EXECUTION COPY
SALE AND SERVICING AGREEMENT
among
HUNTINGTON AUTO TRUST 2000-A,
Issuer,
SSB VEHICLE SECURITIES INC.,
Depositor,
THE HUNTINGTON NATIONAL BANK,
Seller, Servicer, Administrator and Custodian,
and
THE CHASE MANHATTAN BANK,
Indenture Trustee
Dated as of March 1, 2000
Table of Contents
Page
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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...............................................................21
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of the Seller............................................23
Section 3.02. Representations and Warranties of the Depositor.........................................23
Section 3.03. Repurchase Upon Breach..................................................................24
Section 3.04. Custody of Receivable Files.............................................................24
Section 3.05. Duties of Servicer as Custodian.........................................................24
Section 3.06. Instructions; Authority to Act..........................................................25
Section 3.07. Custodian's Indemnification.............................................................25
Section 3.08. Effective Period and Termination........................................................26
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Duties of Servicer......................................................................27
Section 4.02. Collection of Receivable Payments; Modifications of Receivables.........................28
Section 4.03. Realization upon Receivables............................................................28
Section 4.04. Physical Damage Insurance...............................................................29
Section 4.05. Maintenance of Security Interests in Financed Vehicles..................................29
Section 4.06. Covenants of Servicer...................................................................29
Section 4.07. Purchase of Receivables Upon Breach.....................................................30
Section 4.08. Servicing Fee...........................................................................30
Section 4.09. Servicer's Certificate..................................................................30
Section 4.10. Annual Statement as to Compliance; Notice of Servicer Termination Event.................30
Section 4.11. Annual Independent Accountants' Report..................................................31
Section 4.12. Access to Certain Documentation and Information Regarding Receivables...................31
Section 4.13. Term of Servicer........................................................................32
Section 4.14. Access to Information Regarding Trust and Basic Documents...............................32
ARTICLE V
DISTRIBUTIONS; STATEMENTS TO SECURITYHOLDERS
Section 5.01. Establishment of Accounts...............................................................33
Section 5.02. Collections.............................................................................35
Section 5.03. Application of Collections..............................................................35
Section 5.04. Purchase Amounts........................................................................35
Section 5.05. Reserved................................................................................35
Section 5.06. Distributions...........................................................................36
Section 5.07. Reserve Account.........................................................................38
Section 5.08. Statements to Securityholders...........................................................38
Section 5.09. Advances by the Servicer................................................................40
ARTICLE VI
THE DEPOSITOR
Section 6.01. Representations of Depositor............................................................41
Section 6.02. Corporate Existence.....................................................................42
Section 6.03. Liability of Depositor; Indemnities.....................................................42
Section 6.04. Merger or Consolidation of, or Assumption of the Obligations of, Depositor..............42
Section 6.05. Limitation on Liability of Depositor and Others.........................................43
Section 6.06. Depositor May Own Securities............................................................43
Section 6.07. Depositor to Provide Copies of Relevant Securities Filings..............................43
Section 6.08. Amendment of Depositor's Organizational Documents.......................................43
ARTICLE VII
THE SERVICER
Section 7.01. Representations of Servicer.............................................................44
Section 7.02. Indemnities of Servicer.................................................................45
Section 7.03. Merger or Consolidation of, or Assumption of the Obligations of, Servicer...............46
Section 7.04. Limitation on Liability of Servicer and Others..........................................46
Section 7.05. Appointment of Subservicer..............................................................47
Section 7.06. Servicer Not to Resign..................................................................47
ARTICLE VIII
DEFAULT
Section 8.01. Servicer Termination Events.............................................................48
Section 8.02. Consequences of a Servicer Termination Event............................................48
Section 8.03. Appointment of Successor Servicer.......................................................49
Section 8.04. Notification to Securityholders.........................................................50
Section 8.05. Waiver of Past Defaults.................................................................50
ARTICLE IX
TERMINATION
Section 9.01. Optional Purchase of All Receivables....................................................51
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendment...............................................................................52
Section 10.02. Protection of Title to Trust............................................................53
Section 10.03. Notices.................................................................................54
Section 10.04. Assignment by the Depositor or the Servicer.............................................55
Section 10.05. Limitations on Rights of Others.........................................................55
Section 10.06. Severability............................................................................55
Section 10.07. Counterparts............................................................................55
Section 10.08. Headings................................................................................55
Section 10.09. GOVERNING LAW...........................................................................55
Section 10.10. Assignment by Issuer....................................................................55
Section 10.11. Nonpetition Covenants...................................................................56
Section 10.12. Limitation of Liability of Owner Trustee and Indenture Trustee..........................56
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 Distribution Date Statement to Securityholders
Exhibit C Form of Servicer's Certificate
Exhibit D-1 Extension Policy
Exhibit D-2 Form of Dealer Agreement
Exhibit D-3 Form of Assignment
This SALE AND SERVICING AGREEMENT, dated as of March 1, 2000, among
HUNTINGTON AUTO TRUST 2000-A, a Delaware business trust (the "Issuer"), SSB
VEHICLE SECURITIES INC., a Delaware corporation (the "Depositor"), THE
HUNTINGTON NATIONAL BANK, a national banking association, as servicer (in such
capacity, the "Servicer"), as seller (in such capacity, the "Seller"), as
administrator (in such capacity, the "Administrator") and as custodian (in
such capacity, the "Custodian") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as indenture trustee (the "Indenture Trustee").
WHEREAS, the Issuer desires to purchase a portfolio of receivables
arising in connection with motor vehicle retail installment sale contracts and
loan notes originated or purchased by The Huntington National Bank in the
ordinary course of its business and sold by The Huntington National Bank to
the Depositor;
WHEREAS, the Depositor is willing to sell such receivables to the Issuer;
and
WHEREAS, The Huntington National 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:
"Advance" means, as to any Distribution Date, the aggregate of all
scheduled payments of interest which were due during the related Collection
Period that remained unpaid at the end of such Collection Period and were not
collected during such Collection Period, exclusive of any such scheduled
payment which the Servicer has determined would be a Nonrecoverable Advance if
an advance in respect of such scheduled payment were made.
