Exhibit 4.2
FORM OF POOLING AND SERVICING AGREEMENT
[NATIONAL CITY VEHICLE RECEIVABLES INC.]
[as Depositor]
NATIONAL CITY BANK
as Seller and Servicer
and
[--------------------------]
as Trustee
Dated as of [__________________________]
NATIONAL CITY AUTO RECEIVABLES TRUST 200__-__
[___]% Asset Backed Certificates, Class [A]
[___]% Asset Backed Certificates, Class [B]
TABLE OF CONTENTS
PAGE
ARTICLE I.
Definitions
Section 1.01 Definitions.........................................................................................1
Section 1.02 Other Definitional Provisions......................................................................14
ARTICLE II.
Establishment of Trust
Section 2.01 Creation of Trust..................................................................................14
Section 2.02 Acceptance by Trustee..............................................................................14
Section 2.03 Conveyance of Receivables..........................................................................15
ARTICLE III.
The Receivables
Section 3.01 Representations and Warranties of the Seller.......................................................15
Section 3.02 Representations and Warranties of the Depositor....................................................16
Section 3.03 Repurchase Upon Breach.............................................................................16
Section 3.04 Custody of Receivable Files........................................................................17
Section 3.05 Duties of Servicer as Custodian....................................................................17
Section 3.06 Instructions; Authority to Act.....................................................................18
Section 3.07 Custodian's Indemnification........................................................................18
Section 3.08 Effective Period and Termination...................................................................18
ARTICLE IV.
Administration and Servicing of Receivables
Section 4.01 Duties of Servicer.................................................................................19
Section 4.02 Collection and Allocation of Receivable Payments...................................................19
Section 4.03 Realization Upon Receivables.......................................................................20
Section 4.04 Physical Damage Insurance..........................................................................20
Section 4.05 Maintenance of Security Interests in Financed Assets...............................................20
Section 4.06 Covenants of Servicer..............................................................................20
Section 4.07 Purchase of Receivables Upon Breach................................................................20
Section 4.08 Servicing Fee......................................................................................21
Section 4.09 Servicer's Certificate.............................................................................21
Section 4.10 Annual Statement as to Compliance; Notice of Default...............................................21
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Section 4.11 Annual Independent Certified Public Accountant's Report............................................21
Section 4.12 Access to Certain Documentation and Information Regarding Receivables..............................22
Section 4.13 Servicer Expenses..................................................................................22
Section 4.14 Appointment of Subservicer.........................................................................22
ARTICLE V.
Distributions; Reserve Account; Statements to Certificateholders
Section 5.01 Establishment of Trust Accounts....................................................................23
Section 5.02 Collections........................................................................................24
Section 5.03 Application of Collections.........................................................................24
Section 5.04 Advances...........................................................................................25
Section 5.05 Additional Deposits................................................................................25
Section 5.06 Distributions......................................................................................26
Section 5.07 Reserve Account....................................................................................28
Section 5.08 Statements to Certificateholders...................................................................31
Section 5.09 Tax Returns........................................................................................32
Section 5.10 Net Deposits.......................................................................................33
ARTICLE VI.
The Certificates
Section 6.01 The Certificates...................................................................................33
Section 6.02 Authentication of Certificates.....................................................................33
Section 6.03 Registration of Transfer and Exchange of Certificates..............................................33
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates..................................................34
Section 6.05 Persons Deemed Owners..............................................................................34
Section 6.06 Access to List of Certificateholders' Names and Addresses..........................................34
Section 6.07 Maintenance of Office or Agency....................................................................35
Section 6.08 Book-Entry Certificates............................................................................35
Section 6.09 Notices to Clearing Agency.........................................................................36
Section 6.10 Definitive Certificates............................................................................36
ARTICLE VII.
The Depositor
Section 7.01 Representations of Depositor.......................................................................36
Section 7.02 Corporate Existence................................................................................38
Section 7.03 Liabilities of Depositor; Indemnities..............................................................38
Section 7.04 Merger or Consolidation of, or Assumption of the Obligations of, Depositor.........................38
Section 7.05 Limitation on Liability of Depositor and Others....................................................39
Section 7.06 Depositor May Own Certificates.....................................................................39
Section 7.07 No Transfer of Excess Amounts......................................................................39
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ARTICLE VIII.
The Servicer
Section 8.01 Representations of Servicer........................................................................40
Section 8.02 Indemnities of Servicer............................................................................41
Section 8.03 Merger or Consolidation of, or Assumption of the Obligations of, Servicer..........................41
Section 8.04 Limitation on Liability of Servicer and Others.....................................................42
ARTICLE IX.
Default
Section 9.01 Events of Default..................................................................................42
Section 9.02 Appointment of Successor...........................................................................43
Section 9.03 Repayment of Advances..............................................................................44
Section 9.04 Notification to Certificateholders.................................................................44
Section 9.05 Waiver of Past Defaults............................................................................44
ARTICLE X.
The Trustee
Section 10.01 Duties of Trustee.................................................................................44
Section 10.02 Certain Matters Affecting Trustee.................................................................45
Section 10.03 Trustee Not Liable for Certificates or Receivables................................................46
Section 10.04 Trustee May Own Certificates......................................................................47
Section 10.05 Trustee's Fees and Expenses.......................................................................47
Section 10.06 Eligibility Requirements for Trustee..............................................................47
Section 10.07 Resignation or Removal of Trustee.................................................................47
Section 10.08 Successor Trustee.................................................................................48
Section 10.09 Merger or Consolidation of Trustee................................................................48
Section 10.10 Appointment of Co-Trustee or Separate Trustee.....................................................48
Section 10.11 Representations and Warranties of Trustee.........................................................50
Section 10.12 No Bankruptcy Petition............................................................................50
Section 10.13 Trustee's Certificate.............................................................................50
Section 10.14 Trustee's Assignment of Repurchased Receivables...................................................50
ARTICLE XI.
Termination
Section 11.01 Termination of the Trust..........................................................................51
Section 11.02 Optional Purchase of All Receivables..............................................................51
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ARTICLE XII.
Miscellaneous Provisions
Section 12.01 Amendment.........................................................................................52
Section 12.02 Protection of Title to Trust......................................................................53
Section 12.03 Separate Counterparts.............................................................................54
Section 12.04 Limitation on Rights of Certificateholders........................................................54
Section 12.05 Governing Law.....................................................................................55
Section 12.06 Notices...........................................................................................55
Section 12.07 Severability of Provisions........................................................................55
Section 12.08 Assignment........................................................................................55
Section 12.09 Certificates Nonassessable and Fully Paid.........................................................55
Section 12.10 Limitations on Rights of Others...................................................................55
Section 12.11 Headings..........................................................................................56
Section 12.12 Nonpetition Covenants.............................................................................56
Exhibit A Form of Class [A] Certificate
Exhibit B Form of Class [B] Certificate
Exhibit C Form of Depository Agreement
Exhibit D Form of Servicer's Certificate
SCHEDULE A Schedule of Receivables
SCHEDULE B Location of Receivable Files
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POOLING AND SERVICING AGREEMENT dated as of [_______________],
among NATIONAL CITY VEHICLE RECEIVABLES INC., a Delaware corporation, as
depositor (the "Depositor"), NATIONAL CITY BANK, a national banking association,
as servicer (the "Servicer"), and [TRUSTEE], a [_____] banking corporation, as
Trustee (the "Trustee").
WHEREAS, the Depositor has purchased a portfolio of
receivables arising in connection with a pool of [retail installment sales
contracts, retail installment loans, purchase money notes or other notes], (the
"Contracts") secured by [new and used automobiles, light-duty trucks,
motorcycles, recreational vehicles, vans, minivans and/or sport utility
vehicles] financed by those Contracts and originated or acquired by the Seller
in the ordinary course of their respective businesses; and
WHEREAS, the Depositor, the Servicer and the Trustee wish to
set forth the terms and conditions pursuant to which the Trust (as hereinafter
defined) will acquire the Contracts from the Depositor, and the Servicer will
service the Contracts on behalf of the Trust;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the Depositor, the Servicer and the
Trustee 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 either a Precomputed Advance or a Simple
Interest Advance or both, as applicable.
"AGREEMENT" means this Pooling and Servicing Agreement.
"AMOUNT FINANCED" means with respect to a Receivable, the
amount advanced under such Receivable toward the purchase price of the Financed
Asset and any related costs, exclusive of any amount allocable to the premium of
force-placed physical damage insurance covering the Financed Asset.
"ANNUAL PERCENTAGE RATE" or "APR" of a Receivable means the
annual rate of finance charges stated in the related Contract.
"BOOK-ENTRY CERTIFICATES" means, unless otherwise specified in
this Agreement, a beneficial interest in the Class [A] or Class [B]
Certificates, ownership and transfers of which shall be registered through book
entries by a Clearing Agency as described in Section 6.08.
"BUSINESS DAY" means any day other than a Saturday, a Sunday
or a day on which banking institutions or trust companies in Portland, Oregon or
the city in which the Corporate Trust Office is located, are authorized or
obligated by law, regulation or executive order to be closed.
"CERTIFICATE BALANCE" means, as of any date, the aggregate
outstanding principal amount of the Certificates at such date.
"CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as reflected on the books of the Clearing Agency or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the
register maintained and the registrar appointed pursuant to Section 6.03.
"CERTIFICATEHOLDER" or "HOLDER" means a Person in whose name a
Certificate is registered in the Certificate Register.
"CLASS [A] CERTIFICATE" means a [___]% Asset Backed
Certificate, Class [A], evidencing a beneficial interest in the Trust,
substantially in the form of Exhibit A hereto.
"CLASS [A] CERTIFICATE BALANCE" means, as of any date of
determination, the Initial Class [A] Certificate Balance reduced by all amounts
previously distributed to Holders of Class [A] Certificates and allocable to
principal.
"CLASS [A] DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of the Class [A] Principal Distributable Amount and
the Class [A] Interest Distributable Amount for such date.
"CLASS [A] INTEREST CARRYOVER SHORTFALL" means, with respect
to any Distribution Date, the excess of the sum of the Class [A] Monthly
Interest Distributable Amount for the preceding Distribution Date and any
outstanding Class [A] Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that Holders of the
Class [A] Certificates actually received on such preceding Distribution Date,
plus 30 days' interest on such excess, to the extent permitted by law, at the
Class [A] Pass-Through Rate.
"CLASS [A] INTEREST DISTRIBUTABLE AMOUNT" means, with respect
to any Distribution Date, 30 days of interest at the Class [A] Pass-Through Rate
on the Class [A] Certificate Balance on the last day of the preceding Collection
Period.
"CLASS [A] PASS-THROUGH RATE" means [_____]% per annum.
"CLASS [A] PERCENTAGE" means [_____]%.
"CLASS [A] POOL FACTOR" means, as of the close of business on
the last day of any Collection Period, a seven-digit decimal figure equal to the
Class [A] Certificate Balance as of such Record Date divided by the Initial
Class [A] Certificate Balance.
"CLASS [A] PRINCIPAL CARRYOVER SHORTFALL" means, as of the
close of any Distribution Date, the excess of the Class [A] Monthly Principal
Distributable Amount and any outstanding Class [A] Principal Carryover Shortfall
from the preceding Distribution Date, over
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the amount in respect of principal that is actually distributed to Holders of
the Class [A] Certificates on such current Distribution Date.
"CLASS [A] PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect
to any Distribution Date, the Class [A] Percentage of the Principal Distribution
Amount. In addition, on the Final Scheduled Distribution Date, the principal
required to be included in the Class [A] Principal Distributable Amount will
include the lesser of (a) the Class [A] Percentage of (i) any Scheduled Payments
of principal due and remaining unpaid on each Precomputed Receivable and (ii)
any principal due and remaining unpaid on each Simple Interest Receivable, in
each case, in the Trust as of the Final Scheduled Maturity Date or (b) the
amount that is necessary (after giving effect to the other amounts to be
deposited in the Distribution Account on such Distribution Date and allocable to
principal) to reduce the Class [A] Certificate Balance to zero.
"CLASS [B] CERTIFICATE" means a [___]% Asset Backed
Certificate, Class [B], evidencing a beneficial interest in the Trust,
substantially in the form of Exhibit B hereto.
"CLASS [B] CERTIFICATE BALANCE" means, as of any date of
determination, the Initial Class [B] Certificate Balance reduced by all amounts
previously distributed to Holders of Class [B] Certificates (or deposited in the
Reserve Account, exclusive of the Reserve Account Initial Deposit) and allocable
to principal and by Realized Losses to the extent of the amount of such Realized
Losses paid from the Class [B] Percentage of the Principal Distribution Amount.
"CLASS [B] DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of the Class [B] Principal Distributable Amount and
the Class [B] Interest Distributable Amount.
"CLASS [B] INTEREST CARRYOVER SHORTFALL" means, with respect
to any Distribution Date, the excess of the sum of the Class [B] Interest
Distributable Amount for the preceding Distribution Date and any outstanding
Class [B] Interest Carryover Shortfall on such preceding Distribution Date, over
the amount in respect of interest that Holders of the Class [B] Certificates
actually received on such preceding Distribution Date, plus 30 days' interest on
such excess, to the extent permitted by law, at the Class [B] Pass-Through Rate.
"CLASS [B] 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. Unless otherwise specified in
this Agreement, interest with respect to the Class [B] Certificates shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
"CLASS [B] MONTHLY INTEREST DISTRIBUTABLE AMOUNT" means, with
respect to any Distribution Date, 30 days of interest at the Class [B]
Pass-Through Rate on the Class [B] Certificate Balance on the last day of the
preceding Collection Period.
"CLASS [B] PASS-THROUGH RATE" means [___]% per annum.
"CLASS [B] PERCENTAGE" means [___]%.
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"CLASS [B] POOL FACTOR" means, as of the close of business on
the last day of any Collection Period, a seven-digit decimal figure equal to the
Class [B] Certificate Balance as of such Record Date divided by the Initial
Class [B] Certificate Balance.
"CLASS [B] PRINCIPAL CARRYOVER SHORTFALL" means, as of the
close of any Distribution Date, the excess of the Class [B] Monthly Principal
Distributable Amount and any outstanding Class [B] Principal Carryover Shortfall
from the preceding Distribution Date, over the amount in respect of principal
that is actually distributed to Holders of the Class [B] Certificates on such
current Distribution Date.
"CLASS [B] PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect
to any Distribution Date, the Class [B] Percentage of the Principal Distribution
Amount. In addition, on the Final Scheduled Distribution Date, the principal
required to be included in the Class [B] Principal Distributable Amount will
include the lesser of (a) the Class [B] Percentage of (i) any Scheduled Payments
of principal due and remaining unpaid on each Precomputed Receivable and (ii)
any principal due and remaining unpaid on each Simple Interest Receivable, in
each case, in the Trust as of the Final Scheduled Maturity Date or (b) the
amount that is necessary (after giving effect to the other amounts to be
deposited in the Distribution Account on such Distribution Date and allocable to
principal) to reduce the Class [B] Certificate Balance to zero.
"CLEARING AGENCY" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"CLOSING DATE" means [______________________].
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLECTION ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.01(a)(i).
"COLLECTION PERIOD" means a calendar month (or in the case of
the first Distribution Date, the period from and including the Cutoff Date to
and including the last day of the calendar month in which the Closing Date
occurs). 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: (1) all
applications of collections, (2) all current and previous Payaheads, (3) all
applications of Payahead Balances, (4) all Advances and reductions of Advances
and (5) all distributions to be made on the following Distribution Date.
"CONTRACT" means a [retail installment sales contract, retail
installment loan, purchase money note or other note].
"CORPORATE TRUST OFFICE" shall have the meaning set forth in
the Indenture.
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"CUTOFF DATE" means, with respect to any Receivable, the date
as of which collections on such Receivable will be included in a Trust or the
related Trust Account pursuant to the related Agreement.
"DEALER" means the dealer who sold a Financed Asset to an
Obligor and who originated and assigned the related Receivable to an Originator.
"DEFINITIVE CERTIFICATES" shall have the meaning specified in
Section 6.10.
"DELIVERY" when 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 Trustee or its nominee
or custodian by physical delivery to the Trustee or its nominee or custodian
endorsed to, or registered in the name of, the Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a certificated security (as
defined in Section 8-102(4) of the UCC) transfer thereof (i) by delivery of such
certificated security endorsed to, or registered in the name of, the Trustee or
its nominee or custodian or endorsed in blank to a securities intermediary (as
defined in Section 8-102(14) of the UCC) and the making by such securities
intermediary of entries on its books and records identifying such certificated
securities as belonging to the Trustee or its nominee or custodian and the
sending by such securities intermediary of a confirmation of the purchase of
such certificated security by the Trustee or its nominee or custodian, or (ii)
by delivery thereof to a "clearing corporation" (as defined in Section 8-102(5)
of the UCC) and the making by such clearing corporation of appropriate entries
on its books reducing the appropriate securities account of the transferor and
increasing the appropriate securities account of a securities intermediary by
the amount of such certificated security, the identification by the clearing
corporation of the certificated securities for the sole and exclusive account of
the securities intermediary, the maintenance of such certificated securities by
such clearing corporation or its nominee, subject to the clearing corporation's
exclusive control, the sending of a confirmation by the securities intermediary
of the purchase by the Trustee or its nominee or custodian of such securities
and the making by such securities intermediary of entries on its books and
records identifying such certificated securities as belonging to the Trustee or
its nominee or custodian (all of the foregoing, "Physical Property"), and, in
any event, any such Physical Property in registered form shall be in the name of
the Trustee or its nominee or custodian; and such additional or alternative
procedures as may hereafter become appropriate to effect the complete transfer
of ownership of any such Trust Account Property to the Trustee or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that are book-entry securities 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
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and issuance by such securities intermediary of a deposit advice or other
written confirmation of such book-entry registration to the Trustee or its
nominee or custodian of the purchase by the Trustee or its nominee or custodian
of such book-entry securities; the identification by the Federal Reserve Bank of
such book-entry securities on its record being credited to the securities
intermediary's participant's securities account; the making by such securities
intermediary of entries in its books and records identifying such book-entry
security held through the Federal Reserve System pursuant to federal book-entry
regulations as being credited to the Trustee's securities account or custodian's
securities account and indicating that such custodian holds such Trust Account
Property solely as agent for the Trustee or its nominee or custodian; and such
additional or alternative procedures as may hereafter become appropriate to
effect complete transfer of ownership of any such Trust Account Property to the
Trustee or its nominee or custodian, consistent with changes in applicable law
or regulations or the interpretation thereof; and
(c) with respect to any item of Trust Account Property that is
an uncertificated security under Section 8-102(18) 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 securities intermediary, the sending of a
confirmation by the securities intermediary of the purchase by the Trustee or
its nominee or custodian of such uncertificated security, the making by such
securities intermediary of entries on its books and records identifying such
uncertificated certificates as belonging to the Trustee or its nominee or
custodian.
