incur or
suffer to exist any Lien on or restriction on transferability of any
Receivable except for the Lien of the Indenture and the restrictions on
transferability imposed by this Agreement.
(d) Perfection. The Depositor further makes all the representations,
warranties and covenants set forth in Exhibit E.
Section 3.03. Repurchase Upon Breach. Each of the Depositor, the Owner
Trustee, the Indenture Trustee, the Seller and the Master Servicer shall
inform the other parties to this Agreement promptly, in writing, upon the
discovery by it of any breach of the Seller's representations and warranties
made pursuant to Section 3.01 of this Agreement [or Section 3.02 of the
Receivables Purchase Agreement], without regard to any limitation set forth in
such representation or warranty concerning the knowledge of the Seller as to
the facts stated therein. Unless any such breach shall have been cured by the
last day of the first Collection Period commencing after the discovery or
notice thereof, the Seller shall be obligated and, if necessary, the Issuer
shall enforce the obligations of the Seller [under the Receivables Purchase
Agreement], to purchase as of such last day any Receivable materially and
adversely affected by any such breach. In consideration of the repurchase of
any such Receivable, the Seller shall remit the Purchase Amount to the
Collection Account and notify in writing the Indenture Trustee of such deposit
in the manner specified in Section 5.04. The sole remedy of the Issuer, the
Indenture Trustee, the Noteholders, or the Certificateholders with respect to
the unpaid balance plus accrued interest on any Receivable as to which a
breach of a representation or warranty has occurred pursuant to Section 3.01
of this Agreement [or Section 3.02 of the Receivables Purchase Agreement] or
the agreement contained in this Section shall be to require the Seller to
purchase such Receivable pursuant to this Section [or to repurchase such
Receivable pursuant to the Receivables Purchase Agreement].
Section 3.04. Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer
hereby revocably appoints the Master Servicer, and the Master Servicer hereby
accepts such appointment, to act for the benefit of the Issuer and the
Indenture Trustee as custodian of the Receivable Files, which are hereby
constructively delivered by the Issuer to the Indenture Trustee. The Custodian
may delegate or subcontract out its duties as Custodian; provided that no such
delegation or subcontract arrangement shall relieve the Custodian of its
duties and obligations hereunder. The Indenture Trustee and the Seller hereby
acknowledge and consent to the delegation by the initial Custodian of its
duties and obligations to [_________], as agent of the Issuer and the
Indenture Trustee.
Section 3.05. Duties of Master Servicer as Custodian.
23
(a) Safekeeping. The Master Servicer shall hold the Receivable Files as
custodian for the benefit of the Issuer and the Indenture Trustee, and shall
maintain such accurate and complete accounts, records and computer systems
pertaining to each Receivable File as shall enable the Issuer to comply with
this Agreement. In performing its duties as custodian, the Master Servicer
shall act with reasonable care, using that degree of skill and attention that
the Master Servicer exercises with respect to the receivable files relating to
all comparable automotive receivables that the Master Servicer services for
itself or others consistent with the procedures employed by institutions that
act as custodian for comparable automotive receivables. The Master 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 Issuer or the Indenture
Trustee to verify the accuracy of the Master Servicer's record keeping. The
Master Servicer shall promptly report to the Issuer and the Indenture Trustee
any failure on its part to hold the Receivable Files and maintain its
accounts, records and computer systems as herein provided and shall promptly
take appropriate action to remedy any such failure. Nothing herein shall be
deemed to require an initial review or any periodic review by the Issuer or
the Indenture Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Master Servicer shall
maintain each Receivable File at one of its offices or the office of the
Subcustodian specified in Schedule C to this Agreement or at such other office
as shall be specified to the Issuer and the Indenture Trustee by written
notice not later than 90 days after any change in location. The Master
Servicer shall make available to the Issuer and the Indenture Trustee or their
duly authorized representatives, attorneys or auditors a list of locations of
the Receivable Files and the related accounts, records and computer systems
maintained by the Master Servicer at such times during normal business hours
as the Issuer shall reasonably instruct, which does not unreasonably interfere
with the Master Servicer's normal operations or customer or employee
relations.
(c) Release of Documents. Upon instruction from the Indenture Trustee or,
if the Notes have been paid in full, from the Owner Trustee, the Master
Servicer shall release any Receivable File to the Indenture Trustee or the
Owner Trustee, as the case may be, or to the agent or designee of the
Indenture Trustee or the Owner Trustee, as the case may be, at such place or
places as the Indenture Trustee or the Owner Trustee, as applicable, may
designate, as soon as practicable without resulting in unreasonable
interference with the Master Servicer's normal operations or customer or
employee relations. Upon the release and delivery of any such document in
accordance with the instructions of the Indenture Trustee or the Owner
Trustee, as the case may be, the Master Servicer shall be released from any
further liability and responsibility under this Section 3.05 with respect to
such documents and any other provision of this Agreement if the fulfillment of
the Master Servicer's responsibilities is dependent upon possession of such
documents, unless and until such time as such documents shall be returned to
the Master Servicer. In no event shall the Master Servicer be responsible for
any loss occasioned by the Indenture Trustee's or the Owner Trustee's failure
to return any Receivable File or any portion thereof in a timely manner.
Section 3.06. Instructions; Authority to Act. The Master Servicer shall
be deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Trust Officer of
the Indenture Trustee or, if the Notes have been paid in full, of the Owner
Trustee.
24
Section 3.07. Custodian's Indemnification. The Master Servicer, as
custodian, shall indemnify the Trust, the Owner Trustee and the Indenture
Trustee and each of their officers, directors, 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 by
or asserted against the Trust, the Owner Trustee or the Indenture Trustee or
any of their officers, directors, employees or agents as the result of any
improper act or omission in any way relating to the maintenance and custody by
the Master Servicer as custodian of the Receivable Files; provided, however,
that the Master Servicer shall not be liable to the Trust, the Owner Trustee,
the Indenture Trustee or any such officer, director, employee or agent of the
Trust, the Owner Trustee or the Indenture Trustee for any portion of any such
amount resulting from the willful misfeasance, bad faith or negligence of the
Owner Trustee or the Indenture Trustee, as the case may be, or any such
officer, director, employee or agent of the Trust, the Owner Trustee or the
Indenture Trustee, as the case may be.
Indemnification under this Section shall survive the resignation or
removal of the Master Servicer or the termination of this Agreement with
respect to acts or omissions of such Master Servicer preceding such
resignation or removal and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Master Servicer shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such payments are made thereafter collects any of such amounts from
others, such Person shall promptly repay such amounts to the Master Servicer,
without interest.
Section 3.08. Effective Period and Termination. The Master Servicer's
appointment as custodian shall become effective as of the Initial Cutoff Date
and shall continue in full force and effect unless and until terminated
pursuant to this Section 3.08. If the Master Servicer or any successor Master
Servicer shall resign as Master Servicer in accordance with the provisions of
this Agreement or if all of the rights and obligations of the Master Servicer
or any successor Master Servicer shall have been terminated under Section
8.02, the appointment of such Master Servicer as custodian may be terminated
by the Issuer or by the Holders of Notes evidencing not less than 25% of the
Outstanding Amount of the Notes, by the Owner Trustee or by Holders (other
than the Seller or an Affiliate thereof) of Certificates evidencing not less
than 25% of the aggregate Outstanding Amount of the Certificates, in the same
manner as the Indenture Trustee or such Securityholders may terminate the
rights and obligations of the Master Servicer under Section 8.02. The
Indenture Trustee or, with the consent of the Indenture Trustee, the Owner
Trustee may terminate the Master Servicer's appointment as custodian, with
cause, at any time upon written notification to the Master Servicer and
without cause, only by written notification to the Master Servicer pursuant to
Section 8.02. As soon as practicable after any termination of such appointment
(but in no event more than ten (10) Business Days after any such termination
of appointment), the Master Servicer shall deliver the Receivable Files to the
Indenture Trustee or the Indenture Trustee's agent at such place or places as
the Indenture Trustee may reasonably designate. Notwithstanding the
termination of Regions Bank as custodian, the Indenture Trustee and the Owner
Trustee agree that, upon any such termination and for so long as Regions Bank
remains the Master Servicer hereunder, the Indenture Trustee or the Owner
Trustee, as the case may be, shall provide, or cause its agent to provide,
access to the Receivable Files to the Master Servicer for the purpose of
enabling the Master Servicer to perform its obligations under this Agreement
with respect to the servicing of the Receivables.