"Advance Reimbursement Amount" means any amount received or deemed to be
received by the Servicer pursuant to Section 5.09 in reimbursement of a
Advance made out of its own funds.
"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,
and the Note Depository Agreement and other documents and certificates
delivered in connection therewith.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or any other day on which national banking institutions or commercial
banking institutions in the States of New York, Ohio or Delaware are
authorized or required by law, executive order or governmental decree to be
closed.
"Certificate" means any Class C Certificate.
"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 Distribution Date, the sum of the Class C Certificateholders' Monthly
Interest Distributable Amount for such Distribution Date and the Class C
Certificateholders' Interest Carryover Shortfall for such Distribution 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 Distribution Date, the sum of the Class A-1 Interest Distributable
Amount for such Distribution Date, the Class A-2 Interest Distributable Amount
for such Distribution Date, the Class A-3 Interest Distributable Amount for
such Distribution Date and, the Class A-4 Interest Distributable Amount for
such Distribution Date.
"Class A-1 Final Scheduled Distribution Date" means the Distribution Date
in April 2001.
"Class A-1 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class A-1
Monthly Interest Distributable Amount for the preceding Distribution Date and
any outstanding Class A-1 Interest Carryover Shortfall on such preceding
Distribution 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 Distribution Date, plus interest on the amount of interest due but
not paid to the Class A-1 Noteholders on such preceding Distribution Date, to
the extent permitted by law, at the Class A-1 Rate.
"Class A-1 Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-1 Monthly Interest Distributable
Amount for such Distribution Date and the Class A-1 Interest Carryover
Shortfall for such Distribution Date.
"Class A-1 Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, interest accrued from and including the prior
Distribution Date (or, in the case of the first Distribution Date, from and
including the Closing Date) to and including the day immediately prior to such
Distribution 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
Distribution Date (or, in the case of the first Distribution Date, the Closing
Date), after giving effect to all distributions of principal to the Class A-1
Noteholders on or prior to such preceding Distribution 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 6.316% Asset Backed Notes, Class A-1,
substantially in the form of Exhibit A-1 to the Indenture.
"Class A-1 Rate" means 6.316% per annum.
"Class A-2 Final Scheduled Distribution Date" means the Distribution Date
in October 2002.
"Class A-2 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class A-2
Monthly Interest Distributable Amount for the preceding Distribution Date and
any outstanding Class A-2 Interest Carryover Shortfall on such preceding
Distribution 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 Distribution Date, plus interest on the amount of interest due but
not paid to the Class A-2 Noteholders on such preceding Distribution Date, to
the extent permitted by law, at the Class A-2 Rate.
"Class A-2 Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-2 Monthly Interest Distributable
Amount for such Distribution Date and the Class A-2 Interest Carryover
Shortfall for such Distribution Date.
"Class A-2 Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, interest accrued from and including the 15th day of the
preceding calendar month (or, in the case of the first Distribution Date, from
and including the Closing Date) to and including the 14th day of the calendar
month in which such Distribution 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 Distribution Date (or, in the case of the first
Distribution Date, the Closing Date), after giving effect to all distributions
of principal to the Class A-2 Noteholders on or prior to such preceding
Distribution 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.
"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 6.97% Asset Backed Notes, Class A-2,
substantially in the form of Exhibit A-2 to the Indenture.
"Class A-2 Rate" means 6.97% per annum.
"Class A-3 Final Scheduled Distribution Date" means the Distribution Date
in July 2004.
"Class A-3 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class A-3
Monthly Interest Distributable Amount for the preceding Distribution Date and
any outstanding Class A-3 Interest Carryover Shortfall on such preceding
Distribution 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 Distribution Date, plus interest on the amount of interest due but
not paid to the Class A-3 Noteholders on such preceding Distribution Date, to
the extent permitted by law, at the Class A-3 Rate.
"Class A-3 Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-3 Monthly Interest Distributable
Amount for such Distribution Date and the Class A-3 Interest Carryover
Shortfall for such Distribution Date.
"Class A-3 Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, interest accrued from and including the 15th day of the
preceding calendar month (or, in the case of the first Distribution Date, from
and including the Closing Date) to and including the 14th day of the calendar
month in which such Distribution 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 Distribution Date (or, in the case of the first
Distribution Date, the Closing Date), after giving effect to all distributions
of principal to the Class A-3 Noteholders on or prior to such preceding
Distribution 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 7.33% Asset Backed Notes, Class A-3,
substantially in the form of Exhibit A-3 to the Indenture.
"Class A-3 Rate" means 7.33% per annum.
"Class A-4 Final Scheduled Distribution Date" means the Distribution Date
in July 2005.
"Class A-4 Interest Carryover Shortfall" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class A-4
Monthly Interest Distributable Amount for the preceding Distribution Date and
any outstanding Class A-4 Interest Carryover Shortfall on such preceding
Distribution 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 Distribution Date, plus interest on the amount of interest due but
not paid to the Class A-4 Noteholders on such preceding Distribution Date, to
the extent permitted by law, at the Class A-4 Rate.
"Class A-4 Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A-4 Monthly Interest Distributable
Amount for such Distribution Date and the Class A-4 Interest Carryover
Shortfall for such Distribution Date.
"Class A-4 Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, interest accrued from and including the 15th day of the
preceding calendar month (or, in the case of the first Distribution Date, from
and including the Closing Date) to and including the 14th day of the calendar
month in which such Distribution 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 Distribution Date (or, in the case of the first
Distribution Date, the Closing Date), after giving effect to all distributions
of principal to the Class A-4 Noteholders on or prior to such preceding
Distribution 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 7.42% Asset Backed Notes, Class A-4,
substantially in the form of Exhibit A-4 to the Indenture.
