MERCEDES-BENZ AUTO RECEIVABLES TRUST 2016-1, as Issuer, DAIMLER RETAIL RECEIVABLES LLC, as Depositor, and MERCEDES-BENZ FINANCIAL SERVICES USA LLC, as Seller and as Servicer SALE AND SERVICING AGREEMENT Dated as of September 1, 2016...

DAIMLER RETAIL RECEIVABLES LLC,
as Depositor,

 

and

 

MERCEDES-BENZ FINANCIAL SERVICES USA LLC,
as Seller and as Servicer

 

_____________________________________

---

TABLE OF CONTENTS

Page

ARTICLE ONE

DEFINITIONS

ARTICLE TWO

CONVEYANCE OF TRUST PROPERTY

ARTICLE THREE

ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY

Page

ARTICLE FOUR

DISTRIBUTIONS; RESERVE FUND;

STATEMENTS TO SECURITYHOLDERS

ARTICLE FIVE

THE DEPOSITOR

ARTICLE SIX

THE SERVICER

Page

ARTICLE SEVEN

SERVICER TERMINATION EVENTS

ARTICLE EIGHT

TERMINATION

ARTICLE NINE

EXCHANGE ACT REPORTING

ARTICLE TEN

MISCELLANEOUS

Page

SCHEDULES

EXHIBITS

APPENDICES

This SALE AND SERVICING AGREEMENT, dated as of September 1, 2016 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is among DAIMLER RETAIL RECEIVABLES LLC, a Delaware limited liability company (the “Depositor”), MERCEDES-BENZ FINANCIAL SERVICES USA LLC, a Delaware limited liability company (“MBFS USA”), as seller (in such capacity, the “Seller”) and as servicer (in such capacity, the “Servicer”), and MERCEDES-BENZ AUTO RECEIVABLES TRUST 2016-1, a Delaware statutory trust, as issuer (the “Issuer”).

 

WHEREAS, the Issuer desires to purchase from the Depositor a pool of receivables arising in connection with motor vehicle installment sales contracts and installment loans (the “Receivables”) purchased or originated by the Seller in the ordinary course of its business and sold to the Depositor;

 

WHEREAS, the Depositor is willing to sell the Receivables to the Issuer pursuant to the terms hereof; and

 

WHEREAS, the Servicer is willing to service the Receivables pursuant to the terms hereof.

 

NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:

 

ARTICLE ONE

DEFINITIONS

 

Section 1.01.  Capitalized Terms; Rules of Usage.  Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in Appendix A.  Appendix A also contains rules as to usage applicable to this Agreement.

 

ARTICLE TWO

CONVEYANCE OF TRUST PROPERTY

 

Section 2.01.  Conveyance of Trust Property.

 

(a)   In consideration of the Issuer’s delivery to or upon the order of the Depositor on the Closing Date of authenticated Notes, in authorized denominations in an aggregate principal amount equal to the Initial Note Balance, and authenticated Certificates, the Depositor hereby irrevocably sells, transfers, assigns and otherwise conveys to the Issuer, without recourse (subject to the obligations of the Depositor set forth herein), all right, title and interest of the Depositor, whether now owned or existing or hereafter acquired or arising, and wheresoever located, in, to and under the following:

 

 

 

 

 

 

 

 

 

 

 

 

including all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all accounts, accounts receivable, general intangibles, chattel paper, documents, money, investment property, deposit accounts, letters of credit, letter of credit rights, insurance proceeds, condemnation awards, notes, drafts, acceptances, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property which at any time constitutes all or part of, or is included in, the proceeds of any of the foregoing.

 

 

 

Section 2.02.  Representations and Warranties of the Seller as to the Receivables

 

.  The Seller has made, in the Receivables Purchase Agreement, each of the representations and warranties as to the Receivables set forth in Exhibit A.  The Issuer shall be deemed to have relied on such representations and warranties in accepting the Receivables.  Such representations and warranties speak as of the date of execution and delivery of this Agreement and as of the Closing Date, except to the extent otherwise provided, but shall survive the sale, transfer, assignment and conveyance of the Receivables to the Issuer pursuant to this Agreement and the pledge of the Receivables to the Indenture Trustee pursuant to the Indenture.  Pursuant to Section 2.01(a), the Depositor has sold, transferred, assigned and otherwise conveyed to the Issuer, as part of the Trust Property, its rights under the Receivables Purchase Agreement, including its right to require the Seller to repurchase Receivables in accordance with the Receivables Purchase Agreement upon a breach of such representations and warranties.

 

The Seller hereby agrees that the Issuer shall have the right to enforce any and all rights of the Depositor under the Receivables Purchase Agreement assigned to the Issuer under this Agreement, including the right to require the Seller to repurchase Receivables in accordance with the Receivables Purchase Agreement upon a breach of the representations and warranties set forth in Exhibit A, directly against the Seller as though the Issuer were a party to the Receivables Purchase Agreement and that the Issuer shall not be obligated to enforce any such right indirectly through the Depositor.