25
Section 3.09. Transfer and Delivery of Receivable Files. Following the
occurrence of a Non-Master Servicer Termination Event, the Owner Trustee, the
Indenture Trustee, Noteholders evidencing not less than 25% of the Outstanding
Amount of the Controlling Class or, if no Notes are outstanding,
Certificateholders of Certificates evidencing not less than 25% of the
Outstanding Amount of the Certificates may instruct the Master Servicer and
the Custodian to transfer and deliver and the Master Servicer and the
Custodian shall transfer and deliver, the Receivable Files to the Indenture
Trustee or a successor Custodian. The Master Servicer and the predecessor
Custodian shall pay all costs and expenses of any such transfer of the
Receivable Files.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Duties of Master Servicer. The Master Servicer, for the
benefit of the Issuer and the Indenture Trustee, shall manage, service,
administer and make collections on the Receivables and perform the other
actions required by the Master Servicer under this Agreement. The Master
Servicer may engage agents and subservicers, including the Subservicer, to
fulfill its duties hereunder; provided, that such subservicer does not
primarily service the Contracts from inside the State of Florida. All amounts
payable to the subservicer shall be paid by the master servicer and shall not
be obligations of the Issuer or paid from the Trust property. No such
delegation or engagement of agents, subservicers or subcontractors by the
Master Servicer shall relieve the Master Servicer of its responsibilities with
respect to any of its duties hereunder. The Master Servicer shall service the
Receivables in accordance with its customary and usual procedures and
consistent with the procedures employed by institutions that service [retail
installment sales contracts, retail installment loans, purchase money notes or
other notes]. The Master Servicer's duties shall include the collection and
posting of all payments, responding to inquiries of Obligors, investigating
delinquencies, sending payment coupons to Obligors, reporting any required tax
information to Obligors, accounting for collections, furnishing monthly and
annual statements to the Owner Trustee and the Indenture Trustee with respect
to distributions and performing the other duties specified herein. The Master
Servicer also shall administer and enforce all rights of the holder of the
Receivables under the Receivables and the Dealer Agreements and assignment
forms. To the extent consistent with the standards, policies and procedures
otherwise required hereby, the Master Servicer shall follow its customary
standards, policies and procedures and shall have full power and authority,
acting alone, to do any and all things in connection with the managing,
servicing, administration and collection of the Receivables that it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Master Servicer is hereby authorized and empowered to execute and deliver, on
behalf of itself, the Issuer, the Owner Trustee, the Indenture Trustee, the
Certificateholders and the Noteholders, or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments with respect to the
Receivables and with respect to the Financed Vehicles; provided, however,
that, notwithstanding the foregoing, the Master Servicer shall not, except
pursuant to an order from a court of competent jurisdiction, execute documents
that would release an Obligor from payment of any unpaid amount due under any
Receivable, reduce the related APR or waive the right to collect
26
the unpaid balance of any Receivable from an Obligor. The Master Servicer is
hereby authorized to commence, in its own name or in the name of the Issuer,
the Indenture Trustee, the Owner Trustee, the Certificateholders or the
Noteholders, a legal proceeding to enforce a Receivable pursuant to Section
4.03 or to commence or participate in any other legal proceeding (including a
bankruptcy proceeding) relating to or involving a Receivable, an Obligor or a
Financed Vehicle. If the Master Servicer commences or participates in any such
legal proceeding in its own name, the Indenture Trustee or the Issuer shall
thereupon be deemed to have automatically assigned the applicable Receivable
to the Master Servicer solely for purposes of commencing or participating in
such proceeding as a party or claimant, and the Master Servicer is authorized
and empowered by the Indenture Trustee or the Issuer to execute and deliver in
the Indenture Trustee's or the Issuer's name any notices, demands, claims,
complaints, responses, affidavits or other documents or instruments in
connection with any such proceeding. If in any enforcement suit or legal
proceeding it shall be held that the Master 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 such Receivable, the Owner Trustee shall, at the
Master Servicer's expense and direction, take steps to enforce such
Receivable, including bringing suit in its name or the name of the Issuer, the
Indenture Trustee, the Certificateholders or the Noteholders. The Owner
Trustee and the Indenture Trustee shall upon the written request of the Master
Servicer furnish the Master Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the Master Servicer to
carry out its servicing and administrative duties hereunder.
The Master Servicer may engage agents and subservicers, including the
Subservicer, to fulfill its duties hereunder; provided, that such Subservicer
does not primarily service the Receivables from inside the State of Florida.
The Master Servicer has appointed [_________] to act as Subservicer pursuant
to the [_________] Sub-Servicing Agreement and the Seller and the Indenture
Trustee hereby acknowledge and consent to such appointment. All amounts
payable to any Subservicer shall be paid by the Master Servicer and shall not
be obligations of the Indenture Trustee, the Owner Trustee or the Issuer or
paid from the Trust Estate and no appointment of a Subservicer shall result in
any additional expense to the Indenture Trustee, the Owner Trustee, the
Noteholders, the Certificateholders or the Issuer. No such delegation or
engagement of agents, Subservicers or subcontractors by the Master Servicer
shall relieve the Master Servicer of its responsibilities with respect to any
of its duties hereunder. References in this Agreement to actions taken or to
be taken by the Master Servicer include actions taken or to be taken by a
Subservicer on behalf of the Master Servicer. For purposes of this Agreement,
the Master Servicer shall each be deemed to have received any payment when a
subservicer retained by it receives such payment.
References to the customary servicing standards (and procedures),
customary and usual procedures, customary standards and customary collections
policy of the Master Servicer and similar expressions used in this Agreement
shall be deemed to refer to the standards, procedures and policies of the
Master Servicer or such standards, procedures and policies as the Master
Servicer requires that its agents, subservicers or subcontractors follow.
Neither the Master Servicer nor any Subservicer shall perform any
non-ministerial duties in the State of Florida without first providing an
Opinion of Counsel in form and substance acceptable to the Indenture Trustee
to the effect that the performance of such non-ministerial duties will not
adversely affect the tax treatment of the Issuer.
27
Section 4.02. Collection of Receivable Payments; Modifications of
Receivables.
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Master Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Receivables as
and when the same shall become due, and shall follow such collection
procedures as it follows with respect to all comparable motor vehicle
receivables that it services for itself and otherwise act with respect to the
Receivables in such a manner as will, in the reasonable judgment of the Master
Servicer, maximize the amount to be received by the Trust with respect
thereto. The Master Servicer is authorized in its discretion to waive any
prepayment charge, late payment charge or any other similar fees that may be
collected in the ordinary course of servicing any Receivable.
(b) The Master Servicer may grant payment extensions on the Receivables
only to the extent permissible in its extension policy attached hereto as
Exhibit D; provided, however, that no such extension shall extend the final
payment date on any Receivable beyond the last day of the Collection Period
ending six months prior to the Class [C] Certificate Final Scheduled Payment
Date.
(c) Upon any extension not in accordance with this Section, the Master
Servicer shall be required to purchase the related Receivable in accordance
with Section 4.07.
Section 4.03. Realization upon Receivables. Consistent with the
standards, policies and procedures required by this Agreement, the Master
Servicer shall use its best efforts to repossess or otherwise convert the
ownership of and liquidate any Financed Vehicle securing a Receivable with
respect to which the Master Servicer shall have determined that eventual
payment in full is unlikely. The Master Servicer shall begin such repossession
and conversion procedures as soon as practicable after default on such
Receivable in accordance with its customary procedures; provided, however,
that the Master Servicer may elect not to repossess a Financed Vehicle within
such time period if in its good faith judgment it determines that the proceeds
ultimately recoverable with respect to such Receivable would be increased by
forbearance. In repossessing or otherwise converting the ownership of a
Financed Vehicle and liquidating a Receivable, the Master Servicer is
authorized to follow such customary practices and procedures as it shall deem
necessary or advisable, consistent with the standard of care required by
Section 4.01, which practices and procedures may include the sale of the
related Financed Vehicle at public or private sale, the submission of claims
under an insurance policy and other actions by the Master Servicer in order to
realize upon a Receivable; provided, however, that, in any case in which the
Financed Vehicle shall have suffered damage, the Master Servicer shall not
expend funds in connection with any repair or towards the repossession of such
Financed Vehicle unless it shall determine in its reasonable judgment that
such repair or repossession shall increase the related Liquidation Proceeds by
an amount materially greater than the expense for such repair or repossession.
The Master Servicer shall be entitled to recover all expenses incurred by it
that are reasonably allocated to repossessing and liquidating a Financed
Vehicle into cash proceeds, but only out of the cash proceeds of the sale of
such Financed Vehicle or any deficiency obtained from the related Obligor.
Section 4.04. Physical Damage Insurance. The Master Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical
28
loss damage insurance covering the related Financed Vehicle as of the
execution of the related Receivable.
Section 4.05. Maintenance of Security Interests in Financed Vehicles.
(a) The Master Servicer shall, in accordance with its customary servicing
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle;
provided, however, that except as provided in Section 4.05(b), the Master
Servicer shall not be required to perfect or reperfect the security interest
in the Financed Vehicles in the name of the Issuer or the Indenture Trustee.
The Master Servicer is hereby authorized to take such steps as are necessary
to re-perfect such security interest on behalf of the Issuer and the Indenture
Trustee in the event of the relocation of a Financed Vehicle, or for any other
reason. In the event that the assignment of a Receivable to the Issuer is
insufficient, without a notation on the related Financed Vehicle's certificate
of title, or without fulfilling any additional administrative requirements
under the laws of the State in which such Financed Vehicle is located, to
perfect a security interest in the related Financed Vehicle in favor of the
Issuer, the Master Servicer hereby agrees that the designation of Regions Bank
as the secured party on the certificate of title is in its capacity as agent
of the Issuer.
(b) The Depositor, the Owner Trustee, the Indenture Trustee and the
Master Servicer hereby agree that, upon the occurrence of a Non-Master
Servicer Termination Event, the Controlling Party may take or cause to be
taken such actions as may, in the opinion of counsel to the Controlling Party,
be necessary to perfect or re-perfect the security interests in the Financed
Vehicles in the name of the Issuer, including by amending the title documents
of the Financed Vehicles. The Master Servicer hereby agrees to pay all
expenses related to such perfection or reperfection and to take all action
necessary therefor. If such expenses are not paid within 15 days after
delivery of any invoice therefor, such expenses shall be paid pursuant to
Section 5.06(b)(ix).
Section 4.06. Covenants of Master Servicer. By its execution and delivery
of this Agreement, the Master Servicer hereby covenants as follows (upon which
covenants the Issuer, the Indenture Trustee and the Owner Trustee rely in
accepting the Receivables and delivering the applicable Securities):
(a) Liens in Force. No Financed Vehicle securing a Receivable shall be
released in whole or in part from the security interest granted by such
Receivable, except upon payment in full of such Receivable or as otherwise
contemplated herein;
(b) No Impairment. The Master Servicer shall do nothing to impair the
rights of the Trust in the property of the Trust;
(c) No Amendments. The Master Servicer shall not extend or otherwise
amend the terms of any Receivable, except in accordance with Section 4.02; and
(d) Restrictions on Liens. The Master Servicer shall not (A) create,
incur or suffer to exist, or agree to create, incur or suffer to exist, or
consent to or permit in the future (upon the occurrence of a contingency or
otherwise) the creation, incurrence or existence of any Lien on or restriction
on transferability of any Receivable except for the Lien of the Indenture and
the
29
restrictions on transferability imposed by this Agreement or (B) other than as
contemplated herein, sign or file any UCC financing statements in any
jurisdiction that names Regions Bank or the Depositor as a debtor, and any
Person other than the Depositor, the Indenture Trustee or the Issuer as a
secured party, or sign any security agreement authorizing any secured party
thereunder to file any such financing statement, in each case with respect to
the Receivables or the related property.