"Class A-4 Rate" means 7.42% per annum.
"Class B Final Scheduled Distribution Date" means the Distribution Date
in January 2006.
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the amount, if any, by which the sum of the Class B Monthly
Interest Distributable Amount for the preceding Distribution Date and any
outstanding Class B Interest Carryover Shortfall on such preceding
Distribution Date exceeds the amount in respect of interest for the Class B
Notes actually deposited in the Note Interest Distribution Account on such
preceding Distribution Date, plus interest on the amount of interest due but
not paid to the Class B Noteholders on such preceding Distribution Date, to
the extent permitted by law, at the Class B Rate.
"Class B Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, interest accrued from and including the 15th day of the
preceding calendar month (or, in the case of the first Distribution Date, from
and including the Closing Date) to and including the 14th day of the calendar
month in which such Distribution 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 Distribution Date (or, in the case of the first Distribution Date,
the Closing Date), after giving effect to all distributions of principal to
the Class B Noteholders on or prior to such preceding Distribution 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.
"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 Distribution Date, the sum of the Class B Monthly Interest
Distributable Amount for such Distribution Date and the Class B Interest
Carryover Shortfall for such Distribution Date.
"Class B Notes" means the 7.44% Asset Backed Notes, Class B,
substantially in the form of Exhibit B to the Indenture.
"Class B Rate" means 7.44% per annum.
"Class C Certificate" means a certificate for Huntington Auto Trust,
Series 2000-A, 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 Distribution 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 Distribution Date, the amount, if any, by which the sum of the
Class C Certificateholders' Monthly Interest Distributable Amount for the
immediately preceding Distribution Date and any outstanding Class C
Certificateholders' Interest Carryover Shortfall on such preceding
Distribution 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 Distribution Date, to the extent
permitted by law, at the Class C Rate.
"Class C Certificateholders' Monthly Interest Distributable Amount"
means, with respect to any Distribution Date, interest accrued from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from and including the Closing Date) to and including
the 14th day of the calendar month in which such Distribution Date occurs, on
the Class C Certificates at the Class C Rate on the Class C Certificate
Balance on the immediately preceding Distribution Date (or, in the case of the
first Distribution Date, the Closing Date), after giving effect to all
distributions of principal to the Class C Certificateholders on or prior to
such preceding Distribution 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.
"Class C Final Scheduled Distribution Date" means the Distribution Date
in March 2007.
"Class C Rate" means 7.83% per annum.
"Closing Date" means March 30, 2000.
"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 Distribution Date, the
calendar month preceding such Distribution 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 Distribution Date.
"Contract" means a motor vehicle retail installment sale contract or a
motor vehicle installment loan 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 Servicer receives notice of
such order.
"Custodian" means The Huntington National Bank, in its capacity as
custodian of the Receivables.
"Dealer" means the dealer which sold a Financed Vehicle and through which
Huntington originated the related Receivable or which originated the related
Receivable and assigned it to Huntington pursuant to a Dealer Agreement or
form of assignment, as applicable.
"Dealer Agreement" means an agreement between Huntington and a Dealer
pursuant to which such Dealer sells Contracts to Huntington or Huntington
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 bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC and are susceptible of
physical delivery, transfer thereof 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
(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 SSB and its successors in interest.
"Determination Date" means, with respect to each Distribution Date, the
earlier of (i) the eleventh calendar day of the month in which such
Distribution 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
Distribution Date.
"Distribution Date" means, with respect to each Collection Period, the
fifteenth day of the following month or, if such day is not a Business Day,
the immediately following Business Day, commencing on April 17, 2000.
"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
Standard & Poor's and "A2" by Moody's or (B) a short-term unsecured debt
rating or certificate of deposit rating of at least "A-1+" by Standard &
Poor's and "Prime-1" by Moody's 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);
(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 Servicer has
received written notification from Standard & Poor's 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 Servicer" means Huntington or any other Person that at the time
of its appointment as Servicer (i) is servicing a portfolio of motor vehicle
retail installment sale contracts or motor vehicle installment loans, (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 motor vehicle retail installment sale contracts or motor vehicle
installment loans 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 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 Distribution Date" means the Class A-1 Final Scheduled
Distribution Date, the Class A-2 Final Scheduled Distribution Date, the Class
A-3 Final Scheduled Distribution Date, the Class A-4 Final Scheduled
Distribution Date, the Class B Final Scheduled Distribution Date or the Class
C Final Scheduled Distribution 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 Distribution
Date, the excess, if any, of (x) the aggregate Outstanding Amount of the Class
A Notes (as of the day immediately preceding such Distribution Date) over (y)
the Pool Balance for such Distribution Date.
"Huntington" means The Huntington National Bank, a national banking
association.
"Indenture" means the Indenture, dated as of March 1, 2000, 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 $130,000,000.
"Initial Class A-2 Note Balance" means $108,000,000.
"Initial Class A-3 Note Balance" means $166,000,000.
"Initial Class A-4 Note Balance" means $71,000,000.
"Initial Class B Note Balance" means $15,000,000.
"Initial Class C Certificate Balance" means $5,000,000.
"Initial Cutoff Date" means the close of business on February 29, 2000.
"Initial Overcollateralization Amount" means $5,000,000.
"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 Distribution Date on which interest
has been paid (or, in the case of the first Distribution Date, the Closing
Date) to and including the day before the Distribution 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 Distribution Date, the
Closing Date) to and including the 14th day of the calendar month in which
such Distribution Date occurs.