 

 

 

Section 2.03.  Representations and Warranties of the Depositor as to the Receivables.  The Depositor makes the following representations and warranties as to the Receivables on which the Issuer shall be deemed to have relied in accepting the Receivables.  The representations and warranties speak as of the date of execution and delivery of this Agreement and as of the Closing Date, except to the extent otherwise provided, but shall survive the sale, transfer, assignment and conveyance of the Receivables to the Issuer pursuant to this Agreement and the pledge of the Receivables to the Indenture Trustee pursuant to the Indenture.

 

 

 

 

 

Section 2.04.  Representations and Warranties as to Security Interests.  The Depositor makes the following representations and warranties as to the Receivables on which the Issuer shall be deemed to have relied in accepting the Receivables.  The representations and warranties speak as of the date of execution and delivery of this Agreement and as of the Closing Date, except to the extent otherwise provided, but shall survive the sale, transfer, assignment and conveyance of the Receivables to the Issuer pursuant to this Agreement and the pledge of the Receivables to the Indenture Trustee pursuant to the Indenture.

 

 

 

 

 

 

 

 

 

 

Notwithstanding the foregoing, the representations and warranties set forth in this Section may not be waived.  The representations and warranties set forth in this Section will survive the termination of this Agreement until the Indenture has been discharged.

 

Section 2.05.  Repurchase of Receivables Upon Breach.

 

 

 

 

 

 

 

Section 2.06.  Custody of Receivable Files.

 

 

 

 

 

 

 

 

 

Section 2.07.  Duties of Servicer as Custodian.

 

 

 

 

 

 

 

Indenture Trustee may reasonably designate.  The Servicer shall not be responsible for any loss occasioned by the failure of the Indenture Trustee to return any document or any delay in so doing.

 

 

Section 2.08.  Instructions; Authority to Act.  The Servicer shall be deemed to have received proper instructions with respect to the Receivable Files upon its receipt of written instructions signed by a Responsible Officer of the Indenture Trustee.  A certified copy of excerpts of authorizing resolutions of the board of directors of the Indenture Trustee shall constitute conclusive evidence of the authority of any such Responsible Officer to act and shall be considered in full force and effect until receipt by the Servicer of written notice to the contrary given by the Indenture Trustee.

 

Section 2.09.  Indemnification by Custodian.  The Servicer, in its capacity as custodian of the Receivable Files, shall indemnify and hold harmless the Issuer, the Trustees and each of their respective officers, directors, employees and agents from and against any and all Expenses that may be imposed on, incurred or asserted against the Issuer, the Trustees and each of their respective officers, directors, employees and agents as the result of any improper act or omission in any way relating to the maintenance and custody of the Receivable Files by the Servicer, as custodian, including any Expenses incurred by the relevant party in connection with the enforcement of the Servicer’s indemnification or other obligations hereunder; provided, however, that the Servicer shall not be liable for any portion of any such Expenses resulting from the willful misfeasance, bad faith or negligence of either Trustee.

 

Section 2.10.  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 the Servicer shall resign as Servicer under Section 6.05, or if all of the rights and obligations of the Servicer shall have been terminated under Section 7.01, the appointment of the Servicer as custodian hereunder may be terminated by (i) the Issuer, with the consent of the Indenture Trustee, (ii) Holders of Notes evidencing not less than 25% of the Note Balance of the Controlling Class or, if the Notes have been paid in full, by Certificateholders evidencing not less than 25% of the aggregate Certificate Percentage Interests then outstanding or (iii) the Indenture Trustee, with the consent of Holders of Notes evidencing not less than 25% of the Note Balance of the Controlling Class, in each case by notice then given in writing to the Depositor and the Servicer (with a copy to the Trustees if given by the Noteholders or the Certificateholders).  As soon as practicable after any termination of such appointment, the Servicer shall deliver, or cause to be delivered, the Receivable Files and the related accounts and records maintained by the Servicer to the Indenture Trustee, the Indenture Trustee’s agent or the Indenture Trustee’s designee, as the case may be, at such place as the Indenture Trustee may reasonably designate or, if the Notes have been paid in full, at such place as the Owner Trustee may reasonably designate.