"DEPOSITOR" means [National City Vehicle Receivables Inc., a
Delaware corporation] [the Seller], and its successors in interest to the extent
permitted hereunder.
"DEPOSITORY AGREEMENT" means the agreement dated
[_____________], among the Trustee and The Depository Trust Company, as the
initial Clearing Agency, substantially in the form attached as Exhibit C hereto.
"DETERMINATION DATE" means, unless otherwise specified in this
Agreement, the [______] Business Day of each calendar month.
"DISTRIBUTION ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.01(a)(iii).
"DISTRIBUTION DATE" means, with respect to each Collection
Period, the [_______] day of the following calendar month or, if such day is not
a Business Day, the immediately following Business Day, commencing on
[_________________].
"ELIGIBLE DEPOSIT ACCOUNT" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States of America or any one of the states thereof or the District
of Colombia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as 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.
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"ELIGIBLE INSTITUTION" means (a) the corporate trust
department of the Trustee or any other entity specified in this Agreement or (b)
a depository institution organized under the laws of the United States of
America or any one of the states thereof or the District of Columbia (or any
domestic branch of a foreign bank), which (i) has either (A) a long-term
unsecured debt rating of [AAA] or better by [RATING AGENCY] and [A1] or better
by [RATING AGENCY] or (B) a certificate of deposit rating of [A-1+] by [RATING
AGENCY] and [P-1] or better by [RATING AGENCY] or any other long-term,
short-term or certificate of deposit rating acceptable to the Rating Agencies
and (ii) whose deposits are insured by the FDIC. If so qualified, the Trustee or
any such other entity specified in this Agreement may be considered an Eligible
Institution for the purposes of clause (b) of this definition.
"ELIGIBLE INVESTMENTS" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (of 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 of the Rating Agencies in the highest applicable rating category
granted thereby;
(c) commercial paper, variable amount notes or other short
term debt obligations, having, at the time of the investment or contractual
commitment to invest therein, a rating from each of the Rating Agencies in the
highest applicable rating category granted thereby;
(d) investments in money market or common trust funds having a
rating from each of the Rating Agencies in the highest applicable rating
category granted thereby (including funds for which the Trustee or any of its
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 (b);
(g) any other investment with respect to which the Trustee or
the Servicer has received written notification from the Rating Agencies that the
acquisition of such investment as
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an Eligible Investment will not result in a withdrawal or downgrading of the
ratings of the Certificates.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"EVENT OF DEFAULT" means an event specified in Section 9.01.
"FDIC" means the Federal Deposit Insurance Corporation.
"FINAL SCHEDULED DISTRIBUTION DATE" means
[______________________].
"FINAL SCHEDULED MATURITY DATE" means
[______________________].
"FINANCED ASSET" means a new and used automobile, light-duty
truck, motorcycle, recreational vehicle, van, minivan or sport utility vehicle,
together with all accessions thereto, securing an Obligor's indebtedness under
the related Contract.
"INITIAL CERTIFICATE BALANCE" means $[______________________].
"INITIAL CLASS [A] BALANCE" means $[______________________].
"INITIAL CLASS [B] BALANCE" means $[______________________].
"INITIAL COLLECTION PERIOD" means the period beginning on, and
including, [_______________] to and including [________________].
"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 or 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 DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, the sum of the following amounts in respect of the
Receivables and the preceding Collection Period: (i) that portion of all
collections on Receivables (including Payaheads that have become due during such
Collection Period) allocable to interest, (ii) Liquidation Proceeds with respect
to the Receivables to the extent allocable to interest due thereon in accordance
with the Servicer's
8
customary servicing procedures; (iii) all Advances made by the Servicer of
interest due on Receivables, (iv) the Purchase Amount of each Receivable that
became a Purchased Receivable during the related Collection Period to the extent
attributable to accrued interest on such Receivable and (v) Recoveries for such
Collection Period; provided, however, that in calculating the Interest
Distribution Amount the following will be excluded: (i) amounts received on
Precomputed Receivables to the extent that the Servicer has previously made an
unreimbursed Precomputed Advance of interest; (ii) Liquidation Proceeds with
respect to a particular Precomputed Receivable to the extent of any unreimbursed
Precomputed Advances of interest; (iii) 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; (v) the sum for all Simple Interest Receivables of collections on each
such Simple Interest Receivable received during the preceding Collection Period
in excess of the amount of interest that would be due on the aggregate Principal
Balance of the Simple Interest Receivables during such Collection Period at
their respective APRs if a payment were received on each Simple Interest
Receivable during such Collection Period on the date payment is due under the
terms of the related Contract; (vi) Liquidation Proceeds with respect to a
Simple Interest Receivable attributable to accrued and unpaid interest thereon
(but not including interest for the then current Collection Period) but only to
the extent of any unreimbursed Simple Interest Advances; and (vii) amounts
released from the Pre-Funding Account.
"INVESTMENT EARNINGS" means, with respect to any Distribution
Date, the investment earnings (net of losses and investment expenses) on amounts
on deposit in the Trust Accounts to be deposited to the Distribution Account on
such Distribution Date pursuant to Section 5.01(b).
"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 or Financed Asset, as
applicable, by operation of law as a result of any act or omission by the
related Obligor.
"LIQUIDATED RECEIVABLE" means any Receivable liquidated by the
Servicer through sale of a Financed Asset or otherwise.
"LIQUIDATION PROCEEDS" means, with respect to a Liquidated
Receivable, the monies collected in respect thereof, from whatever source,
during the Collection Period in which such Receivable became a Liquidated
Receivable, net of the sum of any amounts expended by the Servicer in connection
with such liquidation, plus any amounts required by law to be remitted to the
Obligor.
"OBLIGOR" on a Receivable means the purchaser or co-purchasers
of the Financed Asset and any other Person who owes payments under the
Receivable.
"OFFICERS' CERTIFICATE" means a certificate signed by the (a)
chairman of the board, the president, any executive vice president or any vice
president and (b) any treasurer, assistant treasurer, secretary or assistant
secretary of the Depositor or the Servicer, as appropriate.
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"OPINION OF COUNSEL" means one or more written opinions of
counsel, who may be an employee of or counsel to the Depositor or the Servicer,
which counsel shall be acceptable to the Trustee or Rating Agencies, as
applicable.
"ORIGINAL POOL BALANCE" means the sum, as of any date, of the
Pool Balance as of the Cutoff Date.
"ORIGINATOR" means [____________________________] which
purchased a Contract from a Dealer and sold such Contract to the Seller.
"OUTSTANDING PRECOMPUTED ADVANCES" on the Precomputed
Receivables means the sum, as of the close of business on the last day of a
Collection Period, of all Precomputed Advances, reduced as provided by Section
5.04(a).
"OUTSTANDING SIMPLE INTEREST ADVANCES" on the Simple Interest
Receivables means the sum, as of the close of business on the last day of a
Collection Period, of all Simple Interest Advances, reduced as provided in
Section 5.04(b).
"PAYAHEAD" on a Receivable that is a Precomputed Receivable
means the amount, as of the close of business on the last day of a Collection
Period, computed in accordance with Section 5.03 with respect to such
Receivable.
"PAYAHEAD ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.01(c)(i).
"PAYAHEAD BALANCE" on a Precomputed Receivable means the sum,
as of the close of business on the last day of a Collection Period, of all
Payaheads made by or on behalf of the Obligor with respect to such Precomputed
Receivable, as reduced by applications of previous Payaheads with respect to
such Precomputed Receivable, pursuant to Sections 5.03 and 5.04.
"PERSON" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"PHYSICAL PROPERTY" has the meaning assigned to such term in
the definition of "Delivery" above.
"POOL BALANCE" means, as of the close of business on the last
day of a Collection Period, the aggregate Principal Balance of the Receivables
as of such date (excluding Purchased Receivables and Liquidated Receivables).
"PRECOMPUTED ADVANCE" means the amount, as of the close of
business on the last day of a Collection Period, which the Servicer is required
to advance on any Precomputed Receivable pursuant to Section 5.04(a).
"PRECOMPUTED RECEIVABLE" means any Receivable under which the
portion of each payment allocable to earned interest (which may be referred to
in the Receivable as an add-on finance charge) and the portion allocable to the
Amount Financed are determined according to
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the sum of periodic balances or the sum of monthly balances or any equivalent
method, or which is a monthly actuarial receivable.
"PRINCIPAL BALANCE" means the Amount Financed minus the sum,
as of the close of business on the last day of a Collection Period, of (a) with
respect to a Precomputed Receivable (i) that portion of all Scheduled Payments
due on or prior to such day allocable to principal using the actuarial or
constant yield method, (ii) any refunded portion of extended warranty protection
plan costs or of physical damage, credit life or disability insurance premiums
included in the Amount Financed, (iii) any payment of the Purchase Amount
allocable to principal and (iv) any prepayment in full or any partial
prepayments applied to reduce the Principal Balance and (b) with respect to a
Simple Interest Receivable (i) the portion of all payments made by or on behalf
of the related Obligor on or prior to such day and allocable to principal using
the Simple Interest Method and (ii) any payment of the Purchase Amount allocable
to principal.
"PRINCIPAL DISTRIBUTION AMOUNT" means, for any Distribution
Date, the sum of the following amounts with respect to the preceding Collection
Period: (i) that portion of all collections on Receivables (including amounts
withdrawn from the Payahead Account but excluding amounts deposited into the
Payahead Account) allocable to principal; (ii) all Liquidation Proceeds
attributable to the principal amount of Receivables that became Liquidated
Receivables during the Collection Period in accordance with the Servicer's
customary servicing procedures, plus the amount of Realized Losses with respect
to such Liquidated Receivables; (iii) all Precomputed Advances made by the
Servicer of principal due on the Precomputed Receivables; (iv) to the extent
attributable to principal, the Purchase Amount received with respect to each
Receivable that became a Purchased Receivable during the related Collection
Period; (v) partial prepayments relating to refunds of extended warranty
protection plan costs or of physical damage, credit life or disability insurance
policy premiums, but only if such costs or premiums were financed by the
respective Obligor as of the date of the original Contract; and (vi) on the
Final Scheduled Distribution Date, any amounts advanced by the Servicer on such
Final Scheduled Distribution Date with respect to principal on the Receivables;
provided, however, that in calculating the Principal Distribution Amount the
following will be excluded: (i) amounts received on Precomputed Receivables to
the extent that the Servicer has previously made an unreimbursed Precomputed
Advance of principal; (ii) Liquidation Proceeds with respect to a particular
Precomputed Receivable to the extent of any unreimbursed Precomputed Advances of
principal; (iii) all payments and proceeds (including Liquidation Proceeds) of
any Purchased Receivables the Purchase Amount of which has been included in the
Principal Distribution Amount in a prior Collection Period, and (iv) Recoveries.
"PURCHASE AMOUNT" means the amount, as of the close of
business on the last day of a Collection Period, required to prepay in full a
Receivable under the terms thereof including interest to the end of the month of
purchase.
"PURCHASED RECEIVABLE" means a Receivable purchased as of the
close of business on the last day of a Collection Period by the Servicer
pursuant to Section 4.07 by the Depositor pursuant to Section 3.02 or by the
Seller pursuant to Section 3.01.
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"RATING AGENCY" means [RATING AGENCY] and [RATING AGENCY]. If
no such organization or successor is any longer in existence, "Rating Agency"
shall mean any nationally recognized statistical rating organization or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee and the Servicer.
"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
of the Rating Agencies shall have notified the Depositor, the Servicer and the
Trustee in writing that such action will not result in a reduction or withdrawal
of the then current rating of the Certificates.
"REALIZED LOSSES" means, with respect to any Receivable that
becomes a Liquidated Receivable, the excess of the Principal Balance of such
Liquidated Receivable over Liquidation Proceeds to the extent allocable to
principal.
"RECEIVABLE" means any Contract transferred to the Trust on
the Closing Date that is listed on Schedule A to this Agreement (which schedule
may be in the form of microfiche).
"RECEIVABLE FILES" means the documents specified in Section
3.04.
["RECEIVABLES PURCHASE AGREEMENT" means the purchase agreement
dated as of [_______] between the Seller, as seller and the Depositor, as
purchaser.]
"RECORD DATE" with respect to each Distribution Date means the
first day of the calendar month in which such Distribution Date occurs, unless
otherwise specified in this Agreement.
"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.
"RESERVE ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.07.
"RESERVE ACCOUNT INITIAL DEPOSIT" means, with respect to the
Closing Date and taking into account any transfer of Subsequent Receivables on
such date, an amount equal to the Specified Reserve Account Balance on the
Closing Date (which is equal to $[________________]) and, with respect to each
Subsequent Transfer Date after the Closing Date, an amount equal to [___]% of
the Principal Balance of the Subsequent Receivables transferred to the Trust on
such Subsequent Transfer Date.
"RESERVE ACCOUNT PROPERTY" has the meaning assigned thereto in
Section 5.07(b).
"SCHEDULED PAYMENT" on a Precomputed Receivable means that
portion of the payment required to be made by the Obligor during each Collection
Period sufficient to amortize
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the Principal Balance thereof under the actuarial method over the term of the
Receivable and to provide interest at the APR.
"SELLER" means National City Bank, a national banking
association, and its successors in interest.
"SERVICER" means National City Bank, as the servicer of the
Receivables, and each successor Servicer pursuant to Section 8.03 or 9.02.
"SERVICER'S CERTIFICATE" means an Officers' Certificate of the
Servicer delivered pursuant to Section 4.09, substantially in the form of
Exhibit D.
"SERVICING FEE" means the fee payable to the Servicer for
services rendered during each Collection Period, determined pursuant to Section
4.08.
"SERVICING RATE" means [___]% per annum.
"SIMPLE INTEREST ADVANCE" means the amount of interest, as of
the close of business on the last day of a Collection Period, which the Servicer
is required to advance on the Simple Interest Receivables pursuant to Section
5.04(b).
"SIMPLE INTEREST METHOD" means the method of allocating a
fixed level payment to principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of the fixed
rate of interest multiplied by the unpaid principal balance multiplied by the
period of time elapsed since the preceding payment of interest was made and the
remainder of such payment is allocable to principal.
"SIMPLE INTEREST RECEIVABLE" means any Receivable under which
the portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"SPECIFIED RESERVE ACCOUNT BALANCE" means [STATE FORMULA].
"TOTAL DISTRIBUTION AMOUNT" means, for each Distribution Date,
the sum of the Interest Distribution Amount and the Principal Distribution
Amount (other than the portion thereof attributable to Realized Losses).
"TRUST" shall have the meaning set forth in this Agreement.
"TRUSTEE" means [TRUSTEE], a [_____], not in its individual
capacity, but as Trustee under this pooling and servicing agreement, or, its
successors in interest and any successor Trustee hereunder.
"TRUSTEE OFFICER" means the chairman or vice-chairman of the
board of directors, the chairman or vice-chairman of the executive committee of
the board of directors, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
and any assistant controller or any other officer of the Trustee customarily
performing
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functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"UCC" means the Uniform Commercial Code as in effect in the
relevant jurisdiction on the date thereof.
Section 1.02 OTHER DEFINITIONAL PROVISIONS. (a) All terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto or thereto
unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined herein or in any
such certificate or other document, and accounting terms partly defined herein
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 herein or in
any such certificate or other document are inconsistent with the meanings of
such terms under generally accepted accounting principles, the definitions
contained herein, or in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and word of
similar import when used herein 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, respectively; and the
term "including" and its variations shall mean "including without limitation".
(d) 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.
(e) 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
Establishment of Trust
Section 2.01 CREATION OF TRUST. Upon the execution of this
Agreement by the parties hereto, there is hereby created a separate trust, which
shall be known as National City Auto Receivables Trust 200__-__ (the "Trust").
The Trust shall be administered pursuant to the provisions of this Agreement for
the benefit of the Certificateholders.
Section 2.02 ACCEPTANCE BY TRUSTEE. The Trustee hereby accepts
all consideration conveyed by the Depositor pursuant to Section 2.03 and
declares that it will hold
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such consideration upon the trusts set forth herein for the benefit of the
Certificateholders, subject to the terms and provisions of this Agreement.