"Interest Distribution Amount" means, with respect to any Distribution
Date, the sum of the following amounts, without duplication, with respect to
the Receivables in respect of the Collection Period preceding such
Distribution Date: (a) that portion of all collections on Receivables
allocable to interest (including any Advances for that Collection Period, but
excluding the amount, if any, of reimbursements of Advances previously made by
the Servicer), (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 Distribution 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
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 Distribution 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 Distribution Date pursuant to Section 5.01(e).
"Issuer" means Huntington Auto Trust 2000-A.
"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 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
Servicer reasonably allocated to such liquidation and any amounts required by
law to be remitted to the Obligor on such Liquidated Receivable.
"Minimum Required Rating" means, with respect to Huntington, a short-term
unsecured debt rating equal to or greater than "Prime-1" by Moody's and "A-1"
by Standard & Poor's.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"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.
"Nonrecoverable Advance" means any advance made or proposed to be made
pursuant to Section 5.09, which the Servicer believes, in its good faith
judgment, is not, or if made would not be, ultimately recoverable from
Liquidation Proceeds or otherwise. In determining whether an advance is or
will be nonrecoverable, the Servicer need not take into account that it might
receive any amounts in a deficiency judgment.
"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).
"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 Distribution 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 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 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.
"Outstanding Amount Advanced" means, as to any Distribution Date, the
aggregate of all Advances remitted by the Servicer out of its own funds
pursuant to Section 5.09, less the aggregate of all related Advance
Reimbursement Amounts actually received prior to such Distribution Date.
"Overcollateralization Target Amount" means, as of the first Distribution
Date, the Initial Overcollateralization Amount and, as of any Distribution
Date thereafter, the greater of: (1) 2.50% of the Pool Balance for such
Distribution 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 Wilmington Trust Company, acting not in its
individual capacity but solely as owner trustee under the Trust Agreement.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" means, with respect to any Distribution 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
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.
"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
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 Moody's or Standard & Poor's, as the context may
require. If none of Moody's, Standard & Poor's 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 Distribution 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;
(iii) the original certificate of title or such other documents that
the 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 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 March 1, 2000, between The Huntington National Bank, as seller and
SSB, as depositor.
"Record Date" means, as to any Distribution Date, the day immediately
preceding such Distribution 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 Servicer for the account of the Obligor and any amounts
required by law to be remitted to the Obligor.
"Regular Principal Allocation" means, with respect to any Distribution
Date, the excess, if any, of the aggregate Outstanding Amount of the
Securities as of the day immediately preceding such Distribution Date over (a)
the Pool Balance with respect to such Distribution Date less (b) the
Overcollateralization Target Amount with respect to such Distribution Date;
provided however, that the Regular Principal Allocation on any Distribution
Date shall not exceed the Outstanding Amount of the Securities as of the day
immediately preceding such Distribution Date and provided further, that the
Regular Principal Allocation on or after the Final Scheduled Distribution 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
Distribution 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).
"Reserve Account Initial Deposit" means $10,000,000.
"Reserve Account Release Amount" means, with respect to any Distribution
Date, the excess, if any, of (i) the amount on deposit in the Reserve Account
on such Distribution Date (prior to giving effect to any withdrawals therefrom
relating to such Distribution Date) over (ii) the Reserve Account Required
Amount with respect to such Distribution Date.
"Reserve Account Required Amount" means (a) on the Closing Date, the
Reserve Account Initial Deposit and (b) with respect to any Distribution Date,
an amount equal to 2.00% 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) $5,750,000 and (b) the
aggregate principal amount of the Securities on such Distribution Date (after
giving effect to distributions on such date).
"Reserve Account Withdrawal Amount" means, with respect to each
Distribution 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 Distribution Date) and (ii) the
excess, if any, of the sum of following amounts for such Distribution Date
over the Total Distribution Amount for such Distribution 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 Distribution Date occurring on or after the
Final Scheduled Distribution 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
Distribution Date) exceeds the Pool Balance with respect to such Distribution
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 Distribution 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 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 Distribution
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
Distribution Date) over (y) the Pool Balance for such Distribution Date.
"Securities" means the Notes and the Certificates.
"Securities Intermediary" means The Chase Manhattan Bank, in its capacity
as the securities intermediary in the Securities Account Control Agreement
dated as of March 30, 2000.
"Securityholders" means the Noteholders and/or the Certificateholders, as
the context may require.
"Seller" means Huntington and its successors in interest, as seller of
the Receivables to the Depositor pursuant to the Receivables Purchase
Agreement.
"Servicer" means Huntington, as the servicer of the Receivables, and each
successor to Huntington (in the same capacity) pursuant to Section 7.03 or
8.03.
"Servicer Termination Event" shall have the meaning set forth in Section
8.01.
"Servicer's Certificate" means an Officers' Certificate of the Servicer
delivered pursuant to Section 4.09, substantially in the form of Exhibit C.
"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 1.0% 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.
"SSB" means SSB Vehicle Securities Inc., a Delaware corporation, and its
successors.
"Standard & Poor's" means Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"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.
"Total Distribution Amount" means, for each Distribution 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 March 1, 2000,
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 Capital Markets Fiduciary Services 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.
(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 sell, transfer, assign, 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;
(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 insurance policies covering the Financed Vehicles
or the related Obligors;
(iv) the amount of any remaining balance on a Receivable actually
cancelled in accordance with the terms of any Huntington GAP protection
applicable to such Receivable;
(v) any property that shall have secured a Receivable and that shall
have been acquired by or on behalf of the Depositor, the Servicer or the
Trust;
(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").
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 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 sale, 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 sold, assigned,
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 repurchase 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 sale 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:
(a) Title. The Depositor shall convey to the Issuer all right, title and
interest of the Depositor in and to the Receivables.
(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.
Section 3.03. Repurchase Upon Breach. Each of the Depositor, the Owner
Trustee, the Indenture Trustee, the Seller and the 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 Servicer, and the 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.
Section 3.05. Duties of Servicer as Custodian.