 

ARTICLE THREE


ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY

 

Section 3.01.  Duties of Servicer.  The Servicer, acting alone or through one or more subservicers to the extent permitted hereunder, for the benefit of the Issuer, shall manage, service, administer and make collections on the Receivables with reasonable care but in no event less than the care that the Servicer exercises with respect to all comparable motor vehicle installment sales contracts and installment loans that it services for itself or others.  The Servicer’s duties shall include collection and posting of all payments, responding to inquiries of Obligors or by Governmental Authorities with respect to the Receivables, investigating delinquencies, sending payment coupons to Obligors, reporting tax information to Obligors in accordance with its customary practices, policing the collateral, accounting for collections and furnishing monthly and annual statements to the Trustees with respect to distributions, providing collection and repossession services in the event of an Obligor default, generating federal income tax information and performing the other duties specified herein.  The Servicer shall have full power and authority to do any and all things in connection with such managing, servicing, administration and collection that it may deem necessary or desirable, it being understood, however, that the Servicer shall at all times remain responsible to the Issuer and the Indenture Trustee for the performance of its duties and obligations hereunder.  Subject to the foregoing and to Section 3.02, the Servicer shall follow its customary standards, policies, practices and procedures in performing its duties hereunder as Servicer.  Without limiting the generality of the foregoing, the Servicer shall be authorized and empowered to execute and deliver, on behalf of itself, the Depositor, the Issuer, the Trustees, the Securityholders or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Receivables and the Financed Vehicles.

 

The Servicer is hereby authorized to commence, in its own name or in the name of the Issuer, a Proceeding to enforce a Receivable pursuant to Section 3.04 or to commence or participate in a Proceeding (including a bankruptcy Proceeding) relating to or involving a Receivable, including a Defaulted Receivable.  If the Servicer commences or participates in such a Proceeding in its own name, the Issuer shall thereupon be deemed to have automatically assigned, solely for the purpose of collection on behalf of the party retaining an interest in such Receivable, such Receivable and the other property conveyed to the Issuer pursuant to Section 2.01 with respect to such Receivable to the Servicer for purposes of commencing or participating in any such Proceeding as a party or claimant, and the Servicer is authorized and empowered by the Issuer to execute and deliver in the Servicer’s name any notices, demands, claims, complaints, responses, affidavits or other documents or instruments in connection with any such Proceeding.  If in any enforcement suit or Proceeding it shall be held that the Servicer may not enforce a Receivable on the grounds that it shall not be a real party in interest or a holder entitled to enforce such Receivable, the Owner Trustee shall, at the Servicer’s expense and written direction, take steps to enforce such Receivable, including bringing suit in the Servicer’s or the Issuer’s name or the name of the Owner Trustee, the Indenture Trustee, the Noteholders, the Certificateholders or any of them.

 

The Owner Trustee, on behalf of the Issuer, shall furnish the Servicer with any powers of attorney and other documents and take any other steps which the Servicer may deem necessary

 

 

 

or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder.  The Servicer, at its expense, shall obtain on behalf of the Issuer or the Owner Trustee all licenses, if any, required by the laws of any jurisdiction to be held by the Issuer or the Owner Trustee in connection with ownership of the Receivables and shall make all filings and pay all fees as may be required in connection therewith during the term of this Agreement.  The Servicer shall, or shall cause the Administrator to, prepare, execute and deliver all certificates or other documents required to be delivered by the Issuer pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or the rules and regulations promulgated thereunder.

 

Section 3.02.  Delegation of Duties; Subservicers.

 

 

 

 

 

Section 3.03.  Collection of Receivable Payments; Modification of Receivables.  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 otherwise act with respect to the Receivables and the other Trust Property in such manner as will, in the reasonable

 

 

 

judgment of the Servicer, maximize the amount to be received by the Issuer with respect thereto and in accordance with the standard of care required by Section 3.01.  The Servicer shall allocate collections on or in respect of the Receivables between principal and interest in accordance with the Simple Interest Method and the customary servicing practices and procedures it follows with respect to all comparable motor vehicle installment sales contracts and installment loans that it services for itself or others.  The Servicer shall not increase or decrease the number or amount of any Monthly Payment, except in response to a prepayment by the related Obligor, the Amount Financed under any Receivable or, except as may be required by Applicable Law, the APR of any Receivable, or extend, rewrite or otherwise modify the payment terms of any Receivable; provided, however, that the Servicer may extend the due date for one or more payments due on any Receivable for credit-related reasons that would be acceptable to the Servicer with respect to comparable motor vehicle installment sales contracts and installment loans that it services for itself or others and in accordance with its customary standards, policies, practices and procedures if the cumulative extensions with respect to any Receivable shall not cause the term of such Receivable to extend beyond the last day of the Collection Period immediately preceding the Class A‑4 Final Scheduled Payment Date.  If the Servicer fails to comply with the provisions of the preceding sentence, the Servicer shall be required to purchase each Receivable affected thereby for the related Purchase Amount as of the close of business on the last day of the Collection Period that includes the 30^th day after the Servicer becomes aware of such failure, by making such deposit in the manner specified in Section 3.08 on the Deposit Date immediately following such Collection Period.  The Servicer may, in its discretion (but only in accordance with its customary standards, policies, practices and procedures), waive any late payment charge or any other fee that may be collected in the ordinary course of servicing a Receivable.  In addition, in the event that any such extension of a Receivable modifies the terms of such Receivable in such a manner as to constitute a cancellation of such Receivable and the creation of a new motor vehicle receivable that results in a deemed exchange thereof within the meaning of Section 1001 of the Code, the Servicer shall purchase such Receivable pursuant to Section 3.08, and the Receivable created shall not be included in the Trust Property.