Section 2.03 CONVEYANCE OF RECEIVABLES. In consideration of
the Trustee's delivery on the Closing Date to or upon the order of the Depositor
of Class [A] Certificates in an initial aggregate principal amount equal to the
Initial Class [A] Balance and Class [B] Certificates in an initial aggregate
principal amount equal to the Initial Class [B] Balance, the Depositor does
hereby sell, transfer, assign, set over and otherwise convey to the Trustee for
the benefit of the Certificateholders, without recourse (subject to the
obligations set forth herein), all right, title and interest of the Depositor in
and to:
(1) the Receivables, and all moneys due thereon on or after
__________, in the case of Precomputed Receivables, and all
moneys received thereon on and after __________, in the case
of Simple Interest Receivables;
(2) the security interests in the Financed Assets granted by
Obligors pursuant to the Receivables and any other interest
of the Seller or the Depositor in such Financed Assets;
(3) any proceeds with respect to the Receivables from claims
on any physical damage, credit life or disability insurance
policies covering Financed Assets or Obligors;
(4) any proceeds from recourse to Dealers on Receivables
with respect to which the Servicer has determined in
accordance with its customary servicing procedures that
eventual payment in full is unlikely;
(5) any Financed Asset that shall have secured any such
Receivable and shall have been acquired by or on behalf of
the Seller, the Depositor, the Servicer or the Trust;
(6) all right, title and interest of the Depositor under the
Receivables Purchase Agreement, including, without
limitation, the right of the Depositor to cause the Seller
to purchase Receivables under certain circumstances.
(7) the proceeds of any and all of the foregoing.
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 under
Section 3.02(b) of the Receivables Purchase Agreement and has consented to the
assignment by the Depositor to the Trust 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 Trust. Pursuant to
Section 2.02 of this Agreement, the Depositor has sold, assigned, transferred
and conveyed to the Trust, as part of the
15
assets of the Trust, its rights under the Receivables Purchase Agreement,
including the representations and warranties of the Seller in Section 3.02(b)
therein, upon which the Trustee relies in accepting the Receivables and
delivering the Certificates, 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 delivery of the Receivable Files to the Trustee
or any custodian.
(b) the Seller hereby agrees that the Trustee shall have the
right, on behalf of the Trust and the Certificateholders, to enforce any and all
rights under the Receivables Purchase Agreement assigned to the Trust herein,
including the right to cause the Sellers to repurchase any Receivable with
respect to which it is in breach of any of its representations and warranties
set forth in Section 3.02(b) therein, directly against the Sellers as though the
Trustee, as trustee of the Trust, were a party to the Receivables Purchase
Agreement, and the Trustee 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 as to the
Receivables on which the Trustee relies in accepting the Receivables and
delivering the Certificates and the Security Insurer relies in issuing the
Policy. 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 Trust.
(a) TITLE. It is the intention of the Depositor that (i) the
transfer and assignment herein contemplated constitute a sale of the Receivables
from the Depositor to the Trust, conveying good title thereto, free and clear of
any Liens or rights of other Persons and (ii) the beneficial interest in and
title to the Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against the Depositor under any bankruptcy
law. No Receivable has been sold, transferred, assigned or pledged by the
Depositor to any Person other than the Trust. Immediately prior to the transfer
and assignment herein contemplated, the Depositor had good and marketable title
to each Receivable, free and clear of all Liens and rights of others and,
immediately upon the transfer thereof, the Trust shall have good and marketable
title to each such Receivable, free and clear of all Liens and rights of others;
and the transfer has been perfected under the UCC.
(b) ALL FILINGS MADE. All filings (including UCC filings)
necessary in any jurisdiction to give the Trust a first perfected ownership
interest in the Receivables shall have been made.
Section 3.03 REPURCHASE UPON BREACH. The Depositor, the
Servicer or the Trustee, as the case may be, shall inform the other parties to
this Agreement promptly, in writing, upon the discovery of any breach of the
Depositor's representations and warranties made pursuant to Section 3.01 of this
Agreement or Section [___] of the Receivable Purchase Agreement or of the
Depositor's representations and warranties made pursuant to Section 3.02 above.
Unless any such breach shall have been cured by the last day of the second
Collection Period following the discovery thereof by the Trustee or receipt by
the Trustee of notice from the Depositor or the Servicer of such breach, the
Depositor shall be obligated to repurchase any
16
Receivable materially and adversely affected by any such breach as of such last
day (or, at the Depositor's option, the last day of the first Collection Period
following such discovery or notice). In consideration of the repurchase of any
Receivable, the Depositor shall remit the Purchase Amount, in the manner
specified in Section 5.05 provided, however, that the obligation of the
Depositor to repurchase any receivable arising solely as a result of a breach of
the Seller's representations and warranties under Section 3.02 of the
Receivables Purchase Agreement is subject to the receipt by the Depositor of the
Purchase Amount from the Seller. Subject to the provisions of Section 7.03, the
sole remedy of the Trustee, the Trust or the Certificateholders with respect to
a breach of representations and warranties pursuant to Section 3.01 and 3.02 and
the Agreement contained in this Section shall be to require the Depositor to
repurchase Receivables pursuant to this Section, subject to the conditions
contained herein or to enforce the Seller's obligation to the Depositor to
repurchase such Receivables 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
Trustee, upon the execution and delivery of this Agreement, hereby revocably
appoints the Servicer, and the Servicer hereby accepts such appointment, to act
as the agent of the Trustee as custodian of the following documents or
instruments which are hereby constructively delivered to the Trustee as of the
Cutoff Date with respect to each Receivable:
(i) the original of the Receivable;
(ii) the original credit application fully executed by the
Obligor;
(iii) the original certificate of title or such documents
that the Servicer or the Depositor shall keep on file, in
accordance with its customary procedures, evidencing the security
interest of the Depositor in the Financed Asset; and
(iv) any and all other documents that the Servicer or the
Depositor shall keep on file, in accordance with its customary
procedures, relating to a Receivable, an Obligor or a Financed
Asset.
Section 3.05 DUTIES OF SERVICER AS CUSTODIAN. (a) SAFEKEEPING.
The Servicer shall hold the Receivable Files as custodian on behalf of the
Trustee for the benefit of all present and future Certificateholders, and shall
maintain such accurate and complete accounts, records and computer systems
pertaining to each Receivable File as shall enable the Trustee to comply with
this Agreement. In performing its duties as custodian the Servicer shall act
with reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to the receivable files relating to all comparable [new
and used automobiles, light-duty trucks, motorcycles, recreational vehicles,
vans, minivans and/or sport utility vehicles] 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 Trustee to verify the accuracy of the Servicer's
record keeping. The Servicer shall promptly report to the 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
17
such failure. Nothing herein shall be deemed to require an initial review or any
periodic review by the 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 B to
this Agreement or at such other office as shall be specified to the Trustee by
written notice not later than 30 days after any change in location. The Servicer
shall make available to the Trustee or its 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 Trustee shall instruct.
(c) RELEASE OF DOCUMENTS. Upon instruction from the Trustee,
the Servicer shall release any Receivable File to the Trustee, the Trustee's
agent or the Trustee's designee, as the case may be, at such place or places as
the Trustee may designate, as soon as practicable.
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 Trustee Officer.
Section 3.07 CUSTODIAN'S INDEMNIFICATION. The Servicer as
custodian shall indemnify the Trustee and each of its 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 Trustee or any of its
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 Trustee or any such officers, director, employee or agent
of the Trustee for any portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of the Trustee or any such officer,
director, employee or agent of the Trustee.
Section 3.08 EFFECTIVE PERIOD AND TERMINATION. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section. If
__________ shall resign as Servicer in accordance with the provisions hereof, or
if all of the rights and obligations of any Servicer shall have been terminated
under Section 9.01, the appointment of such Servicer as custodian shall be
terminated by the Trustee or by Holders of the Class [A] Certificates evidencing
not less than [___]% of the Class [A] Certificate Balance, in the same manner as
the Trustee or such Holders may terminate the rights and obligations of the
Servicer under Section 9.01. The Trustee may terminate the Servicer's
appointment as custodian, with cause, at any time upon written notification to
the Servicer, and without cause upon 30 days' prior written notification. As
soon as practicable after any termination of such appointment, the Servicer
shall deliver the Receivable Files to the Trustee or the Trustee's agent at such
place or places as the Trustee may reasonably designate.
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ARTICLE IV.
Administration and Servicing of Receivables
Section 4.01 DUTIES OF SERVICER. The Servicer, as agent for the
Trustee (to the extent provided herein), shall manage, service, administer and
make collections on the Receivables (other than Purchased Receivables) with
reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to all comparable receivables that it services for itself
or others. The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors on such Receivables, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information to
Obligors, accounting for collections, furnishing monthly and annual statements
to the Trustee with respect to distributions, and making Advances pursuant to
Section 5.04. Subject to the provisions of Section 4.02, the Servicer shall
follow its customary standards, policies and procedures in performing its duties
as Servicer. Without limiting the generality of the foregoing, the Servicer is
authorized and empowered by the Trustee to execute and deliver, on behalf of
itself, the Trust, the Certificateholders, the Trustee, or any of them, any and
all instruments of satisfaction or cancellation, or partial or full release or
discharge, and all other comparable instruments, with respect to such
Receivables or to the Financed Assets securing such Receivables. If the Servicer
shall commence a legal proceeding to enforce a Receivable, the Trustee (in the
case of any Receivable other than a Purchased Receivable) shall thereupon be
deemed to have automatically assigned, solely for the purpose of collection,
such Receivable to the Servicer. 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 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 Certificateholders. The Trustee shall, upon 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 AND ALLOCATION OF RECEIVABLE PAYMENTS.
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 [new and used automobiles, light-duty trucks,
motorcycles, recreational vehicles, vans, minivans and/or sport utility
vehicles] receivables that it services for itself or others. The Servicer shall
allocate collections between principal and interest in accordance with the
customary servicing procedures it follows with respect to all comparable [new
and used automobiles, light-duty trucks, motorcycles, recreational vehicles,
vans, minivans and/or sport utility vehicles] receivables that it services for
itself or others. The Servicer may grant extensions, rebates or adjustments on a
Receivable, which shall not, for the purposes of this Agreement, modify the
original due dates or amounts of the Scheduled Payments on a Precomputed
Receivable or the original due dates or amounts of the originally scheduled
payments of interest on Simple Interest Receivables; provided, however, that if
the Servicer extends the date for final payment by the Obligor of any Receivable
beyond the Final Scheduled Maturity Date, it shall promptly repurchase such
Receivable from the Trust in accordance with the terms of Section 4.07. The
Servicer may in its discretion waive any late payment charge or any other fees
that may be collected in the ordinary course of servicing a
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Receivable. The Servicer shall not agree to any alteration of the interest rate
on any Receivable or of the amount of any Scheduled Payment on Precomputed
Receivables or the originally scheduled payments on Simple Interest Receivables.
Section 4.03 REALIZATION UPON RECEIVABLES. On behalf of the
Trust, the Servicer shall use its best efforts, consistent with its customary
servicing procedures, to repossess or otherwise convert the ownership of the
Financed Asset securing any Receivable as to which the Servicer shall have
determined eventual payment in full is unlikely. The Servicer shall follow such
customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of such receivables, which shall include reasonable
efforts to realize upon any recourse, if any, to Dealers and selling the
Financed Asset at public or private sale. The foregoing shall be subject to the
provision that, in any case in which the Financed Asset shall have suffered
damage, the Servicer shall not expend funds in connection with the repair or the
repossession of such Financed Asset unless it shall determine in its discretion
that such repair and/or repossession will increase the Liquidation Proceeds by
an amount greater than the amount of such expenses.
Section 4.04 PHYSICAL DAMAGE INSURANCE. The Servicer, in
accordance with its customary servicing procedures, shall require that each
Obligor shall have obtained physical damage insurance covering the Financed
Asset as of the execution of the Receivable.
Section 4.05 MAINTENANCE OF SECURITY INTERESTS IN FINANCED
ASSETS. 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 Asset. The
Trustee hereby authorizes the Servicer to take such steps as are necessary to
re-perfect such security interest on behalf of the Trust in the event of the
relocation of a Financed Asset or for any other reason.
Section 4.06 COVENANTS OF SERVICER. The Servicer shall not
release the Financed Asset securing any Receivable from the security interest
granted by such Receivable in whole or in part except in the event of payment in
full by the Obligor thereunder or repossession, nor shall the Servicer impair
the rights of the Trust or the Certificateholders in such Receivables, nor shall
the Servicer increase the number of scheduled payments due under a Receivable.
Section 4.07 PURCHASE OF RECEIVABLES UPON BREACH. The Servicer
or the Trustee shall inform the other party and the Depositor promptly, in
writing, upon the discovery of any breach pursuant to Section 4.02, 4.05 or
4.06. Unless the breach shall have been cured by the last day of the second
Collection Period following such discovery (or, at the Servicer's election, the
last day of the first following Collection Period), the Servicer shall purchase
any Receivable materially and adversely affected by such breach as of such last
day. If the Servicer takes any action in any Collection Period pursuant to
Section 4.02 that impairs the right of the Trustee, the Trust or the
Certificateholders in any Receivable or as otherwise provided in Section 4.02,
the Servicer shall purchase such Receivable as of the last day of such
Collection Period. In consideration of the purchase of any such Receivable
pursuant to either of the two preceding sentences, the Servicer shall remit the
Purchase Amount in the manner specified in Section 5.05. For purposes of this
Section, the Purchase Amount shall consist in part of a release by the Servicer
of all rights of reimbursement with respect to Outstanding Precomputed Advances
or
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Outstanding Simple Interest Advances on the Receivable. Subject to Section 8.02,
the sole remedy of the Trustee, the Trust or the Certificateholders with respect
to a breach pursuant to Section 4.02, 4.05 or 4.06 shall be to require the
Servicer to repurchase Receivables pursuant to this Section. The Trustee shall
have no duty to conduct any affirmative investigation as to the occurrence of
any condition requiring the repurchase of any Receivable pursuant to this
Section.
Section 4.08 SERVICING FEE. The Servicing Fee for a
Distribution Date shall equal the product of (a) one twelfth, (b) the Servicing
Rate and (c) the Pool Balance as of the first day of the preceding Collection
Period. The Servicer shall also be entitled to all late fees, prepayment charges
(including, in the case of a Receivable that provides for payments according to
the "Rule of 78s" and that is prepaid in full, the difference between the
Principal Balance of such Receivable (plus accrued interest to the date of
prepayment) and the principal balance of such Receivable computed according to
the "Rule of 78s") and other administrative fees or similar charges allowed by
applicable law with respect to the Receivables, collected (from whatever source)
on the Receivables, plus any reimbursement pursuant to Section 8.02.
Section 4.09 SERVICER'S CERTIFICATE. Not later than [11:00 a.m.
(New York time)] on each Determination Date, the Servicer shall deliver to the
Trustee, the Rating Agencies and the Depositor, a Servicer's Certificate
containing all information necessary to make the distributions on the related
Distribution Date pursuant to Section 5.06 (including, if required, withdrawals
from any Reserve Account, withdrawals from or deposits to the Payahead Account
and Precomputed Advances by the Servicer pursuant to Section 5.04) for the
related Collection Period. Receivables to be purchased by the Servicer or to be
repurchased by the Depositor or the Seller shall be identified by the Servicer
by account number with respect to such Receivable (as specified in Schedule A).
Section 4.10 ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF
DEFAULT. (a) The Servicer shall deliver to the Trustee, on or before
[___________] of each year, an Officers' Certificate, dated as of
[_____________] of the preceding year, stating that (A) a review of the
activities of the Servicer during the preceding 12-month period (or such shorter
period as shall have elapsed since the Closing Date) and of its performance
hereunder and under this Agreement has been made under such officers'
supervision and (B) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof. The Trustee shall send a copy of such certificate and
the report referred to in Section 4.11 to the Rating Agencies. A copy of such
certificate and the report referred to in Section 4.11 may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and to the Rating
Agencies, promptly after having obtained knowledge thereof, but in no event
later than 5 Business Days thereafter, written notice in an Officers'
Certificate of any event which with the giving of notice or lapse of time, or
both, would become an Event of Default under Section 9.01, clause (a) or (b).
Section 4.11 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT'S
REPORT. The Servicer shall cause a firm of independent certified public
accountants, which may also render
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other services to the Servicer, the Depositor or their Affiliates, to deliver to
the Owner Trustee and the Trustee on or before [__________] of each year
beginning [________ ], [ ], a report addressed to the Board of Directors of the
Servicer, to the effect that such firm has examined the financial statements of
the Servicer and issued its report thereon and that such examination (1) 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; (2) included tests
relating to [automotive] [recreation vehicle] loans serviced for others in
accordance with the requirements of the Uniform Single Attestation Program for
Mortgage Bankers (the "Program"), to the extent the procedures in such Program
are applicable to the servicing obligations set forth in this Agreement; and (3)
except as described in the report, disclosed no exceptions or errors in the
records relating to [automobile and light-duty truck] [recreational vehicle]
loans serviced for others that, in the firm's opinion, paragraph four of such
Program requires such firm to report.
Such report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 4.12 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING RECEIVABLES. The Servicer shall provide to the Certificateholders
access to the Receivable Files in such cases where the Certificateholder shall
be required by applicable statutes or regulations to review such documentation.
Access shall be afforded without charge, but only upon reasonable request and
during the normal business hours at the 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 SERVICER EXPENSES. The Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Servicer and expenses incurred in connection with distributions and reports
to Certificateholders.