Section 4.07. Purchase of Receivables Upon Breach. Upon discovery by any
of the Master Servicer, the Seller, the Depositor, the Owner Trustee or the
Indenture Trustee of a breach of any of the covenants set forth in Sections
4.02(b), 4.04, 4.05(a) or 4.06, the party discovering such breach shall give
prompt written notice to the other; provided, however, that the failure to
give any such notice shall not affect any obligation of the Master Servicer
under this Section 4.07. On or before the last day of the first Collection
Period commencing after its discovery or receipt of notice of the breach of
any covenant set forth in Sections 4.02(b), 4.04, 4.05(a) or 4.06 that
materially and adversely affects the interests of the Issuer, the Indenture
Trustee, the Owner Trustee, the Certificateholders or the Noteholders in any
Receivable, the Master Servicer shall, unless such breach shall have been
cured in all material respects by such date, purchase from the Issuer the
Receivable affected by such breach. In consideration of the purchase of any
such Receivable, the Master Servicer shall remit the related Purchase Amount
into the Collection Account, with written notice to the Indenture Trustee of
such deposit, in the manner specified in Section 5.04. Subject to Section
7.02, it is understood and agreed that the obligation of the Master Servicer
to purchase any Receivable with respect to which such a breach has occurred
and is continuing shall, if such obligation is fulfilled, constitute the sole
remedy against the Master Servicer for such breach available to the Issuer,
the Owner Trustee, the Indenture Trustee, the Certificateholders or the
Noteholders.
Section 4.08. Servicing Fee. The Servicing Fee shall be payable to the
Master Servicer on each Payment Date. That part of the Servicing Fee based on
the Servicing Fee Rate shall be calculated on the basis of [a 360-day year
comprised of twelve 30-day months]. The Master Servicer shall be required to
pay all expenses incurred by it in connection with its activities under this
Agreement (including taxes imposed on the Master Servicer and expenses
incurred in connection with distributions and reports made by the Master
Servicer to the Owner Trustee and the Indenture Trustee).
Section 4.09. Master Servicer's Certificate. Not later than [10:00 a.m.]
(New York City time) on each Determination Date, the Master Servicer shall
deliver to the Owner Trustee, the Indenture Trustee and the Depositor, with a
copy to each Rating Agency, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Inc. and
[_________________________], a Master Servicer's Certificate containing all
information necessary to make the distributions to be made on the related
Payment Date pursuant to Section 5.06 for the related Collection Period and
any other information the Indenture Trustee may reasonably request. Such
Master Servicer's Certificate shall be certified by a Responsible Officer of
the Master Servicer that the information provided is complete and no defaults
have occurred. With respect to each Collection Period, Receivables to be
purchased by the Master Servicer or to be repurchased by the Seller and each
Receivable that became a Liquidated Receivable, in each case, during such
Collection Period shall be identified by the Master Servicer by account number
with respect to such Receivable (as specified in the applicable Schedule of
Receivables).
30
Section 4.10. Annual Statement as to Compliance; Notice of Master
Servicer Termination Event; ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
(a) The Master Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency, within 120 days after the end of the Master
Servicer's fiscal year, an Officer's Certificate signed by a Responsible
Officer of the Master Servicer, stating that (i) a review of the activities of
the Master Servicer during the preceding 12-month period (or such shorter
period in the case of the first such Officer's Certificate) and of the
performance of its obligations under this Agreement has been made under such
officer's supervision and (ii) to such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such period or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
(b) The Master Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency, promptly after having obtained knowledge
thereof, but in no event later than two Business Days thereafter, written
notice in an Officer's Certificate of any event that is, or with the giving of
notice or lapse of time or both would become, a Master Servicer Termination
Event under Section 8.01.
(c) The Master Servicer shall provide on a timely basis for filing with
the applicable reports of the Issuer under the Securities Exchange Act of
1934, as amended, the certifications required by Section 302 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 to be included in those reports.
Section 4.11. Annual Independent Accountants' Report. The Master Servicer
shall cause a firm of independent certified public accountants, which may also
render other services to the Master Servicer or its Affiliates, to deliver to
the Owner Trustee, the Indenture Trustee and each Rating Agency, within 120
days after the end of each fiscal year, commencing with the fiscal year ending
December 31, 2000, a report addressed to the Board of Directors of the Master
Servicer, the Owner Trustee and the Indenture Trustee, to the effect that such
firm has audited the books and records of the Master Servicer and issued its
report thereon and that (i) such audit was made in accordance with generally
accepted auditing standards and accordingly included such tests of the
accounting records and such other auditing procedures as such firm considered
necessary in the circumstances; (ii) the firm is independent of the Depositor
and the Master Servicer within the meaning of the Code of Professional Ethics
of the American Institute of Certified Public Accountants; (iii) a review in
accordance with agreed-upon procedures was made of the Master Servicer's
Certificates relating to such fiscal year, including the delinquency, default
and loss statistics required to be specified therein and, except as disclosed
in the accountants' report, no exceptions or errors in the Master Servicer's
Certificates were found; and (iv) a review in accordance with agreed-upon
procedures was made of the Master Servicer's compliance with its servicing
obligations in this Agreement, including without limitation the obligations of
the Master Servicer set forth in Section 4.02(b) hereof, and, except as
disclosed in the accountants' report, no exceptions to such compliance were
found. In rendering its report such firm may rely, as to matters relating to
the servicing of the Receivables by any Subservicers, upon comparable reports
of firms of independent certified public accountants rendered on the basis of
examinations conducted in accordance with the same standards (rendered within
one year of such report) with respect to those Subservicers.
31
Section 4.12. Access to Certain Documentation and Information Regarding
Receivables. The Master Servicer shall provide to representatives of the Owner
Trustee, the Indenture Trustee, the Certificateholders and the Noteholders
reasonable access to the documentation regarding the Receivables and the
related Trust property. Access shall be afforded without charge, but only upon
reasonable request, which does not unreasonably interfere with the Master
Servicer's normal business operations or employee or customer relations, and
during the normal business hours at the offices of the Master Servicer.
Nothing in this Section shall affect the obligation of the Master Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors and the failure of the Master Servicer to provide access to
information as a result of such obligation shall not constitute a breach of
this Section.
Section 4.13. Term of Master Servicer. The Master Servicer hereby
covenants and agrees to act as Master Servicer under, and for the term of,
this Agreement.
Section 4.14. Access to Information Regarding Trust and Basic Documents.
The Master Servicer shall furnish to the Owner Trustee from time to time such
information regarding the Trust or the Basic Documents as the Owner Trustee
shall reasonably request. Upon request, the Indenture Trustee shall furnish to
the Owner Trustee annually a copy of the Note Register; provided, however, the
Indenture Trustee shall not be obligated to furnish a copy of the Note
Register more than once each calendar year. The Master Servicer shall furnish
to the Owner Trustee copies of all documents and reports required to be
provided by the Master Servicer pursuant to this Article IV of the Sale and
Servicing Agreement.
ARTICLE V
DISTRIBUTIONS; STATEMENTS TO SECURITYHOLDERS
Section 5.01. Establishment of Accounts.
(a) The Master Servicer, for the benefit of the Noteholders and the
Certificateholders, shall establish and maintain in the name of the Indenture
Trustee an Eligible Deposit Account (the "Collection Account"), bearing a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Noteholders and the Certificateholders.
(b) The Issuer, for the benefit of the Noteholders, shall cause the
Indenture Trustee to establish with and maintain in the name of the Indenture
Trustee an Eligible Deposit Account (the "Note Interest Distribution
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders.
(c) The Issuer, for the benefit of the Noteholders and the
Certificateholders, shall cause the Indenture Trustee to establish with and
maintain in the name of the Indenture Trustee an Eligible Deposit Account (the
"Principal Distribution Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Noteholders
and the Certificateholders.
32
(d) The Issuer, for the benefit of the Noteholders and
Certificateholders, shall cause the Indenture Trustee to establish with and
maintain, in the name of the Indenture Trustee, an Eligible Deposit Account
(the "Reserve Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Noteholders and the
Certificateholders.
(e) Funds on deposit in the Collection Account and the Reserve Account
shall be invested by the Indenture Trustee in Eligible Investments selected in
writing by the Master Servicer; provided, however, that if the Master Servicer
fails to select any Eligible Investment, the Indenture Trustee shall invest
such funds in an Eligible Investment described in clause (d) of the definition
of "Eligible Investment" herein. All such Eligible Investments shall be held
by the Indenture Trustee for the benefit of the Noteholders and/or the
Certificateholders, as applicable; provided, that such amount shall be
calculated on the Determination Date and on each Payment Date all interest and
other investment income (net of Net Investment Losses) on funds on deposit in
the Collection Account for the related Collection Period shall be paid to the
Master Servicer as part of the servicing compensation or to the Indenture
Trustee as compensation. Other than as permitted in writing by the Rating
Agencies, funds on deposit in the Trust Accounts shall be invested in Eligible
Investments that will mature not later than the Business Day immediately
preceding the next Payment Date. Funds deposited in a Trust Account on a day
that immediately precedes a Payment Date upon the maturity of any Eligible
Investments are not required to be invested overnight.
(f) In the event that there are Net Investment Losses in Eligible
Investments chosen by the Master Servicer, the Master Servicer shall deposit
into the Collection Account, no later than one (1) Business Day prior to the
Payment Date, the amount of the Net Investment Losses. The Indenture Trustee
shall not be held liable in any way for any Net Investment Losses, except for
losses attributable to the Indenture Trustee's failure to make payments on
such Eligible Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as Indenture Trustee, in accordance with
their terms.