 

Section 3.04.  Realization Upon Receivables.

 

 

 

 

 

 

Section 3.05.  Maintenance of Physical Damage Insurance Policies.  The Servicer shall follow its customary standards, policies, practices and procedures to determine whether or not each Obligor shall have maintained physical damage insurance covering the related Financed Vehicle.  Each Receivable shall provide that the failure by the Obligor to obtain and maintain the required insurance is a default thereunder.  The Servicer shall not obtain force-placed insurance in respect of the Receivables.

 

Section 3.06.  Maintenance of Security Interests in Financed Vehicles.  The Servicer shall take such steps, in accordance with the standard of care required under Section 3.01, as are necessary to maintain perfection of the security interest created by each Receivable in the related Financed Vehicle.  The Issuer hereby authorizes the Servicer, and the Servicer hereby agrees, to take such steps as are necessary to re-perfect such security interest on behalf of the Issuer and the Indenture Trustee in the event the Servicer receives notice of, or otherwise has actual knowledge of, the fact that such security interest is not perfected as a result of the relocation of a Financed Vehicle or for any other reason.  In the event that the assignment of a Receivable to the Issuer is insufficient, without a notation on the related Financed Vehicle’s certificate of title, to grant to the Issuer a first priority perfected security interest in the related Financed Vehicle, the Servicer hereby agrees to serve as the agent of the Issuer for the purpose of perfecting the security interest of the Issuer in such Financed Vehicle and agrees that the Servicer’s listing as the secured party on the certificate of title is solely in its capacity as agent of the Issuer.  The Servicer shall not release, in whole or in part, any security interest in a Financed Vehicle created by the related Receivable except as permitted herein or in accordance with its customary standards, policies, practices and procedures.

 

Section 3.07.  Covenants of Servicer.  The Servicer makes the following covenants:

 

 

 

 

 

 

Section 3.08.  Purchase of Receivables Upon Breach.  The Depositor, the Seller, the Servicer or the Owner Trustee, as the case may be, shall inform the other parties to this Agreement and the Indenture Trustee promptly, in writing, upon the discovery of any breach of Section 3.03, 3.06 or 3.07.  If such breach shall not have been cured by the close of business on the last day of the Collection Period which includes the 30^th day after the date on which the Servicer becomes aware of, or receives written notice from the Depositor, the Seller or the Owner Trustee of, such breach, and such breach materially and adversely affects the interest of the Issuer in a Receivable, the Servicer shall purchase such Receivable from the Issuer, as of the close of business on the last day of the related Collection Period, by remitting the Purchase Amount of such Receivable to the Collection Account in the manner specified in Section 4.07 on the related Deposit Date.  When the Purchase Amount is included in Available Collections for a Payment Date, the Issuer will, without further action, be deemed to have sold and assigned to the Servicer, effective as of the last day of the Collection Period before the related Collection Period, all of the Issuer’s right, title and interest in the Receivable purchased by the Servicer under this Section and all security and documents relating to such Receivable.  The sale will not require any action by the Issuer and will be without recourse, representation or warranty by the Issuer except the representation that the Issuer owns such Receivable free and clear of any Lien, other than Permitted Liens.  On the sale, the Servicer may take any action necessary or advisable to evidence the sale of such Receivable, free from any Lien of the Issuer or the Indenture Trustee.  The sole remedy of the Issuer, the Trustees and the Securityholders with respect to a breach of Section 3.03, 3.06 or 3.07 shall be to require the Servicer to purchase Receivables pursuant to this Section.  Neither Trustee shall have any duty to conduct an affirmative investigation as to the occurrence of any condition requiring the purchase of any Receivable pursuant to this Section.

 

Section 3.09.  Servicing Compensation; Payment of Certain Expenses by Servicer.  The Servicer shall receive the Monthly Servicing Fee for servicing the Receivables.  As additional servicing compensation, the Servicer shall be entitled to receive or retain the Supplemental Servicing Fee.  The Servicer shall pay all expenses incurred by it in connection with the activities under this Agreement (including the Independent accountants and any subservicer, taxes imposed on the Servicer, expenses incurred in connection with distributions and reports to Securityholders and all other fees and expenses not expressly stated under this Agreement to be for the account of the Securityholders), except expenses incurred in realizing upon Receivables under Section 3.04.

 

Section 3.10.  Investor Report.  On or before each Determination Date, the Servicer shall deliver to the Depositor, the Seller and the Trustees, an Investor Report containing all information necessary to make the transfers and distributions required by Sections 4.01, 4.02, 4.06, 4.07 and 4.08 in respect of the related Collection Period and the related Payment Date and all information necessary for the Trustees, as applicable, to send (or provide access to via the internet) statements to Securityholders pursuant to Section 6.06 of the Indenture and Section 5.01(b) of the Trust Agreement.  The Servicer shall also specify to the Trustees, no later than the Determination Date following the last day of a Collection Period as of which the Seller shall separately identify (by account number), in a written notice to the Depositor and the Trustees, the Receivables to be

 

 

 

repurchased by the Seller or purchased by the Servicer, as the case may be, on the related Deposit Date.