Section 4.14 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 that the Rating Agency Condition shall have been
satisfied in connection therewith; and, provided, further, that the Servicer
shall remain obligated and shall be liable to the Trustee and the
Certificateholders 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 the
subservicer shall be as agreed between the Servicer and its subservicer from
time to time, and none of the Trust, the Trustee or the Certificateholders shall
have any responsibility therefor.
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ARTICLE V
Distributions; Reserve Account;
Statements to Certificateholders
Section 5.01 ESTABLISHMENT OF TRUST ACCOUNTS. (a) (i) The
Servicer, for the benefit of the Certificateholders, shall establish and
maintain in the name of the 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 Certificateholders. Investment earnings
on funds in the Collection Account shall be paid to the Servicer as additional
servicing compensation.
(ii) The Servicer, for the benefit of the
Certificateholders, shall establish and maintain in the name of the
Trustee a non-interest bearing account (the "Distribution Account"),
bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Certificateholders.
(b) Funds on deposit in the Collection Account shall be
invested by the Trustee in Eligible Investments selected in writing by the
Servicer or an investment manager selected by the Servicer, which investment
manager shall have agreed to comply with the terms of this Agreement as they
relate to investing such funds; provided, however, that it is understood and
agreed that the Trustee shall not be liable for any loss arising from such
investment in Eligible Investments. All such Eligible Investments shall be held
by the Trustee for the benefit of the Servicer, and on each Distribution Date
all interest and other investment income (net of losses and investment expenses)
on funds on deposit therein shall be paid to the Servicer. Other than as
permitted by the Rating Agencies, funds on deposit in the Collection Account
shall be invested in Eligible Investments that will mature (A) not later than
the Business Day immediately preceding the next Distribution Date or (B) on such
next Distribution Date if either (x) such investment is held in the corporate
trust department of the institution with which the Collection Account is then
maintained and is invested in a time deposit of (the Trustee) rated at least
[A-1] by [RATING AGENCY] and [P-1] by [RATING AGENCY] (such account being
maintained within the corporate trust department of the Trustee) or (y) the
Trustee (so long as the short-term unsecured debt obligations of the Trustee are
either (1) rated at least [P-1] by [RATING AGENCY] and [A-1] by [RATING AGENCY]
on the date such investment is made or (2) guaranteed by an entity whose
short-term unsecured debt obligations are rated at least [P-1] by [RATING
AGENCY] and [A-1] by [RATING AGENCY] on the date such investment is made) has
agreed to advance funds on such Distribution Date to the Distribution Account in
the amount payable on such investment on such Distribution Date pending receipt
thereof to the extent necessary to make distributions on such Distribution Date.
The guarantee referred to in clause (y) of the preceding sentence shall be
subject to the Rating Agency Condition. For the purpose of the foregoing, unless
the Trustee affirmatively agrees in writing to make such advance with respect to
such investment prior to the time an investment is made, it shall not be deemed
to have agreed to make such advance. Funds deposited in the Collection Account
upon the maturity of any Eligible Investments on the day immediately preceding a
Distribution Date are not required to be invested overnight. If, at any time,
the Collection Account ceases to be an Eligible Deposit Account, the 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
23
may consent) establish a new Collection Account as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new account.
(c) (i) The Servicer shall establish and maintain with the
Trustee an Eligible Deposit Account (the "Payahead Account"). The Payahead
Account shall not be property of the Trust.
(ii) The Servicer shall on or prior to each Distribution
Date (and prior to deposits to the Distribution Account) transfer from
the Collection Account to the Payahead Account all Payaheads as
described in Section 5.03 received by the Servicer during the
Collection Period. Notwithstanding the foregoing and the first
sentence of Section 5.02, for so long as the Servicer is permitted to
make monthly remittances to the Collection Account pursuant to Section
5.02, Payaheads need not be remitted to and deposited in the Payahead
Account but instead may be remitted to and held by the Servicer. So
long as such condition is met, the Servicer shall not be required to
segregate or otherwise hold separate any Payaheads remitted to the
Servicer as aforesaid but shall be required to remit Payaheads to the
Collection Account in accordance with Section 5.06(a).
Section 5.02 COLLECTIONS. The Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables (other than Purchased
Receivables) and all Liquidation Proceeds, both as collected during the
Collection Period. Notwithstanding the foregoing, for so long as (i) National
City Bank remains the Servicer, (ii) no Event of Default shall have occurred and
be continuing and (iii)(x) National City Bank maintains a short-term rating of
at least [A-1] by [RATING AGENCY] and [P-1] by [RATING AGENCY] (and for five
Business Days following a reduction in either such rating) or (y) prior to
ceasing daily remittances, the Rating Agency Condition shall have been satisfied
(and any conditions or limitations imposed by the Rating Agencies in connection
therewith are complied with), the Servicer shall remit such collections with
respect to the preceding calendar month to the Collection Account on the
Determination Date immediately preceding the related Distribution Date. 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 Depositor.
Section 5.03 APPLICATION OF COLLECTIONS. All collections for
the Collection Period shall be applied by the Servicer as follows:
With respect to each Receivable (other than a Purchased
Receivable), payments by or on behalf of the Obligor shall be
applied first, in the case of Precomputed Receivables, to
reduce Outstanding Precomputed Advances as described in
Section 5.04(a) and, in the case of Simple Interest
Receivables, to reduce Outstanding Simple Interest Advances to
the extent described in Section 5.04(b). Next, any excess
shall be applied, in the case of Precomputed Receivables, to
the Scheduled Payment and, in the case of Simple Interest
Receivables, to interest and principal in accordance with the
Simple Interest Method. With respect to Precomputed
Receivables, any remaining excess shall be added to the
Payahead Balance, and shall be applied to prepay the
Precomputed Receivable, but only if
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the sum of such excess and the previous Payahead Balance shall be
sufficient to prepay the Receivable in full. Otherwise, any such
remaining excess payments shall constitute a Payahead and shall
increase the Payahead Balance.
Section 5.04 ADVANCES. (a) As of the close of business on the
last day of each Collection Period, if the payments by or on behalf of the
Obligor on a Precomputed Receivable (other than a Purchased Receivable) shall be
less than the Scheduled Payment, the Payahead Balance shall be applied by the
Servicer to the extent of the shortfall and such Payahead Balance shall be
reduced accordingly. Next, the Servicer shall advance any remaining shortfall
(such amount a "Precomputed Advance"), to the extent that the Servicer, at its
sole discretion, shall determine that the Precomputed Advance shall be
recoverable from the Obligor, the Purchase Amount, Liquidation Proceeds or
proceeds of any other Precomputed Receivables. With respect to each Precomputed
Receivable, the Precomputed Advance shall increase Outstanding Precomputed
Advances. Outstanding Precomputed Advances shall be reduced by subsequent
payments by or on behalf of the Obligor, collections of Liquidation Proceeds in
respect of Precomputed Receivables, or payments of the Purchase Amount in
respect of Precomputed Receivables.
If the Servicer shall determine that an Outstanding
Precomputed Advance with respect to any Precomputed Receivable shall not be
recoverable as aforesaid, the Servicer shall be reimbursed from any collections
made on other Precomputed Receivables in the Trust, and Outstanding Precomputed
Advances with respect to such Precomputed Receivable shall be reduced
accordingly.
(b) As of the close of business on the last day of each
Collection Period, the Servicer shall advance an amount equal to the amount of
interest due on the Simple Interest Receivables at their respective APR's for
the related Collection Period (assuming the Simple Interest Receivables pay on
their respective due dates) minus the amount of interest actually received on
the Simple Interest Receivables during the related Collection Period (such
amount, a "Simple Interest Advance"). With respect to each Simple Interest
Receivable, the Simple Interest Advance shall increase Outstanding Simple
Interest Advances. If such calculation results in a negative number, an amount
equal to the absolute value of such negative number shall be paid to the
Servicer and the amount of Outstanding Simple Interest Advances shall be reduced
by such amount. In addition, in the event that a Simple Interest Receivable
becomes a Liquidated Receivable, Liquidation Proceeds with respect to such
Simple Interest Receivable attributable to accrued and unpaid interest thereon
(but not including interest for the then current Collection Period) shall be
paid to the Servicer to reduce Outstanding Simple Interest Advances, but only to
the extent of any Outstanding Simple Interest Advances. The Servicer shall not
make any advance with respect to principal of Simple Interest Receivables.
Section 5.05 ADDITIONAL DEPOSITS. The Servicer shall deposit
in the Collection Account the aggregate Advances pursuant to Section 5.04. To
the extent that the Servicer fails to make a Simple Interest Advance pursuant to
Section 5.04(b) on the date required, the Trustee shall withdraw such amount
(or, if determinable, such portion of such amount as does not represent advances
for delinquent interest) from the Reserve Account and deposit such amount in the
Collection Account. The Servicer and the Depositor shall deposit or cause to be
deposited in the Collection Account the aggregate Purchase Amount with respect
to Purchased Receivables,
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and the Servicer shall deposit therein all amounts to be paid under Section
11.02. The Servicer shall deposit the aggregate Purchase Amount with respect to
Purchased Receivables when such obligations are due, unless the Servicer shall
not be required to make daily deposits pursuant to Section 5.02.
Section 5.06 DISTRIBUTIONS. (a) On each Distribution Date, the
Trustee shall cause to be transferred:
(i) From the Payahead Account, or from the Servicer in
the event that the second and third sentences of Section 5.01(c)(ii)
are applicable, to the Collection Account, in immediately available
funds, the aggregate previous Payaheads to be applied to Scheduled
Payments for the related Collection Period on, or as prepayments in
full of, Precomputed Receivables or prepayments for the related
Collection Period, pursuant to Sections 5.03 and 5.04, in the amounts
set forth in the Servicer's Certificate delivered on the related
Determination Date. A single, net transfer may be made.
(ii) From the Collection Account to the Distribution
Account, in immediately available funds, the entire amount then on
deposit in the Collection Account; provided, however, that in the
event that the Servicer is required to make deposits to the Collection
Account on a daily basis pursuant to Section 5.02, the amount of the
funds transferred from the Collection Account to the Distribution
Account will include only those funds that were deposited in the
Collection Account for the Collection Period related to such
Distribution Date.
(b) On or prior to each Determination Date, the Servicer shall
calculate the Total Distribution Amount, the Interest Distribution Amount, the
Principal Distribution Amount, the Class [A] Distributable Amount, and the Class
[B] Distributable Amount, and, based on the Total Distribution Amount and the
other amounts to be distributed on the related Distribution Date, determine the
amount distributable to Holders of each class of Certificates.
(c) On each Distribution Date, the Trustee (based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date pursuant to Section 5.09) shall distribute amounts on deposit
in the Distribution Account and, if applicable, the Reserve Account, in the
manner and priority set forth below:
(i) to the Servicer, from the Interest Distribution
Amount, the Servicing Fee and all unpaid Servicing Fees from prior
Collection Periods;
(ii) to the Class [A] Certificateholders:
(A) from the Class [A] Percentage of the Interest
Distribution Amount (as such Interest Distribution Amount has
been reduced by Servicing Fee payments), the sum of the Class [A]
Interest Distributable Amount and the Class [A] Interest
Carryover Shortfall as of the close of the preceding Distribution
Date;
(B) from the Class [A] Percentage of the Principal
Distribution Amount (other than the portion thereof attributable
to Realized Losses), the sum
26
of the Class [A] Principal Distributable Amount and the Class [A]
Principal Carryover Shortfall as of the close of the preceding
Distribution Date;
(iii) to the Class [B] Certificateholders:
(A) from the Class [B] Percentage of the Interest
Distribution Amount (as such Interest Distribution Amount has
been reduced by Servicing Fee payments), the sum of the Class [B]
Interest Distributable Amount and the Class [B] Interest
Carryover Shortfall as of the close of the preceding Distribution
Date; and
(B) from the Class [B] Percentage of the Principal
Distribution Amount, the sum of the Class [B] Principal
Distributable Amount and the Class [B] Principal Carryover
Shortfall as of the close of the preceding Distribution Date.
(d) The rights of the Class [B] Certificateholders to receive
distributions in respect of the Class [B] Certificates shall be and hereby are
subordinated to the rights of the Class [A] Certificateholders to receive
distributions in respect of the Class [A] Certificates and the rights of the
Servicer to receive the Servicing Fee (and any accrued and unpaid Servicing Fees
from prior Collection Periods) in the event of delinquency or defaults on the
Receivables. In addition, the Class [A] Certificateholders and the Class [B]
Certificateholders shall have the respective rights to receive funds from the
Reserve Account in the order of priority set forth below. Such subordination and
withdrawals from the Reserve Account shall be effected as follows, and all
payments shall be effected by applying funds in the following order:
(i) If the Class [A] Percentage of the Interest
Distribution Amount (as such Interest Distribution Amount has been
reduced by Servicing Fee payments) is less than the sum of the Class
[A] Interest Distributable Amount and any Class [A] Interest Carryover
Shortfall from the preceding Distribution Date, the Class [A]
Certificateholders shall be entitled to receive distributions in
respect of such deficiency first, from the Class [B] Percentage of the
Interest Distribution Amount; second, if such amounts are
insufficient, from amounts on deposit in the Reserve Account; and
third, if such amounts are insufficient, from the Class [B] Percentage
of the Principal Distribution Amount (other than the portion thereof
attributable to Realized Losses).
(ii) If the Class [A] Percentage of the Principal
Distribution Amount (other than the portion thereof attributable to
Realized Losses) is less than the sum of the Class [A] Principal
Distributable Amount and the Class [A] Principal Carryover Shortfall
from the preceding Distribution Date, the Class [A] Certificateholders
shall be entitled to receive distributions in respect of such
deficiency first, from the Class [B] Percentage of the Principal
Distribution Amount (other than the portion thereof attributable to
Realized Losses); second, if such amounts are insufficient, from
amounts on deposit in the Reserve Account; and third, if such amounts
are insufficient, from the Class [B] Percentage of the Interest
Distribution Amount.
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(iii) If the Class [B] Percentage of the Interest
Distribution Amount, less the portion thereof, if any, distributed to
the Class [A] Certificateholders pursuant to clause (i) above, is less
than the Class [B] Interest Distributable Amount, the Class [B]
Certificateholders shall be entitled to receive such deficiency from
amounts on deposit in the Reserve Account (after giving effect to any
withdrawals therefrom pursuant to clauses (i) and (ii) above).
(iv) If the Class [B] Percentage of the Principal
Distribution Amount (other than the portion thereof attributable to
Realized Losses), less the portion thereof, if any, distributed to the
Class [A] Certificateholders pursuant to clause (ii) above, is less
than the Class [B] Principal Distributable Amount, the Class [B]
Certificateholders shall be entitled to receive such deficiency from
amounts on deposit in the Reserve Account (after giving effect to any
withdrawals therefrom pursuant to clauses (i), (ii) and (iii) above).
(e) On each Distribution Date, the Trustee shall distribute
any amounts remaining in the Distribution Account after making the distributions
described in Sections 5.06(c) and (d) above in the following amounts and in the
following order of priority: (i) into the Reserve Account until the amount on
deposit therein equals the Specified Reserve Account Balance and (ii) to the
Depositor.
(f) Subject to Section 11.01 respecting the final payment upon
retirement of each Certificate, the Servicer shall on each Distribution Date
instruct the Trustee to distribute to each Certificateholder of record on the
preceding Record Date either by wire transfer in immediately available funds to
the account of such Holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Servicer appropriate instructions prior to such Distribution Date and such
Holder's Certificates of either Class in the aggregate evidence a denomination
of not less than $1,000,000, or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register, the amounts to be distributed to such Certificateholder pursuant to
such Holder's Certificates.
Section 5.07 RESERVE ACCOUNT. (a) In order to effectuate the
subordination provided for herein and to assure that sufficient amounts to make
required distributions to Certificateholders will be available, the Servicer
shall establish and maintain an Eligible Deposit Account (the "Reserve
Account"), bearing a designation clearly indicating that the funds deposited
therein are held in trust for the benefit of the Certificateholders. The Reserve
Account will include the money and other property deposited and held therein
pursuant to Section 5.06(e), 5.08(a) and this Section.
On or prior to the Closing Date, the Seller shall deposit an
amount equal to the Reserve Account Initial Deposit into the Reserve Account.
The Reserve Account and the Reserve Account Property shall not be part of the
Trust, but instead will be held by the Trustee, as collateral agent, for the
benefit of the Holders of the Certificates. The Seller hereby acknowledges that
the Reserve Account Initial Deposit (and any investment earnings thereon) is
owned directly by it, and the Seller hereby agrees to treat the same as its
assets (and earnings) for federal income tax and all other purposes.
28
(b) In order to give effect to the subordination provided for
herein and to assure the availability of the amounts maintained in the Reserve
Account, the Seller hereby sells, conveys and transfers to the Trustee, as
collateral agent, and its successors and assigns, the Reserve Account Initial
Deposit and all proceeds thereof and hereby pledges to the Trustee as collateral
agent, and its successors and assigns, all other amounts deposited in or
credited to the Reserve Account from time to time under this Agreement, all
Eligible Investments made with amounts on deposit therein, all earnings and
distributions thereon and proceeds thereof (other than proceeds constituting net
investment earnings attributable to the Reserve Account Property) subject,
however, to the limitations set forth below, and solely for the purpose of
securing and providing for payment of the Class [A] Distributable Amount and the
Class [B] Distributable Amount in accordance with Section 5.06 and this Section
(all the foregoing, subject to the limitations set forth below, the "Reserve
Account Property"), to have and to hold all the aforesaid property, rights and
privileges unto the Trustee, its successors and assigns, in trust for the uses
and purposes, and subject to the terms and provisions, set forth in this
Section. The Trustee hereby acknowledges such transfer and accepts the trusts
hereunder and shall hold and distribute the Reserve Account Property in
accordance with the terms and provisions of this Section.