(g) (i) The Indenture Trustee shall possess all right, title and interest
in all funds and investment property on deposit from time to time in or
credited to the Trust Accounts and in all proceeds thereof (including all
income thereon) and all such funds, investment property, proceeds and income
shall be part of the Trust Estate, except as otherwise set forth herein. The
Trust Accounts shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Noteholders and the Certificateholders, as
applicable. If, at any time, any Trust Account ceases to be an Eligible
Deposit Account, the Indenture Trustee (or the Master Servicer on its behalf)
shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Trust Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments from the account that is no longer an Eligible Deposit
Account to the Trust Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts, subject to the last
sentence of Section 5.01(g)(i); and each such Eligible Deposit Account shall
be subject to the exclusive custody and control of the
33
Indenture Trustee, and the Indenture Trustee shall have sole signature
authority with respect thereto;
(B) any Trust Account Property that constitutes Physical Property
shall be delivered to the Indenture Trustee in accordance with paragraph (a)
of the definition of "Delivery" and shall be held, pending maturity or
disposition, solely by the Indenture Trustee or a securities intermediary (as
such term is defined in Section 8-102 of the UCC) acting solely for the
Indenture Trustee;
(C) any Trust Account Property that is a book-entry security held
through the Federal Reserve System pursuant to federal book-entry regulations
shall be delivered in accordance with paragraph (b) of the definition of
"Delivery" and shall be maintained by the Indenture Trustee, pending maturity
or disposition, through continued book-entry registration of such Trust
Account Property as described in such paragraph;
(D) any Trust Account Property that is an "uncertificated security"
under Article 8 of the UCC and that is not governed by clause (C) above shall
be delivered to the Indenture Trustee in accordance with paragraph (c) of the
definition of "Delivery" and shall be maintained by the Indenture Trustee,
pending maturity or disposition, through continued registration of the
Indenture Trustee's (or its nominee's) ownership of such security; and
(E) any Trust Account Property that is a security entitlement shall
be delivered in accordance with paragraph (d) of the definition herein of
"Delivery" and shall be held pending maturity or disposition by the Indenture
Trustee or a securities intermediary acting solely for the Indenture Trustee.
(iii) The Master Servicer shall have the power, revocable by the
Indenture Trustee or by the Owner Trustee with the consent of the
Indenture Trustee, following a Master Servicer Termination Event to
instruct the Indenture Trustee to make withdrawals and payments from the
Trust Accounts, the Certificate Interest Distribution Account and the
Certificate Principal Distribution Account for the purpose of withdrawing
any amounts deposited in error into such accounts.*
Section 5.02. Collections. The Master Servicer shall remit to the
Collection Account all payments by or on behalf of the Obligors with respect
to the Receivables (other than Purchased Receivables), all Liquidation
Proceeds and any subsequent Recoveries on the Business Day prior to the
Payment Date for so long as (i) Regions Bank is the Master Servicer, (ii)
Regions Bank has the Minimum Required Rating, and (iii) no Master Servicer
Termination Event shall have occurred and be continuing. If (i) Regions Bank
is no longer the Master Servicer, (ii) Regions Bank no longer has the Minimum
Required Rating, or (iii) a Master Servicer Termination Event shall have
occurred and be continuing, the Master Servicer shall remit to the Collection
Account all payments by or on behalf of the Obligors with respect to the
Receivables (other than Purchased Receivables), all Liquidation Proceeds and
any subsequent Recoveries within two Business Days of receipt thereof.
Notwithstanding anything herein to the contrary, so long as Regions Bank is
the Master Servicer, Regions Bank may withhold from deposit into the
Collection Account any amounts indicated on the related Master Servicer's
Certificate as being due and payable to the Seller. For purposes of this
Article V, the phrase "payments by or on
34
behalf of Obligors" shall mean payments made with respect to the Receivables
by Persons other than the Master Servicer or the Seller.
Section 5.03. Application of Collections.
(a) All payments received from or on behalf of an Obligor during each
Collection Period with respect to each Receivable (other than a Purchased
Receivable), shall be applied to interest, fees and principal in accordance
with the Simple Interest Method and the Master Servicer's customary
procedures. Generally, subject to the foregoing sentence, the Master Servicer
applies obligor payments, first to interest, second to late charges and
certain other charges and third to unpaid principal.
Section 5.04. Purchase Amounts. For so long as (i) Regions Bank is the
Master Servicer, (ii) Regions Bank has the Minimum Required Rating, and (iii)
no Master Servicer Termination Event shall have occurred and be continuing,
the Master Servicer and the Seller shall be entitled pursuant to the first
sentence of Section 5.02 to deposit or cause to be deposited the aggregate
Purchase Amounts in the Collection Account on a monthly basis rather than
within two Business Days of receipt. If, however, (i) Regions Bank no longer
is the Master Servicer, (ii) Regions Bank no longer has the Minimum Required
Rating, or (iii) a Master Servicer Termination Event shall have occurred and
be continuing, the Master Servicer or the Seller shall deposit or cause to be
deposited in the Collection Account the aggregate Purchase Amount with respect
to Purchased Receivables within two Business Days of receipt and the Master
Servicer shall deposit therein all amounts to be paid under Section 4.07 and
Section 9.01 within two Business Days of receipt.
Section 5.05. Reserved.
Section 5.06. Distributions.
(a) On each Determination Date, the Master Servicer shall calculate all
amounts required to be deposited pursuant to this Section and deliver a Master
Servicer's Certificate pursuant to Section 4.09.
(b) On each Payment Date, the Master Servicer shall instruct the
Indenture Trustee in writing (based on the information contained in the Master
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 4.09) to make the following deposits and distributions from amounts on
deposit in the Collection Account, to the extent of the Total Distribution
Amount for such Payment Date, including all amounts transferred to the
Collection Account from the Reserve Account pursuant to Section 5.07(b), to
make required payments and distributions on such date pursuant to clauses (i)
through (x) below, in the following order and priority:
(i) to the Master Servicer, the Servicing Fee (and any accrued and
unpaid Servicing Fees from prior Collection Periods);
(ii) to the Note Interest Distribution Account for distribution to
the Class [A] Noteholders, from available funds remaining after the
application of clause (i), the Class [A] Noteholders' Interest
Distributable Amount;
35
(iii) to the Principal Distribution Account, for distribution
pursuant to Section 5.06(c), from available funds remaining after the
application of clauses (i) and (ii), the First Allocation of Principal,
if any;
(iv) to the Note Interest Distribution Account for distribution to
the Class [B] Noteholders, from available funds remaining after the
application of clauses (i) through (iii), the Class [B] Noteholders'
Interest Distributable Amount;
(v) to the Principal Distribution Account, for distribution pursuant
to Section 5.06(c), from available funds remaining after the application
of clauses (i) through (iv), the Second Allocation of Principal, if any,
reduced by any First Allocation of Principal paid pursuant to clause
(iii) above;
(vi) to the Certificate Interest Distribution Account for
distribution to the Class [C] Certificateholders, from available funds
remaining after the application of clauses (i) through (v), the
Certificateholders' Interest Distributable Amount;
(vii) to the Principal Distribution Account, for distribution
pursuant to Section 5.06(c), from available funds remaining after the
application of clauses (i) through (vi), the Regular Principal
Allocation, reduced by any First Allocation of Principal paid pursuant to
clause (iii) above and any Second Allocation of Principal paid pursuant
to clause (v) above;
(viii) to the Reserve Account, from available funds remaining after
the application of clauses (i) through (vii), any deficiency in the
Reserve Account Required Amount;
(ix) to the Indenture Trustee and the Owner Trustee, from available
funds remaining after the application of clauses (i) through (viii), any
accrued and unpaid fees, expenses and indemnification expenses owed
thereto under any of the Basic Documents to the extent not otherwise paid
(including legal fees and expenses) and to the Securities Intermediary,
any accrued and unpaid indemnification expenses owed to it; and
(x) the remainder, if any, of available funds to Regions Bank.
Notwithstanding that the Notes have been paid in full, the Indenture
Trustee shall continue to maintain the Collection Account hereunder until the
Class [C] Certificate Balance is reduced to zero.
(c) On each Payment Date, the Master Servicer shall instruct the
Indenture Trustee in writing (based on the information contained in the Master
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 4.09) to withdraw the funds on deposit in the Principal Distribution
Account with respect to the Collection Period preceding such Payment Date and
make payments and distributions on such date pursuant to clauses (i) through
(vi) below, in the following order and priority:
(i) to the Class [A-1] Noteholders on account of principal until the
Outstanding Amount of the Class [A-1] Notes is reduced to zero;
36
(ii) to the Class [A-2] Noteholders on account of principal until
the Outstanding Amount of the Class [A-2] Notes is reduced to zero;
(iii) to the Class [A-3] Noteholders on account of principal until
the Outstanding Amount of the Class [A-3] Notes is reduced to zero;
(iv) to the Class [A-4] Noteholders on account of principal until
the Outstanding Amount of the Class [A-4] Notes is reduced to zero;
(v) to the Class [B] Noteholders on account of principal until the
Outstanding Amount of the Class [B] Notes is reduced to zero; and
(vi) to the Certificate Principal Distribution Account in reduction
of the Class [C] Certificate Balance, until the Class [C] Certificate
Balance has been reduced to zero.
Notwithstanding the foregoing, subject to the provisions of Section
5.04(b) of the Indenture, (A) following the occurrence and during the
continuation of an Event of Default specified in Section 5.01(i), 5.01(ii),
5.01(iv) or 5.01(v) of the Indenture which has resulted in an acceleration of
the Notes (or following the occurrence of any such event after an Event of
Default specified in Section 5.01(iii) of the Indenture has occurred and the
Notes have been accelerated), the Master Servicer shall instruct the Indenture
Trustee to transfer the funds on deposit in the Collection Account remaining
after the application of clauses 5.06(b) (i) and (ii) above to the Principal
Distribution Account to the extent necessary to reduce the principal amount of
all the Class [A] Notes to zero, (B) following the occurrence and during the
continuation of an Event of Default specified in Section 5.01(iii) of the
Indenture, which has resulted in an acceleration of the Notes, the Master
Servicer shall instruct the Indenture Trustee to transfer the funds on deposit
in the Collection Account remaining after the application of clauses 5.06(b)
(i), (ii), (iii) and (iv) above to the Principal Distribution Account to the
extent necessary to reduce the principal amount of all the Notes to zero, and
(C) in the case of an event described in clause (A) or (B), the
Certificateholders will not receive any distributions of principal or interest
until the principal amount and accrued interest on all the Notes has been paid
in full.
Section 5.07. Reserve Account.
(a) On or prior to the Closing Date the Issuer shall cause to have
deposited an amount equal to the Reserve Account Initial Deposit into the
Reserve Account from the net proceeds of the sale of the Securities. The
Reserve Account shall be an asset of the Issuer.
(b) On each Payment Date, the Master Servicer shall instruct the
Indenture Trustee in writing (based on the information contained in the Master
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 4.09) to withdraw the Reserve Account Withdrawal Amount, if any, and
the Reserve Account Release Amount, if any, from the Reserve Account and
deposit such Reserve Account Withdrawal Amount and such Reserve Account
Release Amount into the Collection Account for distribution in the order of
priority set forth in Section 5.06(b) no later than [12:00 noon], New York
City time, on the Business Day prior to the related Payment Date.