 

Section 3.11.  Annual Statement as to Compliance; Notice of Servicer Termination Events.

 

 

 

Section 3.12.  Annual Accountants’ Report.

 

 

 

 

 

 

servicing criteria set forth in Item 1122(d) of Regulation AB during the immediately preceding calendar year (or, if applicable, such shorter period as shall have elapsed since the Closing Date in the case of the first such report), in accordance with paragraph (b) of Rule 13a‑18 and Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB.  Such report shall be signed by an authorized officer of the Servicer and shall at a minimum address each of the servicing criteria specified in Part I of Schedule C hereto.

 

 

Section 3.13.  Access to Certain Documentation and Information Regarding Receivables.  Subject to Section 2.07(b), the Servicer shall provide the Depositor and the Trustees with access to the Receivables Files in the cases where the related Trustee or the Securityholders are required by Applicable Law to have access to such documentation.  Such access shall be afforded without charge but only upon reasonable request and during normal business hours which does not unreasonably interfere with the normal operations or customer or employee relations of the Servicer, 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 3.14.  Reports to the Commission.  The Servicer shall, on behalf of the Issuer, cause to be filed with the Commission any periodic reports required to be filed under the provisions of the Exchange Act, and the rules and regulations of the Commission thereunder.  The Depositor shall, at its expense, cooperate in any reasonable request made by the Servicer in connection with such filings.

 

Section 3.15.  Reports to Rating Agencies.  The Servicer shall deliver to each Rating Agency, at such address as such Rating Agency may request, to the extent it is available to the Servicer, a copy of all reports or notices furnished or delivered pursuant to this Article and a copy of any amendments, supplements or modifications to this Agreement and any other information reasonably requested by such Rating Agency.

 

Section 3.16.  Asset Representations Review.

 

 

 

 

 

 

 

 

 

 

 

 

 

will include in the related Form 10-D report the date of such event and a general statement of the circumstances surrounding the change.

 

Section 3.17.  Dispute Resolution.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE FOUR

DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO SECURITYHOLDERS

 

Section 4.01.  Establishment of Accounts.

 

 

 

 

 

in each case bearing a designation clearly indicating that the funds deposited therein are held in trust for the benefit of the related Persons.  The Accounts shall be under the control of the Indenture Trustee; provided, however, that the Servicer may direct the Indenture Trustee in writing to make (or cause to be made) deposits to and withdrawals from the applicable Accounts in accordance with this Agreement and the other Basic Documents.  All monies deposited from time to time in the Accounts shall be held by, or in the name of, the Indenture Trustee as part of the Trust Property, and all deposits to and withdrawals therefrom shall be made only upon the terms and conditions of the Basic Documents.  Amounts on deposit in each Account shall, to the extent permitted by Applicable Law, be invested, as directed in writing by the Servicer, by the Eligible Institution then maintaining such Account in Eligible Investments.

 

 

 

 

 

 

 

 

 

 

Section 4.02.  Reserve Fund.

 

 

 

 

 

 

 

 

Payment Date, the Servicer shall instruct the Indenture Trustee in writing to distribute or cause to be distributed on the related Deposit Date, the amount of such excess to the Collection Account for payment to the Certificateholders on such Payment Date.  Any amount paid to the Certificateholders will no longer constitute a portion of the Trust Property and the Indenture Trustee and the Issuer hereby release, on each Payment Date, their security interest in, to and under the Reserve Fund Property distributed to the Certificateholders.  Notwithstanding the foregoing, investment income for each Collection Period (net of losses and expenses) on amounts on deposit in the Reserve Fund shall constitute Available Collections.

 

 

Section 4.03.  Monthly Remittance Condition.

 

 

 

 

Section 4.04.  Collections.  Subject to Sections 4.03, 4.06 and 4.07(a), the Servicer shall remit to the Collection Account all amounts received by the Servicer on or in respect of the Receivables (including Net Liquidation Proceeds and all amounts received by the Servicer in connection with the repossession and sale of a Financed Vehicle (whether or not the related Receivable has been classified as a Defaulted Receivable) but excluding payments with respect to Purchased Receivables) as soon as practicable and in no event after the close of business on the second Business Day after such amounts have been received and identified.

 

Section 4.05.  Application of Collections.  For purposes of this Agreement, all amounts received on or in respect of a Receivable during any Collection Period (including Net Liquidation

 

 

 

Proceeds and all amounts received by the Servicer in connection with the repossession and sale of a Financed Vehicle (whether or not the related Receivable has been classified as a Defaulted Receivable) but excluding payments with respect to Purchased Receivables) shall be applied by the Servicer to interest and principal on such Receivable in accordance with the Simple Interest Method.