(a) Safekeeping. The 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 Servicer shall act
with reasonable care, using that degree of skill and attention that the
Servicer exercises with respect to the receivable files relating to all
comparable automotive receivables that the Servicer services for itself or
others. The Servicer shall conduct, or cause to be conducted, periodic audits
of the Receivable Files held by it under this Agreement and of the related
accounts, records and computer systems, in such a manner as shall enable the
Issuer or the Indenture Trustee to verify the accuracy of the Servicer's
record keeping. The 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 Servicer shall maintain
each Receivable File at one of its offices 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 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 Servicer at such times during normal
business hours as the Issuer shall reasonably instruct, which does not
unreasonably interfere with the Servicer's normal operations or customer or
employee relations.
(c) Release of Documents. Upon instruction from the Indenture Trustee or,
if the Notes have been paid in full, from the Owner Trustee, the 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
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
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 Servicer's responsibilities is
dependent upon possession of such documents, unless and until such time as
such documents shall be returned to the Servicer. In no event shall the
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 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.
Section 3.07. Custodian's Indemnification. The 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 Servicer as custodian of the Receivable Files; provided, however, that the
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 Servicer or the termination of this Agreement with respect to
acts or omissions of such Servicer preceding such resignation or removal and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant to
this Section and the 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 Servicer, without interest.
Section 3.08. Effective Period and Termination. The 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 Servicer or any successor Servicer shall
resign as Servicer in accordance with the provisions of this Agreement or if
all of the rights and obligations of the Servicer or any successor Servicer
shall have been terminated under Section 8.02, the appointment of such
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 Servicer under Section 8.02. The Indenture Trustee or, with the consent of
the Indenture Trustee, the Owner Trustee may terminate the Servicer's
appointment as custodian, with cause, at any time upon written notification to
the Servicer and without cause, only by written notification to the 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 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 Huntington as custodian, the Indenture Trustee and the Owner
Trustee agree that, upon any such termination and for so long as Huntington
remains the 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 Servicer for the purpose of enabling the Servicer to
perform its obligations under this Agreement with respect to the servicing of
the Receivables.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Duties of Servicer. The 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
Servicer under this Agreement. The Servicer shall service the Receivables in
accordance with its customary and usual procedures and consistent with the
procedures employed by institutions that service motor vehicle retail
installment sale contracts and motor vehicle installment loan notes. The
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 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 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 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
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 the unpaid balance of any Receivable from an Obligor. The
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 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 Servicer solely for purposes of commencing or participating
in such proceeding as a party or claimant, and the 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 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 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 Servicer furnish the Servicer
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
Section 4.02. Collection of Receivable Payments; Modifications of
Receivables.
(a) Consistent with the standards, policies and procedures required by
this Agreement, the Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of 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 Servicer, maximize the
amount to be received by the Trust with respect thereto. The 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 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 Distribution Date.
(c) Upon any extension not in accordance with this Section, the 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 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 Servicer shall have determined that eventual payment in full is unlikely.
The 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 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 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
Servicer in order to realize upon a Receivable; provided, however, that, in
any case in which the Financed Vehicle shall have suffered damage, the
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 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 Servicer shall, in
accordance with its customary servicing procedures, require that each Obligor
shall have obtained physical 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 Servicer shall, in accordance with its customary servicing
procedures, take such steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle.
The 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 Servicer hereby agrees that the designation of Huntington 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
Servicer hereby agree that, upon the occurrence of a 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 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 Servicer. By its execution and delivery of
this Agreement, the 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 Servicer shall do nothing to impair the rights of
the Trust in the property of the Trust;
(c) No Amendments. The 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 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
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 Huntington 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 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 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 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 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 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 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
Servicer on each Distribution 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 Servicer shall be required to pay all
expenses incurred by it in connection with its activities under this Agreement
(including taxes imposed on the Servicer and expenses incurred in connection
with distributions and reports made by the Servicer to the Owner Trustee and
the Indenture Trustee).
Section 4.09. Servicer's Certificate. Not later than 10:00 a.m. (New York
City time) on each Determination Date, the Servicer shall deliver to the Owner
Trustee, the Indenture Trustee and the Depositor, with a copy to each Rating
Agency and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., a Servicer's Certificate containing all
information necessary to make the distributions to be made on the related
Distribution Date pursuant to Section 5.06 for the related Collection Period
and any other information the Indenture Trustee may reasonably request. Such
Servicer's Certificate shall be certified by a Responsible Officer of the
Servicer that the information provided is complete and no defaults have
occurred. With respect to each Collection Period, Receivables to be purchased
by the 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 Servicer by account number with respect to such
Receivable (as specified in the applicable Schedule of Receivables).
Section 4.10. Annual Statement as to Compliance; Notice of Servicer
Termination Event.
(a) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency, within 120 days after the end of the
Servicer's fiscal year, an Officer's Certificate signed by a Responsible
Officer of the Servicer, stating that (i) a review of the activities of the
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
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 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 Servicer Termination Event
under Section 8.01.
Section 4.11. Annual Independent Accountants' Report. The Servicer shall
cause a firm of independent certified public accountants, which may also
render other services to the 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
Servicer, the Owner Trustee and the Indenture Trustee, to the effect that such
firm has audited the books and records of the 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
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 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 Servicer's Certificates were found; and
(iv) a review in accordance with agreed-upon procedures was made of the
Servicer's compliance with its servicing obligations in this Agreement,
including without limitation the obligations of the Servicer set forth in
Section 4.02(b) hereof, and, except as disclosed in the accountants' report,
no exceptions to such compliance were found.
Section 4.12. Access to Certain Documentation and Information Regarding
Receivables. The 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 Servicer's
normal business operations or employee or customer relations, and during the
normal business hours at the offices of the Servicer. Nothing in this Section
shall affect the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors and the failure
of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section.