37
(c) In the event that, on any Payment Date, the amount on deposit in the
Reserve Account shall be less than the Reserve Account Required Amount, the
Total Distribution Amount remaining after the payment of the amounts set forth
in Section 5.06(b)(i) through (vii), up to an amount equal to such shortfall,
shall be deposited by the Indenture Trustee to the Reserve Account on such
Payment Date.
(d) Subject to Section 9.01, amounts will continue to be applied pursuant
to Section 5.06 following payment in full of all of the Outstanding Amount of
the Notes and of the Class [C] Certificate Balance until the Pool Balance is
reduced to zero. Following the payment in full of the aggregate Outstanding
Amount of the Notes and the Class [C] Certificate Balance and of all other
amounts owing or to be distributed hereunder or under the Indenture or the
Trust Agreement to Noteholders and the termination of the Trust, any amount
then allocated to the Reserve Account shall be paid to Regions Bank.
Section 5.08. Statements to Securityholders. On each Determination Date,
the Master Servicer shall provide to the Indenture Trustee (with a copy to
each Rating Agency, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Inc. and [_________] and each
Paying Agent (if any)) for the Indenture Trustee to forward to each Noteholder
of record as of the most recent Record Date and to the Owner Trustee (with a
copy to each Paying Agent (if any)) for the Owner Trustee to forward to each
Certificateholder of record as of the most recent Record Date a statement
substantially in the form of Exhibit B setting forth at least the following
information as to the Securities to the extent applicable:
(a) the amount of collections received with respect to the Receivables
during the related Collection Period and allocable to principal allocable to
each Class of Notes and Certificates on such Payment Date;
(b) the amount of collections received with respect to the Receivables
during the related Collection Period and allocable to interest allocable to
each Class of Notes and Certificates on such Payment Date;
(c) the Outstanding Amount of each Class of Notes, the Note Pool Factor
for each such Class, the Class [C] Certificate Balance and the Class [C]
Certificate Pool Factor as of the close of business on the preceding Payment
Date, after giving effect to payments allocated to principal reported under
clause (a) above;
(d) the amount of the Servicing Fee paid to the Master Servicer and the
amount of any fees payable to the Owner Trustee, the Custodian or the
Indenture Trustee with respect to the related Collection Period;
(e) the amount of the Regular Principal Allocation for such Payment Date;
(f) the amount of the First Allocation of Principal, if any, for such
Payment Date;
(g) the amount of the Second Allocation of Principal, if any, for such
Payment Date;
(h) the aggregate amounts of Realized Losses, if any, and Cram Down
Losses, if any, separately identified, with respect to the related Collection
Period;
38
(i) the Pool Balance as of the close of business on the last day of the
related Collection Period, after giving effect to payments allocated to
principal reported under clause (a) above;
(j) the balance of the Reserve Account on the related Determination Date
after giving effect to deposits and withdrawals to be made on such Payment
Date, if any;
(k) the amount of any deposit to the Reserve Account and the amount and
application of any funds withdrawn from the Reserve Account, in each case with
respect to such Payment Date;
(l) the aggregate principal balance of all Receivables that became
Liquidated Receivables or Purchased Receivables during the related Collection
Period;
(m) the aggregate principal balance and number of Receivables that are 30
to 59 days, 60 to 89 days or 90 days or more delinquent as of the last day of
the related Collection Period;
(n) the Class [A-1] Interest Carryover Shortfall, the Class [A-2]
Interest Carryover Shortfall, the Class [A-3] Interest Carryover Shortfall,
the Class [A-4] Interest Carryover Shortfall, the Class [B] Interest Carryover
Shortfall and the Class [C] Certificateholders' Interest Carryover Shortfall,
in each case after giving effect to payments on such Payment Date, and any
change in such amounts from the preceding statement;
(o) the aggregate Purchase Amounts for Receivables, if any, that were or
are to be purchased during or with respect to such Collection Period;
(p) the aggregate Principal Balance and number of all Receivables with
respect to which the related Financed Vehicle was repossessed;
(q) the aggregate Principal Balance and number of Receivables with
respect to which the Master Servicer granted an extension; and
(r) the Overcollateralization Target Amount for the next Payment Date.
Each amount set forth on the Payment Date Statement under clauses (a),
(b) or (n) above shall be expressed as a dollar amount per $1,000 of original
principal balance of a Certificate or Note, as applicable.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Representations of Depositor. The Depositor makes the
following representations to the Issuer, the Master Servicer, the Indenture
Trustee and the Seller. The Issuer relies on such representations in accepting
the Receivables and delivering the Securities. Such representations speak as
of the execution and delivery of this Agreement and as of the
39
Closing Date, and shall survive the sale, transfer and assignment of the
Receivables by the Depositor to the Issuer and the pledge thereof to the
Indenture Trustee in accordance with the terms of the Indenture.
(a) Organization and Good Standing. The Depositor is duly organized and
validly existing as a limited liability company in good standing under the
laws of the State of Delaware, with all the requisite power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted.
(b) Due Qualification. The Depositor is duly qualified to do business as
a foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions where the failure to do
so would materially and adversely affect the Depositor's ability to transfer
the Receivables to the Trust pursuant to this Agreement or the validity or
enforceability of the Receivables.
(c) Power and Authority. The Depositor has the limited liability company
power and authority to execute and deliver this Agreement and the other Basic
Documents to which it is a party and to carry out their respective terms; the
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited with the Issuer, and the Depositor shall
have duly authorized such sale and assignment to the Issuer by all necessary
limited liability company action; and the execution, delivery and performance
of this Agreement and the other Basic Documents to which the Depositor is a
party have been, duly authorized by the Depositor by all necessary limited
liability company action.
(d) Binding Obligation. This Agreement and the other Basic Documents to
which the Depositor is a party, when duly executed and delivered by the other
parties hereto and thereto, shall constitute legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally and
to general principles of equity (whether applied in a proceeding at law or in
equity).
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the other Basic Documents and the fulfillment of the terms
of this Agreement and the other Basic Documents shall not conflict with,
result in any breach of any of the terms or provisions of or constitute (with
or without notice or lapse of time, or both) a default under, the limited
liability company agreement or certificate of formation of the Depositor, or
any material indenture, agreement, mortgage, deed of trust or other instrument
to which the Depositor is a party or by which it is bound; or result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement, mortgage, deed of trust or other
instrument, other than this Agreement and the other Basic Documents; or
violate any law, order, rule or regulation applicable to the Depositor of any
court or federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the Depositor's knowledge, threatened, against the Depositor before any
court, regulatory body,
40
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement or any other Basic Document; (ii) seeking to
prevent the issuance of the Notes or the Certificates or the consummation of
any of the transactions contemplated by this Agreement or any other Basic
Document; (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, this Agreement or any other Basic Document;
or (iv) seeking to adversely affect the federal income tax attributes of the
Trust, the Notes or the Certificates.
(g) No Consents. The Depositor is not required to obtain the consent of
any other party or any consent, license, approval, registration,
authorization, or declaration of or with any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement or any other Basic Document to which it is a
party that has not already been obtained.
Section 6.02. Limited Liability Company Existence. Subject to Section
6.04, during the term of this Agreement, the Depositor will keep in full force
and effect its existence, rights and franchises as a limited liability company
under the laws of the jurisdiction of its organization and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration
of this Agreement and the transactions contemplated hereby; provided that
nothing herein shall prohibit the Depositor from converting into another form
of entity provided that it complies with this Section 6.02 in all other
respects except as to form. In addition, all transactions and dealings between
the Depositor and its Affiliates will be conducted on an arm's-length basis.
Section 6.03. Liability of Depositor; Indemnities. The Depositor shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement (which shall not
include distributions on account of the Notes or the Certificates).
Section 6.04. Merger or Consolidation of, or Assumption of the
Obligations of, Depositor. Any Person with which the Depositor shall merge or
consolidate or which the Depositor shall permit to become the successor to the
Depositor's business shall execute an agreement of assumption of every
obligation of the Depositor under this Agreement and the other Basic
Documents. Whether or not such assumption agreement is executed, such
successor Person shall be the successor to the Depositor under this Agreement
without the execution or filing of any document or any further act on the part
of any of the parties to this Agreement. The Depositor shall provide prompt
notice of any merger, consolidation or succession pursuant to this Section
6.04 to the Owner Trustee, the Indenture Trustee, the Master Servicer, the
Securityholders and the Rating Agencies. Notwithstanding the foregoing, the
Depositor shall not merge or consolidate with any other Person or permit any
other Person to become a successor to the Depositor's business unless (w)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 3.02 or 6.01 shall have been breached (for
purposes hereof, such representations and warranties shall speak as of the
date of the consummation of such transaction); provided, that, a change in the
Depositor's form of
41
organization shall not be considered a breach of the representations and
warranties set forth in Section 6.01, (x) the Depositor shall have delivered
to the Owner Trustee, the Indenture Trustee and the Master Servicer an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply
with this Section 6.04 and that all conditions precedent provided for in this
Agreement relating to such transaction have been complied with, (y) the Rating
Agency Condition shall have been satisfied and (z) the Depositor shall have
delivered to the Owner Trustee, the Indenture Trustee and the Master Servicer
an Opinion of Counsel stating that, in the opinion of such counsel, either (A)
all financing statements and continuation statements and amendments thereto
have been executed and filed that are necessary to preserve and protect the
interest of the Trust in the Receivables and reciting the details of such
filings or (B) no such action is necessary to preserve and protect such
interest.
Section 6.05. Limitation on Liability of Depositor and Others. The
Depositor and any director, officer, employee or agent of the Depositor 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 Depositor shall be under no 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.
Section 6.06. Depositor May Own Securities. The Depositor and any
Affiliate thereof may in its individual or any other capacity become the owner
or pledgee of Securities with the same rights as it would have if it were not
the Depositor or an Affiliate thereof, except as expressly provided herein or
in any Basic Document.
Section 6.07. Depositor to Provide Copies of Relevant Securities Filings.
The Depositor shall provide or cause to be provided to the Master Servicer a
copy of any document filed by the Depositor subsequent to the date hereof with
the Securities and Exchange Commission pursuant to the Securities Act of 1933
or the Securities Exchange Act of 1934 that relate specifically to the Trust,
the Notes or the Certificates.