 

Section 4.06.  Advances.

 

 

 

Section 4.07.  Additional Deposits.

 

 

 

 

aggregate Purchase Amount with respect to Purchased Receivables pursuant to Section 3.08 and (B) the amount required upon the optional purchase of all Receivables by the Servicer pursuant to Section 8.01 and (iii) the Indenture Trustee shall remit or shall cause to be remitted, pursuant to Section 4.02, the Reserve Fund Draw Amount to the Collection Account.

 

 

Section 4.08.  Determination Date Calculations; Application of Available Funds.

 

 

 

 

 

 

 

 

 

On each Determination Date, the Servicer shall calculate the Reserve Fund Amount, the Reserve Fund Required Amount, the Reserve Fund Draw Amount and the amount, if any, by which the Reserve Fund Required Amount exceeds the Reserve Fund Amount (after giving effect to any deposits to the Reserve Fund and the withdrawal of the Reserve Fund Draw Amount for such Payment Date).

 

 

 

 

Section 4.09.  Statements to Securityholders.  Within the prescribed period of time for tax reporting purposes after the end of each calendar year during the term of the Issuer, but not later than the latest date permitted by Applicable Law, the Servicer shall cause each Trustee to mail to each Person who at any time during such calendar year shall have been a Securityholder, a statement, prepared by the Servicer, containing certain information for such calendar year or, in the event such Person shall have been a Securityholder during a portion of such calendar year, for the applicable portion of such year, for the purposes of such Securityholder’s preparation of federal income tax returns.  In addition, the Servicer shall furnish to the Trustees for distribution to such Person at such time any other information necessary under Applicable Law for the preparation of such income tax returns.

 

ARTICLE FIVE

THE DEPOSITOR

 

Section 5.01.  Representations and Warranties of Depositor.  The Depositor makes the following representations and warranties on which the Issuer is deemed to have relied in acquiring the Trust Property.  The representations and warranties speak as of the date of execution and delivery of this Agreement and as of the Closing Date, and shall survive the sale, transfer, assignment and conveyance of the Trust Property to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.

 

 

 

 

 

 

 

 

not conflict with, result in any breach of any of the terms and provisions of, nor constitute (with or without notice or lapse of time, or both) a default under, the certificate of formation or limited liability company agreement of the Depositor, or conflict with or violate any of the terms or provisions of, or constitute (with or without notice or lapse of time, or both) a default under, any indenture, agreement or other instrument to which the Depositor is a party or by which it shall be bound or to which any of its properties is subject; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than this Agreement); nor violate any Applicable Law or, to the Depositor’s knowledge, any order, rule or regulation applicable to the Depositor or of Governmental Authority having jurisdiction over the Depositor or its properties, which conflict, breach, default, Lien or violation would have a material adverse effect on the performance by the Depositor of its obligations under or the validity or enforceability of, the Depositor Basic Documents, the Receivables or the Securities.

 

 

Section 5.02.  Liability of Depositor; Indemnities.

 

 

 

 

 

 

any Expenses incurred by the relevant party in connection with the enforcement of the Depositor’s indemnification or other obligations hereunder.

 

 

 

 

 

Section 5.03.  Merger, Consolidation or Assumption of the Obligations of Depositor.  Any Person (i) into which the Depositor shall be merged or consolidated, (ii) resulting from any merger, conversion or consolidation to which the Depositor shall be a party or (iii) that shall succeed by purchase and assumption to all or substantially all of the business of the Depositor, 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 under this Agreement without the execution or filing of any other document or any further act on the part of any of the parties to this Agreement; provided, however, that (A) the Depositor shall have delivered to the Trustees an Officer’s Certificate and an Opinion of Counsel each stating that such merger, conversion, consolidation or succession and such agreement of assumption comply with this Section, (B) the Depositor shall have delivered to the Trustees an Opinion of Counsel stating that, in the opinion of such counsel, either (1) all financing statements and continuation statements and amendments thereto have been authorized and filed that are necessary to fully preserve and protect the interest of the Issuer and the Indenture Trustee, respectively, in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (2) no such action shall be necessary to fully preserve and protect such interest and (C) the Rating Agency Condition shall have been satisfied.  Notwithstanding anything to the contrary contained herein, the execution of the foregoing agreement of assumption and compliance with clauses (A), (B) and (C) above shall be conditions to the consummation of the transactions referred to in clauses (i), (ii) and (iii) above.

 

Section 5.04.  Limitation on Liability of Depositor and Others.  The Depositor and any director or officer or employee or agent of the Depositor may rely in good faith 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.  The indemnities contained in this Section shall survive the resignation of the Indenture Trustee or termination of this Agreement.

 

Section 5.05.  Depositor Not to Resign.  Subject to the provisions of Section 5.03, the Depositor shall not resign from the obligations and duties hereby imposed on it as Depositor hereunder.