(c) Consistent with the limited purposes for which such trust
is granted, the amounts on deposit in the Reserve Account on each Distribution
Date shall be available for distribution as provided in Section 5.06, in
accordance with and subject to the following: if the amount on deposit in the
Reserve Account (after giving effect to all deposits thereto and withdrawals
therefrom on such Distribution Date) is greater than the Specified Reserve
Account Balance, the Trustee shall release and distribute all such amounts to
the Seller. Upon any such distribution to the Seller, the Certificateholders
will have no further rights in, or claims to, such amounts.
(d) Funds on deposit in the Reserve Account shall be invested
by the Trustee, as collateral agent, in Eligible Investments selected in writing
by the Seller or an investment manager selected by the Servicer, which
investment manager shall have agreed to comply with the terms of this Agreement
as they relate to investing such funds; provided, however, that it is understood
and agreed that the Trustee shall not be liable for any loss arising from such
investment in Eligible Investments. Other than as permitted by the Rating
Agencies, funds on deposit in the Reserve Account shall be invested in Eligible
Investments that will mature (A) not later than the Business Day immediately
preceding the next Distribution Date or (B) on such next Distribution Date if
either (x) such investment is held in the corporate trust department of the
institution with which the Reserve Account is then maintained and is invested in
a time deposit of (the Trustee) rated at least [A-1] by [RATING AGENCY] and
[P-1] by [RATING AGENCY] (such account being maintained within the corporate
trust department of the Trustee) or (y) the Trustee (so long as the short-term
unsecured debt obligations of the Trustee are either (1) rated at least [P-1] by
[RATING AGENCY] and [A-1] by [RATING AGENCY] on the date such investment is made
or (2) guaranteed by an entity whose short-term unsecured debt obligations are
rated at least [P-1] by [RATING AGENCY] and [A-1] by [RATING AGENCY] on the date
such investment is made) has agreed to advance funds on such Distribution Date
to the Distribution Account in the amount payable on such investment on such
Distribution Date pending receipt thereof to the extent necessary to make
distributions on such Distribution Date. The guarantee referred to in clause (y)
of the preceding sentence shall be subject to the Rating
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Agency Condition. For the purpose of the foregoing, unless the Trustee
affirmatively agrees in writing to make such advance with respect to such
investment prior to the time an investment is made, it shall not be deemed to
have agreed to make such advance. Funds deposited in the Reserve Account upon
the maturity of any Eligible Investments on the day immediately preceding a
Distribution Date are not required to be invested overnight. If, at any time,
the Reserve Account ceases to be an Eligible Deposit Account, the Trustee as
collateral agent (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 Reserve Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new account.
Investment earnings attributable to the Reserve Account
Property shall not be available to satisfy the subordination provisions of this
Agreement and shall not otherwise be subject to any claims or rights of the
Certificateholders or the Servicer. All such investments shall be made in the
name of the Trustee or its nominee, as collateral agent, and all net income and
gain realized thereon shall be solely for the benefit of the Seller and shall be
payable by the Trustee to the Seller on each Distribution Date. Realized losses,
if any, on investments of the Reserve Account Property shall be charged first
against undistributed investment earnings attributable to the Reserve Account
Property and then against the Reserve Account Property.
(e) With respect to the Reserve Account Property, the Seller,
on behalf of itself, its successors and assigns, and the Trustee agree that:
(i) Any Reserve Account Property that is held in deposit
accounts shall be held solely in the name of the Trustee, as
collateral agent, at an Eligible Institution. Each such deposit
account shall be subject to the exclusive custody and control of the
Trustee, and the Trustee shall have sole signature authority with
respect thereto.
(ii) Any Reserve Account Property that constitutes
Physical Property shall be delivered to the Trustee, as collateral
agent, in accordance with paragraph (a) of the definition of
"Delivery" and shall be held, pending maturity or disposition, solely
by the Trustee, as collateral agent, or a securities intermediary (as
such term is defined in Section 8-102(14) of the UCC) acting solely
for the Trustee, as collateral agent.
(iii) Any Reserve 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
Trustee, as collateral agent, pending maturity or disposition, through
continued book-entry registration of such Reserve Account Property as
described in such paragraph.
(iv) Any Reserve Account Property that is an
"uncertificated security" under Section 8-102(18) of the UCC and that
is not governed by clause (C) above shall be delivered to the Trustee,
as collateral agent, in accordance with paragraph (c) of the
definition of "Delivery" and shall be maintained by the Trustee, as
collateral agent, pending maturity or disposition, through continued
registration of the Trustee's (or its
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custodian's or its nominee's) ownership of such security, in its
capacity as collateral agent.
Effective upon Delivery of any Reserve Account Property in the
form of Physical Property, book-entry securities or uncertificated securities,
the Trustee shall be deemed to have purchased such Reserve Account Property for
value, in good faith and without notice of any adverse claim thereto.
(f) Each of the Seller and the Servicer agrees to take or
cause to be taken such further actions, to execute, deliver and file or cause to
be executed, delivered and filed such further documents and instruments
(including any UCC financing statements or this Agreement) as may be determined
to be necessary in an Opinion of Counsel to the Seller delivered to the Trustee
in order to perfect the interests created by this Section and otherwise fully to
effectuate the purposes, terms and conditions of this Section. The Seller shall:
(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates, and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of the Trustee's security interest; and
(ii) file the necessary financing statements or amendments
thereto within five days, and promptly notify the Trustee of any such
filing, after the occurrence of any of the following: (1) any change
in its corporate name or any trade name; (2) any change in the
location of its chief executive office or principal place of business;
and (3) any merger or consolidation or other change in its identity or
corporate structure and promptly notify the Trustee of any such
filings.
(g) The Trustee shall not enter into any subordination or
inter-creditor agreement with respect to the Reserve Account Property.
(h) Following the payment in full of the Certificate Balance
and of all other amounts owing or to be distributed under this Agreement to
Certificateholders and the termination of the Trust, any amount remaining on
deposit in the Reserve Account shall be distributed to the Seller.
Section 5.08 STATEMENTS TO CERTIFICATEHOLDERS. On each
Distribution Date, the Servicer shall provide to the Trustee for the Trustee to
forward to each Certificateholder of record as of the most recent Record Date, a
statement setting forth at least the following information as to each Class of
Certificates to the extent applicable:
(i) the amount of such distribution allocable to principal
of each class of Certificates;
(ii) the amount of such distribution allocable to interest
of each class of Certificates;
(iii) the Pool Balance as of the close of business on the
last day of the preceding Collection Period;
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(iv) the Class [A] Certificate Balance and Class [B]
Certificate Balance and the Class [A] Pool Factor and Class [B] Pool
Factor after giving effect to all payments reported under clause (i)
above on such date;
(v) the amount of the Servicing Fee paid to the Servicer
with respect to the related Collection Period or Collection Periods,
as the case may be;
(vi) the amount of the Class [A] Principal Carryover
Shortfall and Class [A] Interest Carryover Shortfall and Class [B]
Principal Carryover Shortfall and Class [B] Interest Carryover
Shortfall, as applicable, if any, on such Distribution Date and the
change in the Class [A] Principal Carryover Shortfall and Class [A]
Interest Carryover Shortfall and Class [B] Principal Carryover
Shortfall and Class [B] Interest Carryover Shortfall, as applicable,
from the preceding Distribution Date;
(vii) the amount of aggregate Realized Losses, if any,
for the second preceding Collection Period;
(viii) the aggregate Purchase Amounts for Receivables,
if any, that were repurchased in such period;
(ix) the amount otherwise distributable to the Class [B]
Certificateholders that is distributed to Class [A] Certificateholders
on such Distribution Date;
(x) the balance of the Reserve Account on such
Distribution Date, after giving effect to deposits and withdrawals
made on such Distribution Date;
(xi) the aggregate Payahead Balance and the change in
such balance from the preceding Distribution Date;
(xii) for Distribution Dates during the Funding Period
(if any), the remaining Pre-Funded Amount; and
(xiii) for the first Distribution Date that is on or
immediately following the end of the Funding Period (if any), the
amount of any remaining Pre-Funded Amount that has not been used to
fund the purchase of Subsequent Receivables and is passed through as
payments of principal of the Certificates.
Each amount set forth pursuant to subclauses (i), (ii), (v) or (vi) above shall
be expressed as a dollar amount per $1,000 of original principal balance of a
Class [A] or Class [B] Certificate, as applicable.
Section 5.09 TAX RETURNS. The Trustee shall deliver to each
Holder of a Certificate, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable each Holder to
prepare its federal and state income tax returns.
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Section 5.10 NET DEPOSITS. As an administrative convenience,
unless the Servicer is required to remit collections daily, the Servicer will be
permitted to make the deposit of collections on the Receivables, aggregate
Advances and Purchase Amounts for or with respect to each Collection Period net
of distributions to be made to the Servicer with respect to such Collection
Period. The Servicer, however, will account to the Trustee and to the
Certificateholders as if all deposits, distributions and transfers were made
individually.
ARTICLE VI.
The Certificates
Section 6.01 THE CERTIFICATES. Unless otherwise specified in
this Agreement, the Certificates shall be issued in fully registered form in
minimum denominations of $1,000. The Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of an authorized officer of the
Trustee. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the
benefit of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of authentication
and delivery of such Certificates.
A transferee of a Certificate shall become a Certificateholder
and shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 6.03.
Section 6.02 AUTHENTICATION OF CERTIFICATES. The Trustee shall
cause the Certificates to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Depositor, signed by its chairman
of the board, its president, any vice president, secretary, or assistant
treasurer, without further corporate action by the Depositor, in authorized
denominations, pursuant to this Agreement. No Certificate shall entitle its
Holder to any benefit under this Agreement or shall be valid for any purpose
unless there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A or Exhibit B, as appropriate,
executed by the Trustee by manual signature. Such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 6.03 REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 6.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Unless otherwise specified in this
Agreement, the Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Trustee shall execute, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like
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aggregate amount dated the date of authentication by the Trustee. At the option
of a Holder, Certificates may be exchanged for other Certificates of authorized
denominations of a like aggregate amount upon surrender at the Corporate Trust
Office of the Certificates to be exchanged.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder or such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer and exchange shall be
cancelled and subsequently disposed of by the Trustee.
No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
Section 6.04 MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate has been acquired by a bona
fide purchaser, the Trustee on behalf of the Trust shall execute, and the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section, the Trustee and the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of ownership in
the Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.05 PERSONS DEEMED OWNERS. Prior to due presentation
of a Certificate for registration of transfer, the Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.06 and for all other purposes whatsoever, and neither the
Trustee nor the Certificate Registrar shall be bound by any notice to the
contrary.
Section 6.06 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee shall furnish or cause to be furnished to the Servicer,
within 15 days after receipt by the Trustee of a request therefor from the
Servicer in writing, a list, in such form as the Servicer may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date. If three or more Certificateholders, or one or more Holders
of Class [A] Certificates evidencing not less than 25% of the Certificate
Balance apply in writing to the Trustee, and such application states that the
applicants desire to communicate with other Certificateholders with respect to
their rights under this Agreement or under the Certificates and such application
shall be accompanied by a copy of the communication that such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
for such
34
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed to hold neither the Servicer nor the
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 6.07 MAINTENANCE OF OFFICE OR AGENCY. The Trustee
shall maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustee in respect of the Certificates and this Agreement may be served. The
Trustee initially designates the Corporate Trust Office as specified in this
Agreement as its office for such purposes. The Trustee shall give prompt written
notice to the Servicer and to Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
Section 6.08 BOOK-ENTRY CERTIFICATES. The Class [A]
Certificates and, if so specified in this Agreement, the Class [B] Certificates
may be issued in the form of one or more typewritten Certificates representing
Book-Entry Certificates, to be delivered by, or on behalf of, the Depositor to
the initial Clearing Agency, which, unless otherwise specified in this
Agreement, shall be The Depository Trust Company. In such case, the Certificates
delivered to the Depository Trust Company shall initially be registered on the
Certificate Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Certificates, except as
provided in Section 6.10. Unless and until definitive, fully registered
Certificates (the "Definitive Certificates") have been issued to such
Certificate Owners pursuant to Section 6.10:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Depositor, the Servicer, the Certificate
Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on such Certificates)
as the sole Holder of such Certificates and shall have no obligation
to the related Certificate Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions
of this Section shall control;
(iv) the rights of such Certificate Owners shall be
exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Certificate
Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.10, the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit distributions of
principal and interest on such Certificates to such Clearing Agency
Participants; and
(v) whenever this Agreement requires or permits actions
to be taken based upon instructions or directions of Holders of
Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent
35
such percentage only to the extent that it has received instructions
to such effect from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in such Certificates and has
delivered such instructions to the Trustee.
Section 6.09 NOTICES TO CLEARING AGENCY. Whenever notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to Certificate
Owners pursuant to Section 6.10, the Trustee and the Servicer shall give all
such notices and communications specified herein to be given to Certificate
Owners to the Clearing Agency.
Section 6.10 DEFINITIVE CERTIFICATES. If (i) the Servicer
advises the Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities under the Depository Agreement
and the Trustee or the Depositor is unable to locate a qualified successor, (ii)
the Depositor at its option advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Certificate Owners representing beneficial
interests aggregating not less than a majority of the aggregate outstanding
principal amount of the Book-Entry Certificates advise the Trustee and the
Clearing Agency in writing that the continuation of a book-entry system through
the Clearing Agency is no longer in the best interests of the Certificate
Owners, then the Clearing Agency shall notify all Certificate Owners and the
Trustee of the occurrence of such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the typewritten Certificates representing the Book-Entry Certificates
by the Clearing Agency, accompanied by registration instructions, the Trustee
shall execute and authenticate the Definitive Certificates in accordance with
the instructions of the Clearing Agency. None of the Depositor, the Certificate
Registrar or the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, the Trustee
shall recognize the Holders of the Definitive Certificates as Certificateholders
hereunder. The Definitive Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Trustee, as evidenced by its execution thereof.
ARTICLE VII.
The Depositor
Section 7.01 REPRESENTATIONS OF DEPOSITOR. The Depositor makes
the following representations on which the Trustee shall be deemed to have
relied in accepting the Receivables in trust and executing and authenticating
the Certificates. The representations speak as of the execution and delivery of
this Agreement and as of the Closing Date, in the case of Initial Receivables
and as of the applicable Subsequent Transfer Date, in the case of Subsequent
Receivables, if any, and shall survive the sale of the Receivables to the
Trustee.
(i) 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 Oregon, with power and authority to own its
properties and to conduct its business as
36
such properties are currently owned and such business is presently
conducted, and had at all relevant times, and has, the corporate
power, authority and legal right to acquire and own the Receivables.
(ii) 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 in
which the ownership or lease of property or the conduct of its
business shall require such qualifications.
(iii) POWER AND AUTHORITY. The Depositor has the corporate
power and authority to execute and deliver this Agreement and to carry
out its 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 Trustee as part of the Trust, and the Depositor
shall have duly authorized such sale and assignment to the Trustee, as
applicable, by all necessary corporate action; and the execution,
delivery and performance of this Agreement and of each Subsequent
Transfer Assignment or Eligible Investment Transfer Assignment, as
applicable, shall have been duly authorized by the Depositor by all
necessary corporate action.
(iv) BINDING OBLIGATION. This Agreement, each Subsequent
Transfer Assignment and Eligible Investment Transfer Assignment, when
executed and delivered by the Depositor, shall constitute legal, valid
and binding obligations of the Depositor enforceable in accordance
with their respective terms.
(v) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
and thereof do 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) a default under, the articles of incorporation or
bylaws of the Depositor, or any indenture, agreement 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 or
other instrument (other than pursuant to this Agreement); or violate
any law or, to the best of the Depositor's knowledge, any order, rule
or regulation applicable to the Depositor of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties.
(vi) NO PROCEEDINGS. To the Depositor's best knowledge,
there are no proceedings or investigations pending, or threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties: (i) asserting the invalidity of this Agreement or the
Certificates; (ii) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement; (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 the Certificates, or (iv) that might adversely affect the
federal income tax attributes of the Certificates.
37
Section 7.02 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 and each other
instrument or agreement necessary or appropriate to the proper administration of
this Agreement and the transactions contemplated hereby and thereby.
Section 7.03 LIABILITIES 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.
(i) The Depositor shall indemnify, defend and hold
harmless the Trustee and the Trust from and against any taxes that may
at any time be asserted against the Trustee or the Trust with respect
to the transactions contemplated in this Agreement, including any
sales, gross receipts, general corporation, tangible personal
property, privilege, or license taxes (but, in the case of the Trust,
not including any taxes asserted with respect to, and as the date of,
the sale of the Receivables to the Trust or the issuance and original
sale of the Certificates, or asserted with respect to ownership of the
Receivables, or federal or other income taxes arising out of the
distributions on the Certificates) and costs and expenses in defending
against the same.