Section 6.08. Amendment of Depositor's Organizational Documents. The
Depositor shall not amend its organizational documents except in accordance
with the provisions thereof.
ARTICLE VII
THE SERVICER
Section 7.01. Representations of Master Servicer. The Master Servicer
makes the following representations upon which the Issuer is deemed to have
relied in acquiring the Receivables. Such representations speak as of the
execution and delivery of this Agreement and as of the Closing Date, and shall
survive the sale of the Receivables to the Issuer and the pledge thereof to
the Indenture Trustee in accordance with the terms of the Indenture.
(a) Organization and Good Standing. The Master Servicer is an Alabama
state banking corporation duly organized and validly existing as a banking
institution under the laws
42
of the State of Alabama and continues to hold a valid certificate to do
business as such. The Master Servicer is duly authorized to own its properties
and transact its business and is in good standing in each jurisdiction in
which the character of the business transacted by it or any properties owned
or leased by it requires such authorization and in which the failure to be so
authorized would have a material adverse effect on the business, properties,
assets, or condition (financial or other) of the Master Servicer and its
subsidiaries, considered as one enterprise. The Master Servicer has, and at
all relevant times had, the power, authority and legal right to acquire, own,
and service the Receivables.
(b) Licenses and Approvals. The Master Servicer has obtained all
necessary licenses and approvals, in all jurisdictions where the failure to do
so would materially and adversely affect the Master Servicer's ability to
service the Receivables.
(c) Power and Authority. The Master Servicer has the power and authority
to execute and deliver this Agreement and the other Basic Documents to which
it is a party and to carry out their respective terms; and the execution,
delivery and performance of this Agreement and the other Basic Documents to
which it is a party have been duly authorized by the Master Servicer by all
necessary action.
(d) Binding Obligation. This Agreement and the other Basic Documents to
which it is a party constitute legal, valid and binding obligations of the
Master Servicer, enforceable against the Master Servicer in accordance with
their respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of equity
whether applied in a proceeding in equity or at law.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the other Basic Documents to which it is a party and the
fulfillment of their respective terms shall not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the articles of
incorporation or bylaws of the Master Servicer, or any material indenture,
agreement, mortgage, deed of trust or other instrument to which the Master
Servicer is a party or by which it is bound; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement, mortgage, deed of trust or other instrument, other
than this Agreement and the other Basic Documents, or violate any law, order,
rule or regulation applicable to the Master Servicer of any court or federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Master Servicer or any of its
properties.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the Master Servicer's knowledge, threatened, against the Master
Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality having jurisdiction over the Master
Servicer or its properties: (i) asserting the invalidity of this Agreement or
any of the other Basic Documents; (ii) seeking to prevent the issuance of the
Securities or the consummation of any of the transactions contemplated by this
Agreement or any of the other Basic Documents; (iii) seeking any determination
or ruling that might materially and adversely affect the performance by the
Master Servicer of its obligations under, or the
43
validity or enforceability of, this Agreement or any of the other Basic
Documents; or (iv) seeking to adversely affect the federal income tax or other
federal, state or local tax attributes of the Securities.
Section 7.02. Indemnities of Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Master Servicer and the representations made by
the Master Servicer under this Agreement:
(a) The Master Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Securityholders and the
Depositor and any of the officers, directors, employees and agents of the
Issuer, the Owner Trustee and the Indenture Trustee 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 Master Servicer or any
Affiliate thereof of a Financed Vehicle, excluding any losses incurred in
connection with the sale of any repossessed Financed Vehicles in a
commercially reasonable manner and in compliance with the terms of this
Agreement.
(b) The Master Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Depositor, and their
respective officers, directors, agents and employees, and the Securityholders,
from and against any taxes that may at any time be asserted against any of
such parties with respect to the transactions contemplated in this Agreement,
including any sales, gross receipts, tangible or intangible personal property,
privilege or license taxes (but not including any federal or other income
taxes, including franchise taxes asserted with respect to, and as of the date
of, the transfer of the Receivables to the Trust or the issuance and original
sale of the Securities), and any reasonable costs and expenses in defending
against the same.
(c) The Master Servicer shall indemnify, defend and hold harmless the
Issuer, the Owner Trustee, the Indenture Trustee, the Depositor, the
Securityholders and any of the officers, directors, employees or agents of the
Issuer, the Owner Trustee, the Depositor and the Indenture Trustee 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 any such Person through, the gross negligence,
willful misfeasance or bad faith of the Master Servicer in the performance of
its duties under this Agreement or by reason of reckless disregard of its
obligations and duties under this Agreement.
For purposes of this Section, in the event of the termination of the
rights and obligations of Regions Bank (or any successor thereto pursuant to
Section 7.03) as Master Servicer pursuant to Section 8.02, or the resignation
by such Master Servicer pursuant to this Agreement, such Master Servicer shall
be deemed to be the Master Servicer pending appointment of a successor Master
Servicer (other than the Indenture Trustee) pursuant to Section 8.03.
Indemnification under this Section shall survive the resignation or
removal of the Master Servicer or the termination of this Agreement with
respect to acts of the Master Servicer prior thereto, and shall include
reasonable fees and expenses of counsel and reasonable expenses of litigation.
If the Master Servicer shall have made any indemnity payments pursuant to this
Section and the Person to or on behalf of whom such payments are made
thereafter collects any
44
of such amounts from others, such Person shall promptly repay such amounts to
the Master Servicer, without interest.
Section 7.03. Merger or Consolidation of, or Assumption of the
Obligations of, Master Servicer. Any Person (i) into which the Master Servicer
may be merged or consolidated, (ii) resulting from any merger or consolidation
to which the Master Servicer shall be a party, (iii) that acquires by
conveyance, transfer or lease substantially all of the assets of the Master
Servicer or (iv) succeeding to the business of the Master Servicer, which
Person shall execute an agreement of assumption to perform every obligation of
the Master Servicer under this Agreement, shall be the successor to the Master
Servicer under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties to this Agreement. The
Master Servicer shall provide notice of any merger, consolidation or
succession pursuant to this Section 7.03 to the Owner Trustee, the Indenture
Trustee and each Rating Agency. Notwithstanding the foregoing, the Master
Servicer shall not merge or consolidate with any other Person or permit any
other Person to become a successor to the Master Servicer's business unless
(i) immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 7.01 shall have been breached (for purposes
hereof, such representations and warranties shall speak as of the date of the
consummation of such transaction) and no event that, after notice or lapse of
time or both, would become a Master Servicer Termination Event shall have
occurred; provided, that, a change in the Master Servicer's form of
organization shall not be considered a breach of the representation or
warranties set forth in Section 7.01, (ii) the Master Servicer shall have
delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
7.03 and that all conditions precedent provided for in this Agreement relating
to such transaction have been complied with and (iii) the Master Servicer
shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion
of Counsel stating that either (A) all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary to preserve and protect the interest of the Trust and the Indenture
Trustee, respectively, in the assets of the Trust and reciting the details of
such filings or (B) no such action shall be necessary to preserve and protect
such interest.
Section 7.04. Limitation on Liability of Master Servicer and Others.
(a) Neither the Master Servicer nor any of its directors, officers,
employees or agents shall be under any liability to the Issuer, the Depositor,
the Indenture Trustee, the Owner Trustee, the Noteholders or the
Certificateholders, except as provided in 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 Master Servicer
against any liability that would otherwise be imposed by reason of a breach of
this Agreement or willful misfeasance, bad faith or negligence in the
performance of duties. The Master Servicer and any director, officer, employee
or agent of the Master Servicer may conclusively rely in good faith on the
written advice of counsel or on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement.
(b) The parties expressly acknowledge and consent to the Indenture
Trustee simultaneously acting in the capacity of successor Master Servicer and
Indenture Trustee. The
45
Indenture Trustee may, in such capacities, discharge its separate functions
fully, without hindrance or regard to conflict of interest principles, duty of
loyalty principles or other breach of fiduciary duties to the extent that any
such conflict or breach arises from the performance by the Indenture Trustee
of express duties set forth in this Agreement in any of such capacities.
Section 7.05. Appointment of Subservicer. The Master Servicer may at any
time appoint a subservicer to perform all or any portion of its obligations as
Master Servicer hereunder; provided, however, that the Master Servicer shall
remain obligated and be liable to the Owner Trustee, the Indenture Trustee and
the Securityholders for the servicing and administering of the Receivables in
accordance with the provisions hereof without diminution of such obligation
and liability by virtue of the appointment of such subservicer and to the same
extent and under the same terms and conditions as if the Master Servicer alone
were servicing and administering the Receivables. The fees and expenses of any
subservicer shall be as agreed between the Master Servicer and such
subservicer from time to time, and none of the Owner Trustee, the Indenture
Trustee, the Issuer or the Securityholders shall have any responsibility
therefor.
Section 7.06. [Master Servicer Not to Resign.
(a) Subject to the provisions of Section 7.03, the Master Servicer shall
not resign from the obligations and duties imposed on it by this Agreement as
Master Servicer except upon a determination that the performance of its duties
under this Agreement shall no longer be permissible under applicable law.
(b) Notice of any determination that the performance by the Master
Servicer of its duties hereunder is no longer permitted under applicable law
shall be communicated to the Owner Trustee and the Indenture Trustee at the
earliest practicable time (and, if such communication is not in writing, shall
be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered by the Master Servicer to the Owner Trustee and the Indenture
Trustee concurrently with or promptly after such notice. No resignation of the
Master Servicer shall become effective until a successor Master Servicer
acceptable to the Controlling Party shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 8.03. If no
Master Servicer has been appointed within 30 days of resignation or removal,
the Controlling Party may petition any court of competent jurisdiction for
such appointment.]