 

Section 5.06.  Depositor May Own Securities.  The Depositor and any of its Affiliates may, in its individual or any other capacity, become the owner or pledgee of Securities with the same rights as it would have if it were not the Depositor or an Affiliate of the Depositor, except as otherwise expressly provided herein or in any other Basic Document (including in the definition of the terms “Note Balance” and “Outstanding”).  Except as otherwise expressly provided herein or in the other Basic Documents (including in the definition of the terms “Note Balance” and “Outstanding”), Securities so owned by or pledged to the Depositor or such Affiliate shall have an equal and proportionate benefit under the provisions of this Agreement and the other Basic Documents, without preference, priority or distinction as among the Notes and the Certificates as the case may be.

 

Section 5.07.  Covenants of Depositor.  The Depositor makes the following covenants as of the date of this Agreement:

 

 

 

 

 

ARTICLE SIX

THE SERVICER

 

Section 6.01.  Representations and Warranties of Servicer.  The Servicer makes the following representations and warranties on which the Issuer is deemed to have relied in acquiring the Trust Property.  The representations and warranties speak as of the date of execution and delivery of this Agreement and as of the Closing Date, and shall survive the sale, transfer, assignment and conveyance of the Trust Property to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture:

 

 

 

 

 

 

 

 

 

liability company agreement of the Servicer, or any material indenture, agreement, mortgage, deed of trust or other instrument to which the Servicer is a party, by which the Servicer is bound or to which any of its properties are subject; or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument, other than the Servicer Basic Documents, or violate any law, order, rule or regulation applicable to the Servicer or its properties of any Governmental Authority having jurisdiction over the Servicer or any of its properties.

 

 

Section 6.02.  Liability of Servicer; Indemnities.  The Servicer shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Servicer under this Agreement.  Such obligations shall include the following:

 

 

 

 

 

 

or by reason of a reckless disregard of its obligations and duties under the Servicer Basic Documents, including any Expenses incurred by the relevant party in connection with enforcement of the Servicer’s indemnification or other obligations hereunder.

 

 

 

In addition to the foregoing indemnities, if either Trustee is entitled to indemnification by the Depositor pursuant to Section 5.02 and the Depositor is unable for any reason to provide such indemnification to either Trustee, then the Servicer shall be liable for any indemnification that such Trustee is entitled to under Section 5.02.  For purposes of this Section, in the event of a termination of the rights and obligations of the Servicer (or any Successor Servicer) pursuant to Section 7.01 or a resignation by such Servicer pursuant to Section 6.05, such Servicer shall be deemed to be the Servicer pending appointment of a Successor Servicer (other than the Indenture Trustee) pursuant to Section 7.02.  Indemnification under this Section by the Servicer (or any Successor Servicer), with respect to the period such Person was (or was deemed to be) the Servicer, shall survive the termination of each Person as Servicer or a resignation by such Person as Servicer, as well as the resignation or removal of the Owner Trustee or the Indenture Trustee, as the case may be, 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 Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Servicer, as the case may be, without interest.

 

Section 6.03.  Merger or Consolidation of, or Assumption of the Obligations of Servicer.  Any Person (i) into which the Servicer shall be merged or consolidated, (ii) which may result from any merger, conversion or consolidation to which the Servicer shall be a party or (iii) which may succeed to all or substantially all of the business of the Servicer, which Person in any of the

 

 

 

foregoing cases is an Eligible Servicer and executes an agreement of assumption to perform every obligation of the Servicer under this Agreement, shall be the successor to the Servicer under this Agreement without the execution or filing of any other document or any further act on the part of any of the parties hereto; provided, however, the Servicer shall have delivered to the Depositor and the Trustees (a) an Officer’s Certificate and an Opinion of Counsel each stating that such merger, conversion or consolidation and such agreement of assumption comply with this Section and (b) an Opinion of Counsel stating that, in the opinion of such counsel, either (1) all financing statements and continuation statements and amendments thereto have been authorized and filed that are necessary to preserve and protect the interest of the Issuer and the Indenture Trustee, respectively, in the assets of the Issuer and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given or (2) no such action shall be necessary to preserve and protect such interest.  Notwithstanding anything to the contrary contained herein, the execution of the foregoing agreement of assumption and compliance with clauses (a) and (b) above shall be conditions to the consummation of the transactions referred to in clauses (i), (ii) and (iii) above.  The Servicer shall provide prior written notice of any merger, conversion, consolidation or succession pursuant to this Section to the Trustees, the Rating Agencies and the Depositor.  The Servicer shall provide such information in writing as reasonably requested by the Depositor to allow the Depositor to comply with its Exchange Act reporting obligations with respect to a Successor Servicer.

 

Section 6.04.  Limitation on Liability of Servicer and Others.