(ii) The Depositor shall indemnify, defend and hold
harmless the Trustee and the Certificateholders from and against any
loss, liability or expense incurred by reason of (a) the Depositor's
willful misfeasance, bad faith or negligence in the performance of its
duties under this Agreement, or by reason of reckless disregard of its
obligations and duties under this Agreement, and (b) the Depositor's
or Trust's violation of federal or state securities laws in connection
with the offering and sale of the Certificates.
(iii) The Depositor shall indemnify, defend and hold
harmless the Trustee and its officers, directors, employees and agents
from and against all costs, expenses, losses, claims, damages and
liabilities arising out of or incurred in connection with the
acceptance or performance of the trusts and duties in this Agreement
contained, except to the extent that such cost, expense, loss, claim,
damage or liabilities shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the Trustee.
Indemnification under this Section shall survive the
resignation or removal of the Trustee and the termination of this Agreement and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Depositor shall have made any indemnity payments to the
Trustee pursuant to this Section and the Trustee thereafter shall collect any of
such amounts from others, the Trustee shall promptly repay such amounts to the
Depositor, without interest.
Section 7.04 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, DEPOSITOR. Any Person (a) into which the Depositor may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Depositor shall be a party or (c) which
38
may succeed to the properties and assets of the Depositor substantially as a
whole, which Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Depositor under this Agreement,
shall be the successor to the Depositor hereunder without the execution or
filing of any document or any further act by any of the parties to this
Agreement; provided, however, that (i) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.01 shall
have been breached and no Event of Default, and no event which, after notice or
lapse of time, or both, would become an Event of Default shall have happened and
be continuing, (ii) the Depositor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply with
this Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, (iii) the Rating
Agency Requirement shall have been satisfied with respect to such transaction
and (iv) the Depositor shall have delivered to the Trustee 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 fully to preserve and protect the interest of the
Trustee in the Receivables and reciting the details of such filings or (B) no
such action shall be necessary to preserve and protect such interest.
Notwithstanding anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (i), (ii), (iii) and (iv)
above shall be conditions to the consummation of the transactions referred to in
clauses (a), (b) or (c) above.
Section 7.05 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 not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement and that in its opinion may involve it in any
expense or liability.
Section 7.06 DEPOSITOR MAY OWN CERTIFICATES. The Depositor and
any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Depositor or an Affiliate thereof, except as otherwise provided
herein.
Section 7.07 NO TRANSFER OF EXCESS AMOUNTS. The Depositor
hereby covenants that, except as otherwise provided in this Agreement, it will
not transfer, pledge or assign to any Person any part of its right to receive
any amounts in excess of the Reserve Account Specified Amount pursuant to
Section 5.07(c) and (h) unless it has first delivered to the Trustee and each
Rating Agency an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that such transfer will not (i) adversely affect the status of
the Trust as a grantor trust pursuant to subpart E, part I of subchapter J of
the Code or (ii) cause the Reserve Account to be taxable as a corporation under
the Code. The Depositor shall give written notice to each Rating Agency of any
proposed transfer, pledge or assignment to any Person of all or any part of its
right to receive such excess amounts.
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ARTICLE VIII.
The Servicer
Section 8.01 REPRESENTATIONS OF SERVICER. The Servicer makes
the following representations on which the Trustee shall be deemed to have
relied in accepting the Receivables in trust and executing and authenticating
the Certificates. The representations speak as of the execution and delivery of
this Agreement and as of the Closing Date, in the case of the Initial
Receivables and as of the applicable Subsequent Transfer Date, in the case of
the Subsequent Receivables, if any, and shall survive the sale of the
Receivables to the Trustee.
(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) DUE QUALIFICATION. 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 to carry out their
respective terms; and the execution, delivery and performance of this Agreement
has been duly authorized by the Servicer by all necessary corporate action.
(d) BINDING OBLIGATION. This Agreement constitutes the legal,
valid and binding obligations of the Servicer enforceable in accordance with
their respective terms.
(e) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof and
thereof 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) a default
under, the articles of association or bylaws of the Servicer, or any indenture,
agreement 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 or other
instrument (other than this Agreement); or violate any law or, to the best of
the Servicer's knowledge, any order, rule or regulation applicable to the
Servicer of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the
Servicer or its properties.
(f) NO PROCEEDINGS. To the Servicer's best knowledge, there
are no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its
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properties: (i) asserting the invalidity of this Agreement or the Certificates,
(ii) seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement, (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 the Certificates, or (iv) relating to the
Servicer and which might adversely affect the federal income tax attributes of
the Certificates.
(g) NO INSOLVENT OBLIGORS. As of the related Cutoff Date, no
Obligor on a Receivable shall be shown on the Receivable Files as the subject of
a bankruptcy proceeding.
Section 8.02 INDEMNITIES OF SERVICER. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
(a) The Servicer shall defend, indemnify and hold harmless the
Trustee, the Trust, the Certificateholders and the Depositor 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 Asset.
(b) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Depositor, the Trust and the Certificateholders 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 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 U.S. Bank (or any successor thereto pursuant to
Section 8.03) as Servicer pursuant to Section 9.01, or a 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 Trustee)
pursuant to Section 9.02.
Indemnification under this Section shall survive the
resignation or removal of the Trustee or the termination of this Agreement and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant to
this Section and the recipient thereafter collects any of such amounts from
others, such Person shall promptly repay such amounts to the Servicer, without
interest.
Section 8.03 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SERVICER. Any Person (a) into which the Servicer may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Servicer shall be a party, (c) which may succeed to the properties and
assets of the Servicer substantially as a whole or (d) which may execute an
agreement of assumption to perform every obligation of the Servicer hereunder
shall be the successor to the Servicer under this Agreement without further act
on the part of any of the parties to this Agreement; provided, however, that (i)
immediately after giving effect to such transaction, no Event of Default and no
event which, after notice or lapse of time, or both, would become an Event of
Default shall have happened and be continuing, (ii) the Servicer shall have
41
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent provided
for in this Agreement relating to such transaction have been complied with,
(iii) the Rating Agency Condition shall have been satisfied with respect to such
transaction and (iv) the Servicer shall have delivered to the Trustee 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 fully to preserve and protect the
interest of the Trustee in the Receivables and reciting the details of such
filings or (B) no such action shall be necessary to preserve and protect such
interest. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii), (iii)
and (iv) above shall be conditions to the consummation of the transactions
referred to in clauses (a), (b) or (c) above.
Section 8.04 LIMITATION ON LIABILITY OF SERVICER AND OTHERS.
Neither the Servicer nor any of the directors, officers, employees or agents of
the Servicer shall be under any liability to the Trust or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties under this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising under this Agreement.
Except as provided in this Agreement, the Servicer shall not
be under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement and
the rights and duties of the parties to this Agreement and the interests of the
Certificateholders under this Agreement.
ARTICLE IX.
Default
Section 9.01 EVENTS OF DEFAULT. If any one of the following
events ("Events of Default") shall occur and be continuing:
(a) Any failure by the Servicer to deliver to the Trustee for
deposit to the Collection Account or the Distribution Account any proceeds or
payment required to be so delivered under the terms of the Certificates and this
Agreement that shall continue unremedied for a period of three Business Days
after written notice of such failure is received by the Servicer from the
Trustee or after discovery of such failure by an officer of the Servicer; or
(b) Failure by the Servicer or the Depositor, as the case may
be, duly to observe or to perform in any material respect any other covenants or
agreements of the Servicer
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or the Depositor (as the case may be) set forth in the Certificates or in this
Agreement, which failure shall (a) materially and adversely affect the rights of
Certificateholders and (b) continue unremedied for a period of 60 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given (1) to the Servicer or the Depositor (as the case may be)
by the Trustee or (2) to the Servicer or the Depositor (as the case may be) and
to the Trustee by the Holders of Class [A] Certificates evidencing not less than
25% of the Class [A] Certificate Balance; or
(c) The occurrence of an Insolvency Event with respect to the
Servicer or the Depositor;
then, and in each and every case, so long as the Event of Default shall not have
been remedied, either the Trustee or the Holders of Class [A] Certificates
evidencing not less than 25% of the Class [A] Certificate Balance, by notice
then given in writing to the Servicer (and to the Trustee if given by
Certificateholders) may terminate all of the rights and obligations (other than
the obligations set forth in Section 8.02) of the Servicer under this Agreement.
On or after the receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Agreement, whether with respect to the
Certificates or the Receivables or otherwise, shall, without further action,
pass to and be vested in the Trustee or such successor Servicer as may be
appointed under Section 9.02; and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the predecessor
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivables and related documents,
or otherwise. The predecessor Servicer shall cooperate with the successor
Servicer and the Trustee in effecting the termination of the responsibilities
and rights of the predecessor Servicer under this Agreement, including the
transfer to the successor Servicer for administration by it of all cash amounts
that shall at the time be held by the predecessor Servicer for deposit, or shall
thereafter be received with respect to any Receivable. All reasonable costs and
expenses (including attorneys' fees) incurred in connection with transferring
the Receivable Files to the successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section shall be paid by
the predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Upon receipt of notice of the occurrence of an Event of
Default, the Trustee shall give notice thereof to the Rating Agencies.
Section 9.02 APPOINTMENT OF SUCCESSOR. (a) Upon the Servicer's
receipt of notice of termination pursuant to Section 9.01 or the Servicer's
resignation in accordance with the terms of this Agreement, the predecessor
Servicer shall continue to perform its functions as Servicer under this
Agreement, in the case of termination, only until the date specified in such
termination notice or, if no such date is specified in a notice of termination,
until receipt of such notice and, in the case of resignation, until the later of
(x) the date 45 days from the delivery to the Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (y) the date upon which the predecessor Servicer
shall become unable to act as Servicer, as specified in the notice of
resignation and accompanying Opinion of Counsel. In the event of the Servicer's
termination hereunder, the Trustee shall appoint a successor Servicer, and the
successor Servicer shall accept its appointment by a written assumption in form
acceptable to the Trustee. In the event that a successor Servicer has not
43
been appointed at the time when the predecessor Servicer has ceased to act as
Servicer in accordance with this Section, the Trustee without further action
shall automatically be appointed the successor Servicer and shall be entitled to
the Servicing Fee. Notwithstanding the above, the Trustee shall, if it shall be
legally unable so to act, appoint, or petition a court of competent jurisdiction
to appoint, any established institution having a net worth of not less than
$100,000,000 and whose regular business shall include the servicing of [new and
used automobiles, light-duty trucks, motorcycles, recreational vehicles, vans,
minivans and/or sport utility vehicles] receivables as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the
Trustee acting as successor Servicer) shall be the successor in all respects to
the predecessor Servicer and shall be subject to all the responsibilities,
duties and liabilities arising thereafter relating thereto placed on the
predecessor Servicer and shall be entitled to the Servicing Fee and all of the
rights granted to the predecessor Servicer by the terms and provisions of this
Agreement.
(c) The Servicer may not resign unless it is prohibited from
serving as such by law.
Section 9.03 REPAYMENT OF ADVANCES. If the Servicer shall
change, the predecessor Servicer shall be entitled to receive reimbursement for
Outstanding Advances pursuant to Sections 5.03 and 5.04 with respect to all
Advances made by the predecessor Servicer.
Section 9.04 NOTIFICATION TO CERTIFICATEHOLDERS. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to this
Article XVIII, the Trustee shall give prompt written notice thereof to
Certificateholders and to the Rating Agencies.
Section 9.05 WAIVER OF PAST DEFAULTS. The Holders of Class [A]
Certificates evidencing not less than a majority of the Class [A] Certificate
Balance may, on behalf of all Holders of Certificates, waive any default by the
Servicer in the performance of its obligations hereunder and its consequences,
except a default in making any required deposits to or payments from the Trust
Accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
ARTICLE X.
The Trustee
Section 10.01 DUTIES OF TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Agreement and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs; provided, however, that if the
Trustee shall assume the duties of the Servicer pursuant to Section 9.02, the
Trustee in performing such duties shall use the degree of skill and attention
customarily exercised by a servicer with respect to automobile receivables that
it services for itself or others.
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(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and no
implied covenants or obligations shall be read into this Agreement
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Agreement; provided, however, that the Trustee shall examine
the certificates and opinions to determine whether or not they conform
to the requirements of this Agreement.
(c) The Trustee shall take and maintain custody of the
Schedule of Receivables included as an exhibit to this Agreement and shall
retain all Servicer's Certificates identifying Receivables that become Purchased
Receivables and Liquidated Receivables.
(d) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken in good faith in accordance with this
Agreement or at the direction of the Holders of Class [A] Certificates
evidencing not less than 25% of the Class [A] Certificate Balance relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Agreement;
(e) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of clause (d)
of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trustee Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to this Agreement.
(f) No provision of this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Section 10.02 CERTAIN MATTERS AFFECTING TRUSTEE. Except as
otherwise provided in Section 10.01:
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(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in any such document.
(b) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters or relating to this Agreement
or the Certificates shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it under this
Agreement in good faith and in accordance with such advice or opinion of such
counsel.
(c) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute, conduct
or defend any litigation under this Agreement at the request, order or direction
of any of the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that may be
incurred therein or thereby.
(d) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Agreement; provided, that
such conduct does not constitute willful misconduct, bad faith or negligence on
the part of the Trustee.
(e) The Trustee may execute any of the trusts or powers or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian, and the Trustee shall not be responsible for any
misconduct or negligence of any such agent, attorney or custodian appointed with
due care by it hereunder.
Section 10.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR
RECEIVABLES. The recitals contained herein and in the Certificates (other than
the certificate of authentication on the Certificates) shall be taken as the
statements of the Depositor or the Servicer, as the case may be, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates),
or of any Receivable or related document. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Receivable, or the perfection and priority of any security
interest created by any Receivable in any Financed Asset or the maintenance of
any such perfection and priority, or for or with respect to the efficacy of the
Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Financed Asset; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable or any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer with any warranty or
representation made under this Agreement or in any related document and the
accuracy of any such warranty or representation or any action of the Servicer
taken in the name of the Trustee.
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Section 10.04 TRUSTEE MAY OWN CERTIFICATES. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may deal with the Depositor and the Servicer in banking transactions with
the same rights as it would have if it were not Trustee.
Section 10.05 TRUSTEE'S FEES AND EXPENSES. The Servicer shall
pay to the Trustee, and the Trustee shall be entitled to receive, reasonable
compensation as shall have been separately agreed upon before the date of this
Agreement between the Seller and the Trustee (which shall not be limited by any
provision of law regarding the compensation of a trustee of an express trust)
for all services rendered by it in the execution of the trusts created by this
Agreement and in the exercise and performance of any of the Trustee's powers and
duties under this Agreement. The Trustee shall be entitled to be reimbursed by
the Seller for its reasonable expenses under this Agreement, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Trustee may employ in connection
with the exercise and performance of its rights and duties under this Agreement.
Section 10.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The
Trustee shall at all times be a corporation having an office in the same state
as the location of the Corporate Trust Office; organized and doing business
under the laws of such state or the United States of America; authorized under
such laws to exercise corporate trust powers; having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authorities; and having (or having a parent that has) a rating
of at least [Baa3] by [RATING AGENCY]. If such corporation shall publish reports
of condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 10.07.
Section 10.07 RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Servicer. Upon receiving such notice of
resignation, the Servicer shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.06 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Servicer
may remove the Trustee. If the Servicer shall remove the Trustee under the
authority of the immediately preceding sentence, the Servicer shall promptly
appoint a successor Trustee by written instrument, in duplicate, one copy
47
of which instrument shall be delivered to the outgoing Trustee so removed and
one copy to the successor Trustee, and shall pay all fees owed to the outgoing
Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to Section 10.08 and payment of all fees and expenses owed to the
outgoing Trustee. The Servicer shall provide notice of such resignation or
removal of the Trustee to each of the Rating Agencies.
Section 10.08 SUCCESSOR TRUSTEE. Any successor Trustee
appointed pursuant to Section 10.07 shall execute, acknowledge and deliver to
the Servicer and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Trustee. The predecessor
Trustee shall upon payment of its fees and expenses deliver to the successor
Trustee all documents and statements and monies held by it under this Agreement;
and the Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.06.
Upon acceptance of appointment by a successor Trustee pursuant
to this Section, the Servicer shall mail notice thereof to all
Certificateholders and to the Rating Agencies. If the Servicer shall fail to
mail such notice within 10 days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Servicer.
Section 10.09 MERGER OR CONSOLIDATION OF TRUSTEE. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 10.06, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. The Trustee shall mail
notice of any such merger or consolidation to the Rating Agencies
Section 10.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or any Financed Asset may at the time be located, the Servicer and
the Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust, and to vest in such Person, in such capacity
and for the benefit of the
48
Certificateholders, such title to the Trust or any part thereof and, subject to
the other provisions of this Section, such powers, duties, obligations, rights,
and trusts as the Servicer and the Trustee may consider necessary or desirable.
If the Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor Trustee
pursuant to Section 10.06 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.08.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred
or imposed upon any such separate trustee or co-trustee shall be
conferred upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed, the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) No trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) The Servicer and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Each such instrument shall be filed with the Trustee and a copy thereof
given to the Servicer.
Any separate trustee or co-trustee may at any time appoint the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor co-trustee or separate trustee.
49
Section 10.11 REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The
Trustee shall make the following representations and warranties on which the
Depositor and Certificateholders shall be deemed to rely:
(i) The Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of its place of
incorporation.
(ii) The Trustee has full corporate power, authority and
legal right to execute and deliver, and to perform its obligations
under, this Agreement, and shall have taken all necessary action to
authorize the execution and delivery of, and the performance of its
obligations under, this Agreement.