Section 4.13. Term of Servicer. The Servicer hereby covenants and agrees
to act as Servicer under, and for the term of, this Agreement.
Section 4.14. Access to Information Regarding Trust and Basic Documents.
The 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 Servicer shall furnish to the
Owner Trustee copies of all documents and reports required to be provided by
the 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 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.
(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 Servicer; provided, however, that if the 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 Distribution 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 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 Distribution Date. Funds deposited in a Trust
Account on a day that immediately precedes a Distribution 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 Servicer, the Servicer shall deposit into the
Collection Account, no later than one (1) Business Day prior to the
Distribution 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 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 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 Servicer shall have the power, revocable by the Indenture
Trustee or by the Owner Trustee with the consent of the Indenture
Trustee, following a 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 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 Distribution Date
for so long as (i) Huntington is the Servicer, (ii) the Servicer has the
Minimum Required Rating, and (iii) no Servicer Termination Event shall have
occurred and be continuing. If (i) Huntington is no longer the Servicer, (ii)
Huntington no longer has the Minimum Required Rating, or (iii) a Servicer
Termination Event shall have occurred and be continuing, the 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
Huntington is the Servicer, Huntington may withhold from deposit into the
Collection Account any amounts indicated on the related Servicer's Certificate
as being due and payable to the Seller. For purposes of this Article V, the
phrase "payments by or on behalf of Obligors" shall mean payments made with
respect to the Receivables by Persons other than the Servicer or the Seller.
Section 5.03. Application of Collections.
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 Servicer's customary procedures.
Generally, subject to the foregoing sentence, the 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) Huntington is the
Servicer, (ii) Huntington has the Minimum Required Rating, and (iii) no
Servicer Termination Event shall have occurred and be continuing, the 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) Huntington no longer is the Servicer, (ii)
Huntington no longer has the Minimum Required Rating, or (iii) a Servicer
Termination Event shall have occurred and be continuing, the 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 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 Servicer shall calculate all amounts
required to be deposited pursuant to this Section and deliver a Servicer's
Certificate pursuant to Section 4.09.
(b) On each Distribution Date, the Servicer shall instruct the Indenture
Trustee in writing (based on the information contained in the 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 Distribution 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 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;
(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 Huntington.
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 Distribution Date, the Servicer shall instruct the Indenture
Trustee in writing (based on the information contained in the 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 Distribution 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;
(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 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 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 Distribution Date, the Servicer shall instruct the Indenture
Trustee in writing (based on the information contained in the 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 Distribution Date.
(c) In the event that, on any Distribution 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 Distribution 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 Huntington.
Section 5.08. Statements to Securityholders. On each Determination Date,
the Servicer shall provide to the Indenture Trustee (with a copy to each
Rating Agency, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 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 Distribution 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 Distribution 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
Distribution Date, after giving effect to payments allocated to principal
reported under clause (a) above;
(d) the amount of the Servicing Fee paid to the 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 Distribution
Date;
(f) the amount of the First Allocation of Principal, if any, for such
Distribution Date;
(g) the amount of the Second Allocation of Principal, if any, for such
Distribution 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;
(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
Distribution 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 Distribution 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 Distribution 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 Servicer granted an extension; and
(r) the Overcollateralization Target Amount for the next Distribution
Date.
Each amount set forth on the Distribution 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.
Section 5.09. Advances by the Servicer.
(a) By the close of business on the day required by Section 5.02 or
Section 5.04 hereof, as applicable, the Servicer shall deposit into the
Collection Account, out of its own funds, the related Advance.
(b) On each Distribution Date, the Servicer shall reimburse itself for
the Outstanding Amount Advanced to the extent of actual collections of late
scheduled payments.
(c) If the Servicer determines that any Advance made pursuant to Section
5.09 has become a Nonrecoverable Advance and at the time of such determination
there exists an Outstanding Amount Advanced, then the Servicer shall reimburse
itself out of funds in the Collection Account for the amount of such
Nonrecoverable Advance, but only to the extent of such Outstanding Amount
Advanced.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Representations of Depositor. The Depositor makes the
following representations to the Issuer, the 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 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 corporation in good standing under the laws of the State
of Delaware, with the corporate 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 corporation 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 corporate 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 corporate
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 corporate 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 certificate
of incorporation or bylaws of the Depositor, or any 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, 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. Corporate Existence. During the term of this Agreement, the
Depositor will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation 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. 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 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), (x) the Depositor shall have
delivered to the Owner Trustee, the Indenture Trustee and the 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 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 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 Servicer. The 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 Servicer is a national banking
association duly organized and validly existing as a banking institution under
the laws of the United States and continues to hold a valid certificate to do
business as such. The 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 Servicer and its
subsidiaries, considered as one enterprise. The 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 Servicer has obtained all necessary
licenses and approvals, in all jurisdictions where the failure to do so would
materially and adversely affect the Servicer's ability to acquire, own and
service the Receivables.
(c) Power and Authority. The 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 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
Servicer, enforceable against the 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 association
or bylaws of the Servicer, or any indenture, agreement, mortgage, deed of
trust or other instrument to which the 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 Servicer of any court or federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Servicer or any of its properties.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the Servicer's knowledge, threatened, against the Servicer before any
court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the 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 Servicer of its
obligations under, or the 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 Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer and the representations made by the Servicer under
this Agreement:
(a) The 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 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 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 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 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 Huntington (or any successor thereto pursuant to
Section 7.03) as Servicer pursuant to Section 8.02, or the resignation by such
Servicer pursuant to this Agreement, such Servicer shall be deemed to be the
Servicer pending appointment of a successor Servicer (other than the Indenture
Trustee) pursuant to Section 8.03.
Indemnification under this Section shall survive the resignation or
removal of the Servicer or the termination of this Agreement with respect to
acts of the Servicer prior thereto, and shall include reasonable fees and
expenses of counsel and reasonable expenses of litigation. If the 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
Servicer, without interest.