ARTICLE VIII
DEFAULT
Section 8.01. Master Servicer Termination Events. For purposes of this
Agreement, the occurrence and continuance of any of the following shall
constitute a "Master Servicer Termination Event":
(a) any failure by the Master Servicer to deposit into the Collection
Account any proceeds or payment required to be so delivered under the terms of
this Agreement that
46
continues unremedied for a period of [five] Business Days after written notice
is received by the Master Servicer or after discovery of such failure by a
Responsible Officer of the Master Servicer;
(b) failure on the part of the Master Servicer duly to observe or perform
in any material respect any other covenants or agreement of the Master
Servicer set forth in this Agreement, which failure (i) materially and
adversely affects the rights of the Securityholders and (ii) continues
unremedied for a period of [__] days after discovery of such failure by a
Responsible Officer of the Master Servicer or after the date on which written
notice of such failure requiring the same to be remedied shall have been given
to the Master Servicer by any of the Owner Trustee, the Indenture Trustee,
Noteholders evidencing not less than 25% of the Outstanding Amount of the
Controlling Class or, if no Notes are outstanding, Certificateholders of
Certificates evidencing not less than 25% of the Outstanding Amount of the
Certificates; or
(c) [the occurrence of an Insolvency Event with respect to the Master
Servicer.]
Section 8.02. Consequences of a Master Servicer Termination Event. If a
Master Servicer Termination Event shall occur, the Indenture Trustee may, and
at the direction of Noteholders evidencing [not less than a majority] of the
Outstanding Amount of the Controlling Class or, if no Notes are Outstanding,
Certificateholders of Certificates evidencing [not less than a majority] of
the Outstanding Amount of the Certificates, shall terminate all of the rights
and obligations of the Master Servicer under this Agreement by notice in
writing to the Master Servicer. On or after the receipt by the Master Servicer
of such written notice, all authority, power, obligations and responsibilities
of the Master Servicer under this Agreement automatically shall pass to, be
vested in and become obligations and responsibilities of the successor Master
Servicer appointed by the Controlling Party; provided, however, that such
successor Master Servicer shall have no liability with respect to any
obligation that was required to be performed by the terminated Master Servicer
prior to the date that such successor Master Servicer becomes the Master
Servicer or any claim of a third party based on any alleged action or inaction
of the terminated Master Servicer. The successor Master Servicer is authorized
and empowered by this Agreement to execute and deliver, on behalf of the
terminated Master 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 to show the Indenture Trustee (or the Owner
Trustee if the Notes have been paid in full) as lienholder or secured party on
the related certificates of title of the Financed Vehicles or otherwise. The
terminated Master Servicer agrees to cooperate with the successor Master
Servicer in effecting the termination of the responsibilities and rights of
the terminated Master Servicer under this Agreement, including the transfer to
the successor Master Servicer for administration by it of all money and
property held by the Master Servicer with respect to the Receivables and other
records relating to the Receivables, including any portion of the Receivables
File held by the Master Servicer and a computer tape in readable form as of
the most recent Business Day containing all information necessary to enable
the successor Master Servicer to service the Receivables. The terminated
Master Servicer shall also provide the successor Master Servicer access to
Master Servicer personnel and computer records in order to facilitate the
orderly and efficient transfer of servicing duties.
47
Section 8.03. Appointment of Successor Master Servicer.
(a) On and after the time the Master Servicer receives a notice of
termination pursuant to Section 8.02 or upon the resignation of the Master
Servicer pursuant to Section 7.06, the Indenture Trustee shall be the
successor in all respects to the Master Servicer in its capacity as Master
Servicer under this Agreement and shall be subject to all the rights,
responsibilities, restrictions, duties, liabilities and termination provisions
relating to the Master Servicer under this Agreement, except as otherwise
stated herein. The Depositor, the Owner Trustee, the Indenture Trustee and
such successor Master Servicer shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. If a
successor Master Servicer is acting as Master Servicer hereunder, it shall be
subject to termination under Section 8.02 upon the occurrence of any Master
Servicer Termination Event after its appointment as successor Master Servicer.
(b) On and after the time the Master Servicer receives a notice of
termination pursuant to Section 8.02 or upon the resignation of the Master
Servicer pursuant to Section 7.06, or if the Indenture Trustee is legally
unable or unwilling to act as Master Servicer, the Controlling Party may
exercise at any time its right to appoint a successor to the Master Servicer,
and shall have no liability to the Owner Trustee, the Indenture Trustee, the
Master Servicer, the Depositor, any Noteholders, any Certificateholders or any
other Person if it does so. Notwithstanding the above, if the Indenture
Trustee shall be legally unable or unwilling to act as Master Servicer, the
Indenture Trustee, the Owner Trustee or Noteholders evidencing 25% of the
Outstanding Amount of the Controlling Class or, if no Notes are outstanding,
Certificateholders of Certificates evidencing not less than 25% of the
Outstanding Amount of the Certificates, may petition a court of competent
jurisdiction to appoint any Eligible Master Servicer as the successor to the
Master Servicer. Pending appointment pursuant to the preceding sentence, the
Indenture Trustee shall act as successor Master Servicer unless it is legally
unable to do so, in which event the outgoing Master Servicer shall continue to
act as Master Servicer until a successor has been appointed and accepted such
appointment. The Trustee shall be entitled to withdraw from the Collection
Account and remit to the successor Master Servicer or such other party
entitled thereto all reasonably incurred Master Servicer transition costs.
(c) Upon appointment, the successor Master Servicer shall be the
successor in all respects to the predecessor Master Servicer and shall be
subject to all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Master Servicer, and shall be
entitled to the Servicing Fee and all the rights granted to the predecessor
Master Servicer by the terms and provisions of this Agreement.
(d) Any successor Master Servicer shall have the right (x) to terminate
the services of any Subservicer in respect of the Receivables arising under
the related Sub-Servicing Agreement between the predecessor Master Servicer
and such Subservicer which is in effect at the time such successor Master
Servicer assumes its responsibilities as successor Master Servicer or (y) to
assume such related Sub-Servicing Agreement. The successor Master Servicer
will provide the Subservicer, the predecessor Master Servicer, the Indenture
Trustee and the Owner Trustee, within 60 days of its appointment as successor
Master Servicer, written notice of its election to terminate any Sub-Servicing
Agreement on the date set forth in such notice or to assume the Sub-Servicing
Agreement. Any termination fees in connection with such termination shall be
48
paid by the predecessor Master Servicer or the Subservicer pursuant to the
relevant Subservicing Agreement and shall not be obligations of the Indenture
Trustee, the Owner Trustee or the Issuer or paid from the Trust Estate.
Section 8.04. Notification to Securityholders. Upon any termination of,
or appointment of a successor to, the Master Servicer pursuant to this Article
VIII, the Owner Trustee shall give prompt written notice thereof to the
Certificateholders, and the Indenture Trustee shall give prompt written notice
thereof to the Noteholders and each Rating Agency.
Section 8.05. Waiver of Past Defaults. Noteholders evidencing not less
than a majority of the Outstanding Amount of the Controlling Class or, if no
Notes are Outstanding, Certificateholders of Certificates evidencing not less
than a majority of the Outstanding Amount of the Certificates may, on behalf
of all Securityholders, waive in writing any default by the Master Servicer in
the performance of its obligations hereunder and its consequences, except a
default in making any required deposits to or payments from any of the Trust
Accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Master Servicer
Termination Event 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 thereto.
ARTICLE IX
TERMINATION
Section 9.01. Optional Purchase of All Receivables.
(a) On each Determination Date as of which the Pool Balance is equal to
or less than [____]% of the Original Pool Balance, the Master Servicer shall
have the option to purchase all the Receivables; provided however, that the
amount to be paid for such purchase (as set forth in the following sentence)
shall be sufficient to pay the full amount of principal and interest then due
and payable on any Outstanding Notes and outstanding Certificates in full and
to pay any amounts due to the Indenture Trustee, the Owner Trustee and the
Trust Administrator. To exercise such option, the Master Servicer shall
deposit to the Collection Account pursuant to Section 5.04 an amount equal to
the lesser of (i) the fair market value of such Receivables and (ii) the
aggregate Purchase Amount for the Receivables (including Receivables that
became Liquidated Receivables during the related Collection Period) and shall
succeed to all interests in and to the Receivables. The exercise of such
option shall effect a retirement, in whole but not in part, of all outstanding
Notes.
(b) As described in Article IX of the Trust Agreement, notice of any
termination of the Trust shall be given by the Master Servicer to the Owner
Trustee and the Indenture Trustee as soon as practicable after the Master
Servicer has received notice thereof.
(c) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of
49
the Noteholders hereunder and the Owner Trustee will succeed to the rights of,
the Indenture Trustee pursuant to this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendment.
(a) This Agreement may be amended by the Depositor, the Master Servicer,
the Indenture Trustee and the Issuer, without the consent of any of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
in this Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Owner Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of
any Noteholder or Certificateholder; provided further, that such action shall
be deemed not to adversely affect in any material respect the interests of any
Noteholder or Certificateholder and no Opinion of Counsel to that effect shall
be required if the person requesting the amendment obtains a letter from the
Rating Agencies stating that the amendment would not result in the downgrading
or withdrawal of the ratings then assigned to the Notes and the Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer and the Issuer, with the prior written consent
of the Indenture Trustee, Noteholders holding not less than a majority of the
Outstanding Amount of the Class [A] Notes, Noteholders holding not less than a
majority of the Outstanding Amount of the Class [B] Notes, and the Holders of
outstanding Class [C] Certificates evidencing not less than a majority of the
outstanding Class [C] Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the
Securityholders; provided, however, that no such amendment shall (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that shall be required
to be made for the benefit of the Securityholders or (ii) reduce the aforesaid
percentage of the Outstanding Amount of the Class [A] Notes, the Class [B]
Notes or the Class [C] Certificates, the Securityholders of which are required
to consent to any such amendment, without the consent of the Noteholders
holding all Outstanding Class [A] Notes, Class [B] Notes and
Certificateholders holding all Outstanding Class [C] Certificates.
Promptly after the execution of any amendment or consent, the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Securityholder, the Indenture Trustee and each
Rating Agency.
It shall not be necessary for the consent of Securityholders pursuant to
this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof.
50
Prior to the execution of any amendment to this Agreement, the Owner
Trustee, on behalf of the Issuer, and the Indenture 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 10.02(i)(A). The Owner Trustee, on behalf of
the Issuer, and the Indenture Trustee may, but shall not be obligated to,
enter into any such amendment that affects the Owner Trustee's or the
Indenture Trustee's, as applicable, own rights, duties or immunities under
this Agreement or otherwise.
Section 10.02. Protection of Title to Trust.