(iii) This Agreement shall have been duly executed and
delivered by the Trustee.
Section 10.12 NO BANKRUPTCY PETITION. The Trustee, by entering
into this Agreement, and each Certificateholder, by accepting a Certificate,
hereby covenant and agree that they will not at any time institute against, or
join any other Person in instituting against, the Depositor or the Trust any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any federal or state bankruptcy or similar
law in connection with the Certificates or this Agreement.
Section 10.13 TRUSTEE'S CERTIFICATE. On or as soon as
practicable after each Record Date as of which Receivables shall be assigned to
the Depositor or the Servicer pursuant to Section 10.14, the Trustee shall
execute a Trustee's Certificate, based on the information contained in the
Servicer's Certificate for the related Collection Period, amounts deposited to
the Collection Account and notices received pursuant to this Agreement,
identifying the Receivables repurchased by the Depositor pursuant to Section
3.02 or purchased by the Servicer pursuant to Section 4.07 or Section 11.02
during such Collection Period, and shall deliver such Trustee's Certificate,
accompanied by a copy of the Servicer's Certificate for such Collection Period,
to the Depositor or the Servicer, as applicable. The Trustee's Certificate
submitted with respect to such Distribution Date shall operate, as of such
Distribution Date, as an assignment, without recourse, representation or
warranty, to the Depositor or the Servicer, as applicable, of all the Trustee's
right, title and interest in and to any such Repurchased Receivable and to the
other property conveyed to the Trust with respect thereto, and all security and
documents relating thereto, such assignment being an assignment outright and not
for security.
Section 10.14 TRUSTEE'S ASSIGNMENT OF REPURCHASED RECEIVABLES.
With respect to all Receivables repurchased by the Depositor pursuant to Section
3.02 or purchased by the Servicer pursuant to Section 4.07 or Section 11.02, the
Trustee shall by a Trustee's Certificate assign, without recourse,
representation or warranty, to the Depositor or the Servicer, as applicable, all
the Trustee's right, title and interest in and to any such Receivable and the
other property conveyed to the Trust with respect thereto, and all security and
documents relating thereto, such assignment being an assignment outright and not
for security.
50
ARTICLE XI.
Termination
Section 11.01 TERMINATION OF THE TRUST. (a) The respective
obligations and responsibilities of the Depositor, the Servicer and the Trustee
created hereby and the Trust created by this Agreement shall terminate (i) upon
the payment to Certificateholders of all amounts required to be paid to them
pursuant to this Agreement and the disposition of all property held as part of
the Trust and (ii) at the time provided in Section 11.02; provided, however,
that in no event shall the trust created by this Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St.
James's, living on the date of this Agreement. The Servicer shall promptly
notify the Trustee of any prospective termination pursuant to this Section.
(b) Except as provided in Section 11.01(a), neither the
Depositor nor any Owner shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which Certificateholders shall surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation of the Certificates, shall be given by the Trustee by letter to
Certificateholders mailed not earlier than the 15th day and not later than the
25th day of the month next preceding the specified Distribution Date stating (A)
the Distribution Date upon which final payment of the Certificates shall be made
upon presentation and surrender of the Certificates at the office of the Trustee
therein designated, (B) the amount of such final payment and (C) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office of the Trustee therein specified. The Trustee shall give such notice to
the Certificate Registrar (if other than the Trustee) at the time such notice is
given to Certificateholders. Upon presentation and surrender of the
Certificates, the Trustee shall cause to be distributed to Certificateholders
amounts distributable on such Distribution Date pursuant to Section 5.06.
In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after such second notice all of the Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that shall
remain subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Trustee to the
Depositor.
Section 11.02 OPTIONAL PURCHASE OF ALL RECEIVABLES. On the
last day of any Collection Period as of which the Pool Balance shall be less
than or equal to [ ]% of the Original Pool Balance, the Servicer shall have the
option to purchase the corpus of the Trust; provided, however, that the Servicer
may not effect any such purchase if at such time the rating
51
of ____________'s long-term debt obligations is less than [Baa3] by [RATING
AGENCY], unless the Trustee shall have received an Opinion of Counsel to the
effect that such purchase would not constitute a fraudulent conveyance. To
exercise such option, the Servicer shall deposit an amount into the Collection
Account pursuant to Section 5.05 equal to the aggregate Purchase Amount for the
Receivables (including defaulted Receivables), plus the appraised value of any
other property held by the Trust, such value to be determined by an appraiser
mutually agreed upon by the Servicer and the Trustee. The Servicer thereafter
shall succeed to all interests in and to the Trust.
ARTICLE XII.
Miscellaneous Provisions
Section 12.01 AMENDMENT. This Agreement may be amended by the
Depositor, the Servicer and the Trustee, without the consent of 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 provision in this Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel delivered to
the Trustee, adversely affect in any material respect the interests of any
Certificateholder.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of Class
[A] Certificates and Class [B] Certificates (which consent shall be conclusive
and binding on such Holders and on all future Holders of such Certificates and
of any Certificates issued upon the transfer therefor or in exchange thereof or
in lieu thereof, whether or not notation of such consent is made upon the
Certificates), each voting as a class, evidencing not less than a majority of
the Class [A] Certificate Balance and Class [B] Certificate Balance,
respectively, 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 Certificateholders; provided, however, that no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made on any Certificate or (b) reduce
the aforesaid percentage of the Class [A] Certificate Balance and Class [B]
Certificate Balance required to consent to any such amendment without the
consent of the Holders of all Certificates then outstanding.
Promptly after the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Rating Agencies.
It shall not be necessary for the consent of
Certificateholders 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. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement) and of
evidencing the authorization of any action by Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
52
Prior to the execution of any amendment to this Agreement, the
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 this Section 12.01. The
Trustee may, but shall not be obligated to, enter into any such amendment that
affects the Trustee's own rights, duties or immunities under this Agreement or
otherwise.
Section 12.02 PROTECTION OF TITLE TO TRUST. (a) The Depositor
shall execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain and protect the interest of the
Certificateholders and the Trustee in the Receivables and in the proceeds
thereof. The Depositor shall deliver (or cause to be delivered) to the 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 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 Trustee at least 60 days' prior written notice of any
relocation of its principal executive office if, as a result of such relocation,
the applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement, and shall promptly file any such amendment or new financing
statement. The Servicer shall at all times maintain its principal executive
office and each office from which it shall service Receivables within the United
States of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Distribution
Account and Payahead Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that,
from and after the time of sale under this Agreement of the Receivables to the
Trustee, the Servicer's master computer records (including any back-up archives)
that refer to a Receivable shall indicate clearly the interest of the Trust, in
such Receivable, and that such Receivable is owned by the Trustee. Indication of
the Trustee's ownership of a Receivable shall be deleted from or modified on the
Servicer's computer systems when, and only when, such 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
automotive receivables to, any
53
prospective purchaser, lender or other transferee, the Servicer shall give to
such prospective purchaser, lender or other transferee computer tapes, records
or print-outs (including any restored from back-up archives) that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold and is owned by the Trustee.
(g) The Servicer shall permit the Trustee and its agents at
any time during normal business hours to inspect, audit and make copies of and
abstracts from the Servicer's records regarding any Receivable.
(h) Upon request, the Servicer shall furnish to the Trustee,
within five Business Days, a list of all Receivables (by contract number and
name of Obligor) then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of Receivables
from the Trust.
Section 12.03 SEPARATE COUNTERPARTS. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 12.04 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. (a)
The death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties to
this Agreement or any of them.
(b) No Certificateholder shall have any right to vote (except
as provided in Section 12.01 or 9.05) or in any manner otherwise control the
operation and management of the Trust or the obligations of the parties to this
Agreement; nor shall any provision in this Agreement or contained in the
Certificates be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken pursuant to any provision of this Agreement.
(c) No Certificateholder shall have any right to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Agreement, unless: (i) such Holder previously shall have given to the
Trustee written notice of a continuing Event of Default; (ii) the Holders of
Certificates evidencing not less than 25% of the Certificate Balance shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee under this Agreement and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby; (iii) the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity shall have neglected or refused to institute any such action, suit or
proceeding; and (iv) during such 60-day period no request or waiver inconsistent
with such written request shall have been given to the Trustee by Holders
representing a majority of the Certificate Balance. It is understood and
intended that no one or more Holders of Certificates shall have any right in any
manner whatever by virtue of, or by availing of, any provisions of this
Agreement to affect,
54
disturb or prejudice the rights of any other Holders of Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner provided in
this Agreement.
Section 12.05 GOVERNING LAW. This Agreement SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES UNDER This Agreement SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.06 NOTICES. All demands, notices and communications
upon or to the Depositor, the Servicer, the Trustee or the Rating Agencies under
this Agreement shall be in writing, personally delivered 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 National City Vehicle Receivables
Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇; (b) in the case of the Servicer, to National City Bank,
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
(▇▇▇) ▇▇▇-▇▇▇▇; (c) in the case of the Trustee, at the Corporate Trust Office;
(d) in the case of [RATING AGENCY], to [RATING AGENCY], [ADDRESS]; and (e) in
the case of [RATING AGENCY], to [RATING AGENCY] [ADDRESS], Attention: [ ]. Any
notice required or permitted to be mailed to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Certificateholder shall receive such notice.
Section 12.07 SEVERABILITY OF PROVISIONS. 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 of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 12.08 ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 7.04 and 8.03 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
without the prior written consent of the Trustee and the Holders of Certificates
evidencing not less than 66% of the Certificate Balance.
Section 12.09 CERTIFICATES NONASSESSABLE AND FULLY PAID.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever.
Section 12.10 LIMITATIONS ON RIGHTS OF OTHERS. The provisions
of this Agreement are solely for the benefit of the Depositor, the Servicer, the
Trustee and the Certificateholders, and nothing in this Agreement, whether
express or implied, shall be construed to give any other Person any legal or
equitable right, remedy or claim in respect of the Trust or under or in respect
of this Agreement or any covenants, conditions or provisions contained herein.
55
Section 12.11 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 12.12 NONPETITION COVENANTS. (a) Notwithstanding any
prior termination of this Agreement, the Servicer and the Depositor shall not,
prior to the date that is one year and one day after the termination of this
Agreement with respect to the Trust, acquiesce to, petition or otherwise invoke
or cause the Trust to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Trust under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or other
similar official of the Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Trust.
(b) Notwithstanding any prior termination of this Agreement,
the Servicer shall not, prior to the date that is one year and one day after the
termination of this Agreement with respect to the Depositor, acquiesce to,
petition or otherwise invoke or cause the Depositor to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Depositor under any federal or state bankruptcy, insolvency or
similar law, appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator, or other similar official of the Depositor or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Depositor.
* * *
56
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.
NATIONAL CITY VEHICLE RECEIVABLES INC.,
as Depositor
By:
-----------------------------------
Name:
Title:
[TRUSTEE], as Trustee
By:
-----------------------------------
Name:
Title:
NATIONAL CITY BANK, as Seller and Servicer
By:
-----------------------------------
Name:
Title:
57
EXHIBIT A
FORM OF CLASS [A] CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CLASS [A]
CERTIFICATE WILL BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS [B] CERTIFICATE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
--------------------------------------------------------------------------------
NUMBER $
--------------------------------------------------------------------------------
R- CUSIP NO.
--------------------------------------------------------------------------------
NATIONAL CITY AUTO RECEIVABLES TRUST 200_-_
[____]% ASSET BACKED CERTIFICATE, CLASS [A]
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of [retail installment sales contracts, retail
installment loans, purchase money notes or other notes] secured by [new and used
automobiles, light-duty trucks, motorcycles, recreational vehicles, vans,
minivans and/or sport utility vehicles] financed by those contracts.
(This Class [A] Certificate does not represent an interest in or obligation of
National City Vehicle Receivables Inc., except to the extent described below.)
THIS CERTIFIES THAT _______________________________________ is
the registered owner of [______________________________________] DOLLARS
nonassessable, fully-paid, fractional undivided interest in National City Auto
Receivables Trust 200_-_ (the "Trust") formed pursuant to the Pooling and
Servicing Agreement (the "Agreement") dated as of [_________________], among
National City Vehicle Receivables Inc., a Delaware corporation, as depositor
(the "Depositor"), National City Bank, as servicer (the "Servicer") and
[Trustee], a [_______] banking corporation, as trustee (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement.
This Certificate is one of a duly authorized series of
Certificates, designated as the [_____]% Asset Backed Certificates, Class [A]
(herein called the "Class [A] Certificates"), all
A-1
issued under the Agreement, to which Agreement reference is hereby made for a
statement of the respective rights and obligations thereunder of the Depositor,
the Servicer, the Trustee and Holders of the Certificates. The Class [A]
Certificates are subject to all terms of the Agreement.
The property of the Trust includes a pool of [retail
installment sales contracts, retail installment loans, purchase money notes or
other notes] secured by [new and used automobiles, light-duty trucks,
motorcycles, recreational vehicles, vans, minivans and/or sport utility
vehicles] (the "Receivables") financed by those contracts, all monies due under
such Receivables on or after the related Cutoff Date, in the case of Precomputed
Receivables, or received on or after the related Cutoff Date, in the case of
Simple Interest Receivables, security interests in the assets financed thereby,
certain bank accounts and the proceeds thereof, proceeds from claims on certain
insurance policies and all proceeds of the foregoing.
Under the Agreement, there will be distributed on the [______]
day of each month or, if such [______] day is not a Business Day, the next
Business Day (each, a "Distribution Date"), commencing on
[______________________], to the Person in whose name this Class [A] Certificate
is registered at the close of business on the first day of the month in which
such Distribution Date occurs (the "Record Date"), such Certificateholder's
fractional undivided interest in the amount to be distributed to Class [A]
Certificateholders on such Distribution Date.
It is the intent of the Depositor, the Servicer, the Trustee
and the Certificateholders that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Trust will be
treated as a grantor trust and the Certificates will be treated as interests in
a grantor trust. The Depositor, the Servicer, the Trustee and the
Certificateholders, by acceptance of a Certificate or of a beneficial interest
in a Certificate, as the case may be, agree to treat, and to take no action
inconsistent with the treatment of, the Certificates for such tax purposes as
interests in a grantor trust.
Distributions on this Class [A] Certificate will be made as
provided in the Agreement by the Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Class [A] Certificate or the making of any notation hereon,
except that with respect to Class [A] Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Except as otherwise provided in
the Agreement and notwithstanding the above, the final distribution on this
Class [A] Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class [A] Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this
Class [A] Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual signature, this
Class [A] Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
A-2
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Class [A] Certificate to be duly
executed.
Date: NATIONAL CITY AUTO RECEIVABLES
TRUST 200__-__
By: [TRUSTEE],
not in its individual capacity
but solely as Trustee,
By:
---------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A] Certificates referred to in the within-mentioned
Agreement.
Date:
[TRUSTEE],
as Trustee
By:
-----------------------------------
Authorized Signatory
A-3
(REVERSE OF CLASS [A] CERTIFICATE)
The Class [A] Certificates do not represent an obligation of,
or an interest in, the Depositor, the Servicer, the Trustee or any affiliates of
any of them, and no recourse may be had against such parties or their assets
except as expressly set forth or contemplated herein or in the Agreement. In
addition, this Class [A] Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections and recoveries with respect to the Receivables (and certain other
amounts), all as more specifically set forth herein and in the Agreement. A copy
of the Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Depositor and at
such other places, if any, designated by the Depositor.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer and the Trustee and the rights of the
Certificateholders at any time by the Depositor, the Servicer and the Trustee
with the consent of the Holders of Certificates evidencing not less than a
majority of the Certificate Balance. Any such consent by the Holder of this
Class [A] Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Certificate and of any Class [A] Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Class [A] Certificate. The Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Class [A] Certificate is
registerable in the Certificate Register upon surrender of this Class [A]
Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar maintained by the Trustee in the Borough of Manhattan, The
City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class [A] Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Agreement is [________________________________].
Except as provided in the Agreement, the Class [A]
Certificates are issuable only as registered certificates without coupons in a
minimum denomination of $[________]. As provided in the Agreement and subject to
certain limitations therein set forth, Class [A] Certificates are exchangeable
for new Class [A] Certificates of authorized denominations evidencing the same
aggregate denomination, as requested by the Holder surrendering the same. No
service charge will be made for any such registration of transfer or exchange,
but the Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the Person in whose name this
Class [A] Certificate is registered as the owner hereof for all purposes, and
none of the Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
A-4
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property held by the Trust. The Servicer of
the Receivables may at its option purchase the Trust property at a price
specified in the Agreement, and such purchase of the Receivables and other
property of the Trust will effect early retirement of the Certificates; however,
such right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to [__]% of the
Original Pool Balance.
A-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
-------------------------------------------------------------------------------
the within Class [A] Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing _________________________ to transfer said Class [A]
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
____________________________*/
Signature Guaranteed:
____________________________*/
-----------------------
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Class [A] Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
A-6
EXHIBIT B
FORM OF CLASS [B] CERTIFICATE
THIS CLASS [B] CERTIFICATE IS SUBORDINATE TO THE PRIOR RIGHTS OF THE CLASS [A]
CERTIFICATES IN ACCORDANCE WITH THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON THAT IS AN
EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1074, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1086, AS AMENDED (THE "CODE"), OR
ANY GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (COLLECTIVELY, A "PLAN") OR ANY PERSON
INVESTING THE ASSETS OF A PLAN EXCEPT AS PROVIDED IN THE AGREEMENT REFERRED TO
HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CLASS [B]
CERTIFICATE WILL BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS [B] CERTIFICATE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
--------------------------------------------------------------------------------
NUMBER $
--------------------------------------------------------------------------------
R- CUSIP NO.