Section 7.03. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (i) into which the Servicer may be merged
or consolidated, (ii) resulting from any merger or consolidation to which the
Servicer shall be a party, (iii) that acquires by conveyance, transfer or
lease substantially all of the assets of the Servicer or (iv) succeeding to
the business of the Servicer, which Person shall execute an agreement of
assumption to perform every obligation of the Servicer under this Agreement,
shall be the successor to the 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 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 Servicer shall not merge or consolidate with any other Person
or permit any other Person to become a successor to the 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 Servicer Termination
Event shall have occurred, (ii) the 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 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 Servicer and Others.
(a) Neither the 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 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 Servicer and any director, officer, employee or agent of the
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 Servicer and
Indenture Trustee. The 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 Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; provided, however, that 10 days' prior notice of such
appointment shall have been given to each Rating Agency and each Rating Agency
shall have notified the Servicer, the Owner Trustee and the Indenture Trustee
in writing that such appointment satisfies the Rating Agency Condition; and
provided further, however, that the 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 Servicer alone were servicing and
administering the Receivables. The fees and expenses of any subservicer shall
be as agreed between the 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. Servicer Not to Resign.
(a) Subject to the provisions of Section 7.03, the Servicer shall not
resign from the obligations and duties imposed on it by this Agreement as
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 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 Servicer to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No resignation of the
Servicer shall become effective until a successor Servicer acceptable to the
Controlling Party shall have assumed the responsibilities and obligations of
the Servicer in accordance with Section 8.03. If no 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. Servicer Termination Events. For purposes of this
Agreement, the occurrence and continuance of any of the following shall
constitute a "Servicer Termination Event":
(a) any failure by the Servicer to deposit into the Collection Account
any proceeds or payment required to be so delivered under the terms of this
Agreement that continues unremedied for a period of five Business Days after
written notice is received by the Servicer or after discovery of such failure
by a Responsible Officer of the Servicer;
(b) failure by the Servicer to deliver to the Owner Trustee, the
Indenture Trustee and the Seller the Servicer's Certificate by the applicable
Determination Date, or to observe any covenant or agreement set forth in
Section 4.06, which failure (i) materially and adversely affects the rights of
the Securityholders and (ii) continues unremedied for a period of thirty days
after knowledge thereof by the Servicer or after the date on which written
notice of such failure requiring the same to be remedied shall have been given
to the Servicer by any of the Owner Trustee, the Indenture Trustee or
Noteholders evidencing not less than 25% of the Outstanding Amount of the
Notes;
(c) failure on the part of the Servicer duly to observe or perform any
other covenants or agreements of the 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 60 days after
discovery of such failure by a Responsible Officer of the Servicer or after
the date on which written notice of such failure requiring the same to be
remedied shall have been given to the 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
(d) the occurrence of an Insolvency Event with respect to the Servicer.
Section 8.02. Consequences of a Servicer Termination Event. If a Servicer
Termination Event shall occur, the Indenture Trustee may, and at the direction
of 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,
shall terminate all of the rights and obligations of the Servicer under this
Agreement by notice in writing to the Servicer. On or after the receipt by the
Servicer of such written notice, all authority, power, obligations and
responsibilities of the Servicer under this Agreement automatically shall pass
to, be vested in and become obligations and responsibilities of the successor
Servicer appointed by the Controlling Party; provided, however, that such
successor Servicer shall have no liability with respect to any obligation that
was required to be performed by the terminated Servicer prior to the date that
such successor Servicer becomes the Servicer or any claim of a third party
based on any alleged action or inaction of the terminated Servicer. The
successor Servicer is authorized and empowered by this Agreement to execute
and deliver, on behalf of the terminated 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 Servicer agrees to cooperate with the successor
Servicer in effecting the termination of the responsibilities and rights of
the terminated Servicer under this Agreement, including the transfer to the
successor Servicer for administration by it of all money and property held by
the Servicer with respect to the Receivables and other records relating to the
Receivables, including any portion of the Receivables File held by the
Servicer and a computer tape in readable form as of the most recent Business
Day containing all information necessary to enable the successor Servicer to
service the Receivables. The terminated Servicer shall also provide the
successor Servicer access to Servicer personnel and computer records in order
to facilitate the orderly and efficient transfer of servicing duties.
Section 8.03. Appointment of Successor Servicer.
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 8.02 or upon the resignation of the Servicer pursuant to
Section 7.06, the Indenture Trustee shall be the successor in all respects to
the Servicer in its capacity as Servicer under this Agreement and shall be
subject to all the rights, responsibilities, restrictions, duties, liabilities
and termination provisions relating to the Servicer under this Agreement,
except as otherwise stated herein. The Depositor, the Owner Trustee, the
Indenture Trustee and such successor Servicer shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. If a successor Servicer is acting as Servicer hereunder, it shall
be subject to termination under Section 8.02 upon the occurrence of any
Servicer Termination Event after its appointment as successor Servicer.
(b) On and after the time the Servicer receives a notice of termination
pursuant to Section 8.02 or upon the resignation of the Servicer pursuant to
Section 7.06, or if the Indenture Trustee is legally unable or unwilling to
act as Servicer, the Controlling Party may exercise at any time its right to
appoint a successor to the Servicer, and shall have no liability to the Owner
Trustee, the Indenture Trustee, the 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
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 Servicer as the successor to
the Servicer. Pending appointment pursuant to the preceding sentence, the
Indenture Trustee shall act as successor Servicer unless it is legally unable
to do so, in which event the outgoing Servicer shall continue to act as
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 Servicer or such other party entitled thereto all
reasonably incurred Servicer transition costs.
(c) Upon appointment, the successor Servicer shall be the successor in
all respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Servicer, and shall be entitled to the Servicing Fee
and all the rights granted to the predecessor Servicer by the terms and
provisions of this Agreement.