(a) The Master Servicer shall execute and file such financing statements
and cause to be executed and filed such continuation statements, all in such a
manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Issuer and the Indenture Trustee in
the Receivables and the proceeds thereof. The Master Servicer shall deliver or
cause to be delivered to the Owner Trustee and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above as soon as available following such filing. In addition, the Seller and
the Depositor hereby authorize the Issuer at any time and from time to time to
prepare and file financing statements and amendments thereto in any
jurisdiction as may be necessary or desirable to preserve, maintain and
protect the interests of the Issuer and the Indenture Trustee in the
Receivables and the proceeds thereof.
(b) None of the Seller, the Depositor or the Master 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 in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-506 of the UCC, unless it shall have given the Owner Trustee and the
Indenture Trustee at least five days' prior written notice thereof and shall
have promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
(c) Each of the Seller, the Depositor and the Master Servicer shall have
an obligation to give the Owner Trustee and the Indenture Trustee at least
five Business Days' prior written notice of any change in the jurisdiction of
its organization if, as a result of such change of jurisdiction, 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, and shall promptly file any such amendment or new
financing statement. The Master 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 Master 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 each such Receivable, including
payments and recoveries made and payments owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on or with respect to each
such Receivable and the amounts from time to time deposited in the Collection
Account in respect of each such Receivable.
(e) The Master Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables, the Master
Servicer's master computer
51
records (including any backup archives) that refer to a Receivable shall be
coded to reflect that such Receivable is part of the portfolio of Receivables
that is the subject of this Agreement and is owned by Regions Auto Receivables
Trust 200__-__ and pledged by Regions Auto Receivables Trust 200__-__ to the
Indenture Trustee for the benefit of the Noteholders. Indication of such
Receivables' inclusion in the portfolio shall be deleted from or modified on
the Master Servicer's computer systems when, and only when, the related
Receivable shall have been paid in full or repurchased.
(f) If at any time the Depositor or the Master Servicer shall propose to
sell, grant a security interest in or otherwise transfer any interest in motor
vehicle receivables to any prospective purchaser, lender or other transferee,
the Master Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Issuer and has been pledged to the Indenture Trustee.
(g) The Master Servicer shall permit the Indenture Trustee and its agents
upon reasonable notice and at any time during normal business hours, which
does not unreasonably interfere with the Master Servicer's normal operations
or customer or employee relations, to inspect, audit and make copies of and
abstracts from the Master Servicer's records regarding any Receivable.
(h) Upon request, the Master Servicer shall furnish to the Owner Trustee
or the Indenture Trustee, within fifteen 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 Master Servicer's Certificates furnished prior
to such request indicating removal of Receivables from the Trust.
The Master Servicer shall deliver to the Owner Trustee and the Indenture
Trustee:
(A) promptly after the execution and delivery of this Agreement and
each amendment hereto, an Opinion of Counsel stating that, in the opinion of
such counsel, either (i) all financing statements and continuation statements
have been executed and filed that are necessary to fully preserve and protect
the interest of the Trust and the Indenture Trustee in the Receivables, and
reciting the details of such filings or referring to prior Opinions of Counsel
in which such details are given, or (ii) no such action shall be necessary to
preserve and protect such interest; and
(B) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months after
the Initial Cutoff Date, an Opinion of Counsel, dated as of a date during such
90-day period, stating that, in the opinion of such counsel, either (i) all
financing statements and continuation statements have been executed and filed
that are necessary to fully preserve and protect the interest of the Trust and
the Indenture Trustee in the Receivables, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such details are
given, or (ii) no such action shall be necessary to preserve and protect such
interest.
52
Each Opinion of Counsel referred to in clause (i) or (ii) above shall
specify any action necessary (as of the date of such opinion) to be taken in
the following year to preserve and protect such interest.
Section 10.03. Notices. All demands, notices, communications and
instructions upon or to the Depositor, the Master Servicer, the Issuer, the
Owner Trustee, the Indenture Trustee or any Rating Agency under this Agreement
shall be in writing, personally delivered, faxed and followed by first class
mail, or mailed by certified mail, return receipt requested, and shall be
deemed to have been duly given upon receipt (a) in the case of the Depositor,
to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) in the case of the
Master Servicer, Administrator and Custodian, to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (c) in the case of [INDENTURE TRUSTEE], to
[ADDRESS]; (d) in the case of the Issuer or the Owner Trustee, at the
Corporate Trust Administration Department (as defined in the Trust Agreement);
(e) in the case of [RATING AGENCY], to [ADDRESS], and (g) in the case of
[RATING AGENCY], to [ADDRESS]; or, as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties.
Section 10.04. Assignment by the Depositor or the Master Servicer.
Notwithstanding anything to the contrary contained herein, except as provided
in Sections 6.04 and 7.03 herein and as provided in the provisions of this
Agreement concerning the resignation of the Master Servicer, this Agreement
may not be assigned by the Depositor or the Master Servicer.
Section 10.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Depositor, the Master Servicer,
the Issuer, the Owner Trustee, the Certificateholders, the Indenture Trustee
and the Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 10.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 10.07. Counterparts. This Agreement may be executed by the
parties hereto in any number of counterparts, each of which when so executed
and delivered shall be an original, but all of which shall together constitute
but one and the same instrument.
Section 10.08. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.09. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS THAT WOULD APPLY THE LAW OF ANY JURISDICTION OTHER
THAN THE STATE OF NEW YORK, AND THE
53
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.10. Assignment by Issuer. The Depositor hereby acknowledges
and consents to any mortgage, pledge, assignment and grant of a security
interest by the Issuer to the Indenture Trustee in accordance with the terms
of the Indenture for the benefit of the Noteholders of all right, title and
interest of the Issuer in, to and under the Receivables or the assignment of
any or all of the Issuer's rights and obligations hereunder to the Indenture
Trustee.
Section 10.11. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the parties hereto shall not, prior to the date
that is one year and one day after the termination of this Agreement with
respect to the Issuer or the Depositor, acquiesce, petition or otherwise
invoke or cause the Issuer or the Depositor to invoke the process of any court
or government authority for the purpose of commencing or sustaining a case
against the Issuer or the Depositor under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or
the Depositor or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer or the Depositor.
Section 10.12. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by [OWNER TRUSTEE] not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall [OWNER TRUSTEE] in its individual capacity or, except as expressly
provided in the Trust Agreement, as Owner Trustee of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer in accordance with the priorities set forth
herein. For all purposes of this Agreement, in the performance of its duties
or obligations hereunder or in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by [INDENTURE TRUSTEE], not in its individual
capacity but solely as Indenture Trustee, and in no event shall [INDENTURE
TRUSTEE] have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer in accordance
with the priorities set forth herein.
Section 10.13. Entity Obligation. No recourse may be taken, directly or
indirectly, against any partner, incorporator, authorized person, member,
subscriber to the capital stock or membership interests, stockholder,
director, officer or employee of the Depositor, the Master Servicer, the
Custodian, the Seller or the Administrator, with respect to their respective
obligations and indemnities under this Agreement, any of the other Basic
Documents or any certificate or other writing delivered in connection herewith
or therewith.
54
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
[OWNER TRUSTEE], not in its individual capacity
but solely as Owner Trustee of
REGIONS AUTO RECEIVABLES TRUST 200__-__
By: ___________________________________
Name:
Title:
DEPOSITOR
By: ___________________________________
Name:
Title:
REGIONS BANK
By: ___________________________________
Name:
Title:
[OWNER TRUSTEE]
By: ___________________________________
Name:
Title
55
SCHEDULE A
[RESERVED]
SCHEDULE B
Final Schedule of Receivables
-----------------------------
SCHEDULE C
Location of Receivable Files
----------------------------
EXHIBIT A
Representations and Warranties of the Seller
--------------------------------------------
Under Section 3.02 of the Receivables Purchase Agreement
--------------------------------------------------------
EXHIBIT B
Form of Payment Date Statement to Securityholders
EXHIBIT C
FORM OF MASTER SERVICER'S CERTIFICATE
EXHIBIT D-1
EXTENSION POLICY
EXHIBIT D-2
FORM OF DEALER AGREEMENT
EXHIBIT D-3
FORM OF ASSIGNMENT
EXHIBIT E
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
1. General. The Sale and Servicing Agreement creates a valid and
continuing security interest (as defined in the UCC) in all of the Depositor's
right, title and interest in and to the Receivables in favor of the Issuer
which, (a) is enforceable upon execution of the Sale and Servicing Agreement
against creditors of and purchasers from the Depositor as such enforceability
may be limited by applicable debtor relief laws, now or hereafter in effect,
and by general principles of equity (whether considered in a suit at law or in
equity), and (b) upon filing of the financing statements described in clause 4
below will be prior to all other Liens (other than Liens permitted pursuant to
clause 5 below).
2. Characterization. The Receivables constitute "tangible chattel paper"
within the meaning of UCC Section 9-102. Except with respect to [o]% of the
aggregate principal balance of the Receivables as of the Cutoff Date, for
which the related Lien Certificates show [_____] named as the original secured
party under such Receivables as the holder of a first priority security
interest in such Financed Vehicle (which Lien Certificates and the related
security interests have been validly assigned to the Trust), the Depositor has
taken all steps necessary to perfect its security interest against the Obligor
in the Financed Vehicles securing the Receivables.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to the Sale and Servicing Agreement, the Depositor owns and has good
and marketable title to, or has a valid security interest in, the Receivables
free and clear of any Lien, claim or encumbrance of any Person.
4. Perfection. The Depositor has caused or will have caused, within ten
days of the Closing Date, the filing of all appropriate financing statements
in the proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest granted to the Issuer under the
Sale and Servicing Agreement in the Receivables.
5. Priority. Other than the security interests granted to the Issuer
pursuant to the Sale and Servicing Agreement, the Depositor has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of
the Receivables, the Depositor has not authorized the filing of and is not
aware of any financing statements against the Depositor that includes a
description of collateral covering the Receivables other than any financing
statement (i) relating to the security interests granted to the Issuer under
the Sale and Servicing Agreement, (ii) that has been terminated or (iii) that
has been granted pursuant to the terms of the Basic Documents. None of the
tangible chattel paper that constitutes or evidences the Receivables has any
marks or notations indicating that they are pledged, assigned or otherwise
conveyed to any Person other than Indenture Trustee.