--------------------------------------------------------------------------------
NATIONAL CITY AUTO RECEIVABLES TRUST 200_-_
[____]% ASSET BACKED CERTIFICATE, CLASS [B]
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of [retail installment sales contracts, retail
installment loans, purchase money notes or other notes] secured by [new and used
automobiles, light-duty trucks, motorcycles, recreational vehicles, vans,
minivans and/or sport utility vehicles] financed by those contracts.
(This Class [B] Certificate does not represent an interest in or obligation of
National City Vehicle Receivables Inc., except to the extent described below.)
THIS CERTIFIES THAT ____________________________________ is
the registered owner of [____________________________] DOLLARS nonassessable,
fully-paid, fractional undivided interest in National City Auto Receivables
Trust 200_-_ (the "Trust") formed pursuant to a Pooling and Servicing Agreement
(the "Agreement") dated as of [_________________], among National City Vehicle
Receivables Inc., a Delaware corporation, as depositor (the "Depositor"),
National City Bank, as servicer (the "Servicer") and [Trustee], a [Jurisdiction]
banking corporation, as trustee (the "Trustee"), a summary of certain of the
B-1
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement.
This Certificate is one of a duly authorized series of
Certificates, designated as the [____]% Asset Backed Certificates, Class [B]
(herein called the "Class [B] Certificates") all, issued under the Agreement, to
which Agreement reference is hereby made for a statement of the respective
rights and obligations thereunder of the Depositor, the Servicer, the Trustee
and Holders of the Certificates. The Class [B] Certificates are subject to all
terms of the Agreement.
The property of the Trust includes a pool of [retail
installment sales contracts, retail installment loans, purchase money notes or
other notes] secured by [new and used automobiles, light-duty trucks,
motorcycles, recreational vehicles, vans, minivans and/or sport utility
vehicles] (the "Receivables") financed by those contracts, all monies due under
such Receivables on or after [___________________], in the case of Precomputed
Receivables, or received on or after [__________________], in the case of Simple
Interest Receivables, security interests in the vehicles financed thereby,
certain bank accounts and the proceeds thereof, proceeds from claims on certain
insurance policies and all proceeds of the foregoing.
Under the Agreement, there will be distributed on the
[________] day of each month or, if such [_______] day is not a Business Day,
the next Business Day (each, a "Distribution Date"), commencing on
[______________________], to the Person in whose name this Class [B] Certificate
is registered at the close of business on the first day of the month in which
such Distribution Date occurs (the "Record Date"), subject to the prior rights
of the Class [A] Certificateholders, such Certificateholder's fractional
undivided interest in the amount to be distributed to Class [B]
Certificateholders on such Distribution Date.
It is the intent of the Depositor, the Servicer, the Trustee
and the Certificateholders that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Trust will be
treated as a grantor trust and the Certificates will be treated as interests in
a grantor trust. The Depositor, the Servicer, the Trustee and the
Certificateholders, by acceptance of a Certificate or of a beneficial interest
in a Certificate, as the case may be, agree to treat, and to take no action
inconsistent with the treatment of, the Certificates for such tax purposes as
interests in a grantor trust.
Distributions on this Class [B] Certificate will be made as
provided in the Agreement by the Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Class [B] Certificate or the making of any notation hereon,
except that with respect to Class [B] Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Except as otherwise provided in
the Agreement and notwithstanding the above, the final distribution on this
Class [B] Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Class [B] Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
B-2
Reference is hereby made to the further provisions of this
Class [B] Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual signature, this
Class [B] Certificate shall not entitle the Holder hereof to any benefit under
the Agreement or be valid for any purpose.
THIS CLASS [B] CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and
not in its individual capacity, has caused this Class [B] Certificate to be duly
executed.
Date: NATIONAL CITY AUTO RECEIVABLES
TRUST 200__-__
By: [TRUSTEE], not in its individual
capacity but solely as Trustee
By:
------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] Certificates referred to in the
within-mentioned Trust Agreement.
Date: [TRUSTEE], as Trustee
By:
------------------------------------
Authorized Signatory
B-4
(REVERSE OF CLASS [B] CERTIFICATE)
The Class [B] Certificates do not represent an obligation of,
or an interest in, the Depositor, the Servicer, the Trustee or any affiliates of
any of them, and no recourse may be had against such parties or their assets
except as expressly set forth or contemplated herein or in the Agreement. In
addition, this Class [B] Certificate is not guaranteed by any governmental
agency or instrumentality and is limited in right of payment to certain
collections and recoveries with respect to the Receivables (and certain other
amounts), all as more specifically set forth herein and in the Agreement. A copy
of the Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Depositor and at
such other places, if any, designated by the Depositor.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing not less than a majority of the Certificate Balance. Any such consent
by the Holder of this Class [B] Certificate shall be conclusive and binding on
such Holder and on all future Holders of this Class [B] Certificate and of any
Class [B] Certificate issued upon the transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent is made upon this Class
[B] Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
Except as provided in the Agreement, the Class [B]
Certificates are issuable only as registered certificates without coupons in a
minimum denominations of $[________]. As provided in the Agreement and subject
to certain limitations therein set forth, Class [B] Certificates are
exchangeable for new Class [B] Certificates of authorized denominations
evidencing the same aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the
Trustee or the Certificate Registrar may treat the Person in whose name this
Class [B] Certificate is registered as the owner hereof for all purposes, and
none of the Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Agreement and the disposition of all property by the Trust. The Servicer of the
Receivables may at its option purchase the Trust property at a price specified
in the Agreement, and such purchase of the Receivables and other property of the
Trust will effect early retirement of the Class [B] Certificates; however, such
right of purchase is exercisable only as of the last day of any Collection
Period as of which the Pool Balance is less than or equal to [ ]% of the
Original Pool Balance.
B-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------------------------------------------------
(Please print or type name and address, including postal zip
code, of assignee)
------------------------------------------------------------------------------
the within Class [B] Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ to transfer said Class [B]
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
---------------------------------------
Signature Guaranteed:
____________________________*/
-----------------------
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Class [B] Certificate in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
B-6
EXHIBIT C
(FORM OF DEPOSITORY AGREEMENT)
Letter of Representations
(To be Completed by Issuer and Trustee)
(Name of Issuer)
(Name of Trustee)
----------------
(Date)
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re:
-----------------------------------------
--------------------------
(Issue Description)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to
certain matters relating to the above-referenced issue (the "Securities").
Trustee will act as trustee with respect to the Securities pursuant to a trust
indenture dated __, 200_ (the "Document"). _________________________________
(the "Underwriter") is distributing the Securities through The Depository Trust
Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit
at DTC, and to act in accordance with its Rules with respect to the Securities,
Issuer and Trustee make the following representations to DTC:
(1) Prior to closing on the Securities on ________________,
200_, there shall be deposited with DTC one Security certificate registered in
the name of DTC's nominee, Cede & Co., for each stated maturity of the
Securities in the face amounts set forth on Schedule A hereto, the total of
which represents 100% of the principal amount of such Securities. If, however,
the aggregate principal amount of any maturity exceeds $[ ] million, one
certificate will be issued with respect to each $[ ] million of principal amount
and an additional
C-1
certificate will be issued with respect to any remaining principal amount. Each
$[ ] million certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration of
transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
(2) In the event of any solicitation of consents from or
voting by holders of the Securities, Issuer or Trustee shall establish a record
date for such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall, to the extent possible, send notice of such
record date to DTC not less than 15 calendar days in advance of such record
date. Notices to DTC pursuant to this Paragraph by telecopy shall be sent to
DTC's Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, and receipt
of such notices shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC
pursuant to this Paragraph by mail or by any other means shall be sent to DTC's
Reorganization Department as indicated in Paragraph 4.
(3) In the event of a full or partial redemption, Issuer or
Trustee shall send a notice to DTC specifying: (a) the amount of the redemption
or refunding; (b) in the case of a refunding, the maturity date(s) established
under the refunding; and (c) the date such notice is to be mailed to Security
holders or published (the "Publication Date"). Such notice shall be sent to DTC
by a secure means (e.g., legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice is in
DTC's possession no later than the close of business on the business day before
or, if possible, two business days before the Publication Date. Issuer or
Trustee shall forward such notice either in a separate secure transmission for
each CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be sent to DTC's Call Notification Department at (▇▇▇) ▇▇▇-▇▇▇▇
or (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party shall
telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph by mail or
by any other means shall be sent to:
Manager; Call Notification Department
The Depository Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
C-2
(4) In the event of an invitation to tender the Securities,
notice by Issuer or Trustee to Security holders specifying the terms of the
tender and the Publication Date of such notice shall be sent to DTC by a secure
means in the manner set forth in the preceding Paragraph. Notices to DTC
pursuant to this Paragraph and notices of other corporate actions (including
mandatory tenders, exchanges, and capital changes) by telecopy shall be sent to
DTC's Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, and receipt
of such notices shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC
pursuant to the above by mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(5) All notices and payment advices sent to DTC shall contain
the CUSIP number of the Securities.
(6) Trustee shall send DTC written notice with respect to the
dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably 5, but
not less than 2, business days prior to such payment date. Such notices, which
shall also contain the current pool factor and Trustee contact's name and
telephone number, shall be sent by telecopy to DTC's Dividend Department at
(▇▇▇) ▇▇▇-▇▇▇▇, or if by mail or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(7) (NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND
CROSS OUT THE OTHER:) (The interest accrual period is record date to record
date.) (The interest accrual period is payment date to payment date.)
(8) Interest payments and principal payments that are part of
periodic principal-and-interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns in same-day funds on each payment date
(or the equivalent in accordance with existing arrangements between Issuer or
Trustee and DTC). Such payments shall be made payable to the order of Cede & Co.
Absent any other existing arrangements, such payments shall be addressed as
follows:
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇-▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(9) (NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND
CROSS OUT THE OTHER:)
Securities Eligible for DTC's Same-Day Funds Settlement
("SDFS") System. Other principal payments (redemption payments) shall be made in
same-day funds by Trustee in the manner set forth in the SDFS Paying Agent
Operating Procedures, a copy of which previously has been furnished to Trustee.
Securities Eligible for DTC's Next-Day Funds Settlement
("NDFS") System. Other principal payments (redemption payments) shall be made in
next-day funds by Trustee to Cede & Co., as nominee of DTC, or its registered
assigns, on each payment date. Such payments shall be made payable to the order
of Cede & Co., and shall be addressed as follows:
NDFS Redemptions Manager
Reorganization/Redemptions Department
The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(10) DTC may direct Issuer or Trustee to use any other number
or address as the number or address to which notices or payments of interest or
principal may be sent.
(11) In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's or
Trustee's invitation) necessitating a reduction in the aggregate principal
amount of Securities outstanding or an advance refunding of part of the
Securities outstanding, DTC, in its discretion: (a) may request Issuer or
Trustee to issue and authenticate a new Security certificate; or (b) may make an
appropriate notation on the Security certificate indicating the date and amount
of such reduction in principal except in the case of final maturity, in which
case the certificate will be presented to Issuer or Trustee prior to payment, if
required.
(12) In the event that Issuer determines that beneficial
owners of Securities shall be able to obtain certificated Securities, Issuer or
Trustee shall notify DTC of the availability of certificates. In such event,
Issuer or Trustee shall issue, transfer, and exchange certificates in
appropriate amounts, as required by DTC and others.
(13) DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Trustee (at which time DTC will confirm with Issuer or
Trustee the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Trustee shall cooperate fully with
DTC by taking appropriate action to make available one or more separate
certificates evidencing Securities to any DTC Participant having Securities
credited to its DTC accounts.
(14) Issuer: (a) understands that DTC has no obligation to,
and will not, communicate to its Participants or to any person having an
interest in the Securities any
C-4
information contained in the Security certificate(s); and (b) acknowledges that
neither DTC's Participants nor any person having an interest in the Securities
shall be deemed to have notice of the provisions of the Security certificates by
virtue of submission of such certificate(s) to DTC.
(15) Nothing herein shall be deemed to require Trustee to
advance funds on behalf of Issuer.
Notes: Very truly yours,
A. If there is a Trustee (as (Authorized Officer's Signature)
defined in this Letter of
Representations), Trustee as well as
Issuer must sign this Letter. If
there is no Trustee, in signing this ------------------------------------
Letter Issuer itself undertakes to (Issuer)
perform all of the obligations set
forth herein.
By:
---------------------------------
(Authorized Officer's Signature)
C-5
B. Schedule B contains
statements that DTC believes
accurately describe DTC, ---------------------------------------
the method of effecting (Trustee)
book-entry transfers of
securities distributed
through DTC, and certain
related matters.
By:
------------------------------------
(Authorized Officer's Signature)
[-------------------------------]
(Administrator)
By:
------------------------------------
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
----------------------------
cc: Underwriter
Underwriter's Counsel
C-6
SCHEDULE A
(Describe Issue)
CUSIP Principal Amount Maturity Date Interest Rate
----------------- -------------------- ---------------- ----------------
C-7
EXHIBIT D
FORM OF SERVICER'S CERTIFICATE
NATIONAL CITY AUTO RECEIVABLES TRUST 200__-__
[___]% Asset Backed Certificates, Class [A]
[___]% Asset Backed Certificates, Class [B]
Distribution Date:
Collection Period:
Under the Pooling and Servicing Agreement dated as of
[_____________] by and among National City Vehicle Receivables Inc., as
Depositor, National City Bank, as Servicer, and [Trustee], as Trustee, the
Servicer is required to prepare certain information each month regarding current
distributions to Certificateholders and the performance of the Trust during the
previous month. The information that is required to be prepared with respect to
the Distribution Date and Collection Period listed above is set forth below.
Certain of the information is presented on the basis of an original principal
amount of $[ ] per Class [A] Certificate or Class [B] Certificate, as
appropriate, and certain other information is presented based upon the aggregate
amounts for the Trust as a whole.
A. Information Regarding the Current Monthly Distribution.
1. Class [A] Certificates.
(a) The aggregate amount of the distribution
......................................................................
(b) The amount of the distribution set forth in
paragraph A.1.(a) above in respect of interest
$[__________]
(c) The amount of the distribution set forth in
paragraph A.1.(a) above in respect of principal
$[__________]
(d) The amount of the distribution set forth in
paragraph A.1.(a) above per $[ ] interest
$[__________]
D-1
(e) The amount of the distribution set forth in
paragraph A.1.(b) above per $[ ] interest
$[__________]
(f) The amount of the distribution set forth in
paragraph A.1.(c) above per $[ ] interest
$[__________]
2. Class [B] Certificates.
(a) The aggregate amount of the distribution
.................................................................................
$[__________]
(b) The amount of the distribution set forth in
paragraph A.2(a) above in respect of
interest $[_________]
(c) The amount of the distribution set forth in
paragraph A.2(a) above in respect of principal
$[__________]
(d) The amount of the distribution set forth in
paragraph A.2(a) above per $[ ] interest
$[__________]
(e) The amount of the distribution set forth in
paragraph A.2(b) above per $[ ] interest
$[__________]
(f) The amount of the distribution set forth in
paragraph A.2(c) above per $[ ] interest
$[__________]
D-2
B. Information Regarding the Performance of the Trust.
1. Pool Balance and Certificate Balances.
(a) The Pool Balance close of business on the last
day of the preceding Collection Period $[________]
(b) The Class [A] Certificate Balance as of the
close of business on the last day of the
preceding Collection Period, after giving
effect to payments allocated to principal
set forth in Paragraph A. [_________]
(c) The Class [B] Certificate Balance as of the
close of business of the last day of the
preceding Collection Period, after giving
effect to payments allocated to principal
set forth in paragraph A.2(c) above $[_________]
(d) The Class [A] Pool Factor and the
Class [B] Pool Factor as of the close
of business on the last day of the
.................................................................................
2. Servicing Fee and Advances.
(a) The aggregate amount of the Servicing
Fee paid to the Servicer with respect
to the preceding Collection Period $[_________]
(b) The amount of such Servicing Fee per
.................................................................................
(c) The amount of any unpaid Servicing Fee $[_________]
(d) The change in the amount of any unpaid
Servicing Fee from the previous
.................................................................................
(e) Aggregate Advances on such
.................................................................................
D-3
3. Payment Shortfalls.
(a) The amount of the Class [A] Interest Carryover
Shortfall after giving effect to the payments
set forth in paragraph A.1(b) above $[_________]
(b) The amount of the Class [A] Principal Carryover
Shortfall after giving effect to the payment
set forth in paragraph A.1(c) above $[_________]
(c) The amount of the Class [B] Interest Carryover
Shortfall after giving effect to the payments
set forth in paragraph A.2(b) above $[_________]
(d) The amount of the Class [B] Principal Carryover
Shortfall after giving effect to the payments
set forth in paragraph A.2(c) above $[_________]
(e) The amount otherwise distributable to
Class [B] Certificateholders that is distributed
................................................................................
4. Payahead Account.
(a) The aggregate Payahead Balance $[_________]
(b) The change in the Payahead Balance from
................................................................................
5. Reserve Account.
(a) The Reserve Account balance after
giving effect to distributions made on
.................................................................................
D-4
(b) The change in the Reserve Account
.................................................................................
D-5
SCHEDULE A
SCHEDULE OF RECEIVABLES
D-6
SCHEDULE B
LOCATION OF RECEIVABLE FILES
D-7