Section 8.04. Notification to Securityholders. Upon any termination of,
or appointment of a successor to, the 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 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 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 5% of the Original Pool Balance, the Servicer shall have the
option to purchase the Receivables. To exercise such option, the Servicer
shall deposit to the Collection Account pursuant to Section 5.04 an amount
equal to 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 Servicer to the Owner Trustee
and the Indenture Trustee as soon as practicable after the 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 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 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 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.
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 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 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.
(b) Neither the Depositor nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section
9-402(7) of the UCC, unless it shall have given the Owner Trustee 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 Depositor and the Servicer shall have an obligation to
give the Owner Trustee and the Indenture Trustee at least five Business Days'
prior written notice of any relocation of its principal executive office if,
as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement, and shall promptly
file any such amendment or new financing statement. The Servicer shall at all
times maintain each office from which it shall service Receivables, and its
principal executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of 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 Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the Servicer's
master computer 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 held by
the Indenture Trustee for Huntington Auto Trust 2000-A. Indication of such
Receivable's inclusion in the portfolio shall be deleted from or modified on
the 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 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 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 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 Servicer's normal operations or customer or
employee relations, to inspect, audit and make copies of and abstracts from
the Servicer's records regarding any Receivable.
(h) Upon request, the 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 Servicer's Certificates furnished prior to such request indicating
removal of Receivables from the Trust.
The 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.
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 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 ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: SSB Vehicle Securities Inc.;
(b) in the case of the Servicer, Administrator and Custodian, to Huntington,
Huntington Center, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel, (c) in the case of The Chase Manhattan Bank, to ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Capital Markets Fiduciary
Services, Attention: Huntington Auto Trust 2000-A; (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 Moody's, to ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring Department, and
(g) in the case of Standard & Poor's, to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department; 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 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 Servicer, this Agreement may not
be assigned by the Depositor or the Servicer.
Section 10.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Depositor, the Servicer, the
Seller, 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, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER 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 Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company 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 The Chase Manhattan Bank, not in its individual
capacity but solely as Indenture Trustee, and in no event shall The Chase
Manhattan Bank 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.
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.
HUNTINGTON AUTO TRUST 2000-A
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title Vice President
SSB VEHICLE SECURITIES INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title Assistant Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Executive Vice President
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Assistant Vice President
SCHEDULE A
[RESERVED]
SCHEDULE B
Final Schedule of Receivables
-----------------------------
[On file with the Indenture Trustee.]
SCHEDULE C
Location of Receivable Files
----------------------------
The Huntington National Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
EXHIBIT A
Representations and Warranties of the Seller
--------------------------------------------
Under Section 3.02 of the Receivables Purchase Agreement
--------------------------------------------------------
EXHIBIT B
Form of Distribution Date Statement to Securityholders
The Huntington National Bank
Huntington Auto Trust 2000-A Distribution Date Statement to Securityholders
Principal Distribution Amount
---------------------------------------------------------------------------------------------
Class A-1 Notes: ($ per $1,000 original principal balance)
Class A-2 Notes: ($ per $1,000 original principal balance)
Class A-3 Notes: ($ per $1,000 original principal balance)
Class A-4 Notes: ($ per $1,000 original principal balance)
Class B Notes: ($ per $1,000 original principal balance)
Interest Distribution Amount
---------------------------------------------------------------------------------------------
Class A-1 Notes: ($ per $1,000 original principal balance)
Class A-2 Notes: ($ per $1,000 original principal balance)
Class A-3 Notes: ($ per $1,000 original principal balance)
Class A-4 Notes: ($ per $1,000 original principal balance)
Class B Notes: ($ per $1,000 original principal balance)
Principal Distribution Amount
Principal Per $1,000 Certificate
Interest Distribution Amount
Interest Per $1,000 Certificate
Regular Principal Allocation
First Allocation of Principal
Second Allocation of Principal
Class A-1 Interest Carryover Shortfall
Class A-2 Interest Carryover Shortfall
Class A-3 Interest Carryover Shortfall
Class A-4 Interest Carryover Shortfall
Class B Interest Carryover Shortfall
Class C Certificateholders' Interest Carryover Shortfall
Distribution Date Payment Shortfall
Reserve Account Withdrawal Shortfall
Note Balance:
Class A-1 Notes:
Class A-2 Notes:
Class A-3 Notes:
Class A-4 Notes:
Class B Notes:
Note Pool Factor:
Class A-1 Notes:
Class A-2 Notes:
Class A-3 Notes:
Class A-4 Notes:
Class B Notes:
Class C Certificate Balance
Class C Certificate Pool Factor
Servicing Fee
Owner Trustee Fee
Indenture Trustee Fee
Pool Balance
Realized Losses
Repossessed Receivables
Liquidated Receivables or Purchased Receivables
Receivables granted extensions or deferments
Purchase Amounts
Reserve Account Balance
Amount Deposited to Reserve Account
Principal Balance of Receivables that were delinquent:
30 to 59 days
60 to 89 days
90 days or more
Amount Withdrawn from Reserve Account
Overcollateralization Target Amount for next Distribution Date
Mandatory Redemption Amount
Class A-1 Notes
Class A-2 Notes
Class A-3 Notes
Class A-4 Notes
Class B Notes
EXHIBIT C
FORM OF SERVICER'S CERTIFICATE
------------------------------
[Available from Servicer]
EXHIBIT D-1
EXTENSION POLICY
[As described in the Prospectus Supplement
under the caption "HUNTINGTON'S AUTOMOBILE
FINANCING PROGRAMS -- Extension Policy".]
EXHIBIT D-2
FORM OF DEALER AGREEMENT
[On file with the Trustee.]
EXHIBIT D-3
FORM OF ASSIGNMENT
[On file with the Trustee.]