 

 

 

Section 6.05.  MBFS USA Not to Resign as Servicer.  MBFS USA will not resign as Servicer under this Agreement except upon determination that the performance of its duties under this Agreement is no longer permissible under Applicable Law.  Prior to the effectiveness of such resignation, MBFS USA will deliver to the Depositor and the Trustees (i) notice of any such determination permitting the resignation of MBFS USA as Servicer and (ii) an Opinion of

 

 

 

Counsel to such effect.  Any such resignation will become effective in accordance with Section 7.02.

 

Section 6.06.  Servicer May Own Securities.  The Servicer and any of its Affiliates may, in its individual or other capacity, become the owner or pledgee of Securities with the same rights as it would have if it were not the Servicer or an Affiliate of the Servicer, except as otherwise expressly provided herein or in any other Basic Document (including in the definition of the terms “Note Balance” and “Outstanding”).  Except as otherwise expressly provided herein or in the other Basic Documents (including in the definition of the terms “Note Balance” and “Outstanding”), Securities so owned by or pledged to the Servicer or such Affiliate shall have an equal and proportionate benefit under the provisions of this Agreement and the other Basic Documents, without preference, priority or distinction as among the Notes and the Certificates, as the case may be.

 

ARTICLE SEVEN

SERVICER TERMINATION EVENTS

 

Section 7.01.  Servicer Termination Events.  The occurrence of any one of the following events shall constitute an event of servicing termination hereunder (each, a “Servicer Termination Event”):

 

 

 

 

 

If a Servicer Termination Event shall have occurred and not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class (or holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests outstanding if the Notes are no longer Outstanding), in

 

 

 

 

each case by providing a Servicer Termination Notice to the Depositor, the Owner Trustee, the Servicer and the Asset Representations Reviewer (and to the Indenture Trustee if given by the Noteholders) may terminate all the rights and obligations of the Servicer under this Agreement; provided, however, that the indemnification obligations of the Servicer under Section 6.02 shall survive such termination.

 

On or after the receipt by the Servicer of a Servicer Termination Notice, all authority and power of the Servicer under this Agreement, whether with respect to the Notes, the Certificates, the Trust Property or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed under Section 7.02; and, without limitation, the Trustees are hereby authorized and empowered to execute and deliver, on behalf of the outgoing Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of the Receivable Files or the certificates of title to the Financed Vehicles, or otherwise.  The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this Agreement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the Accounts or thereafter received with respect to the Receivables, all Receivable Files and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable for any losses, claims, damages or expenses to the extent that it cannot perform its obligations hereunder due to the failure of the predecessor Servicer to so deliver.  In addition, the Servicer shall transfer its electronic records relating to the Receivables to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request.  All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.

 

The Trustees shall have no obligation to notify the Noteholders, the Certificateholders or any other Person of the occurrence of any event specified in this Section prior to the continuance of such event through the end of any cure period specified in this Section.

 

Section 7.02.  Appointment of Successor Servicer.  Upon the resignation of the Servicer pursuant to Section 6.05 or the termination of the Servicer pursuant to Section 7.01, the Indenture Trustee shall be the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and shall be subject to all the obligations and duties placed on the Servicer by the terms and provisions of this Agreement, and shall provide such information in writing as reasonably requested by the Depositor to allow the Depositor to comply with its Exchange Act reporting obligations with respect to the Indenture Trustee in its capacity as Successor Servicer; provided, however, that the Indenture Trustee, as Successor Servicer, shall not, in any event, be required to make any Advances pursuant to Section 4.06 and shall have no obligations pursuant to Section 3.09 with respect to the fees and expenses of the Trustees, the fees and expenses of the  attorneys for the Trustees, the fees and expenses of any custodian appointed by the Trustees, the fees and expenses of Independent accountants or expenses incurred in connection with distributions and reports to the Securityholders.  As compensation therefor, the Indenture Trustee

 

 

 

shall be entitled to such compensation (whether payable out of the Collection Account or otherwise) as the Servicer would have been entitled to under this Agreement if no such resignation or termination had occurred, except that all collections on or in respect of the Receivables shall be deposited in the Collection Account within two Business Days of receipt and shall not be retained by the Servicer.  Notwithstanding the foregoing, the Indenture Trustee may, if it shall be unwilling so to act, or shall, if it is legally unable so to act, appoint, or petition a court of competent jurisdiction to appoint, an Eligible Servicer as the successor to the terminated Servicer under this Agreement.  In connection with such appointment, the Indenture Trustee may make such arrangements for the compensation of such Successor Servicer out of Available Collections for each Payment Date as it and such successor shall agree; provided, however, that such compensation shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding).  The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession, including providing such information in writing as reasonably requested by the Depositor to allow the Depositor to comply with its Exchange Act reporting obligations with respect to such Successor Servicer.  The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this Agreement.  Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder or the responsibilities of the Servicer set forth in Section 3.08 and 3.16.

 

Section 7.03.  Effect of Servicing Transfer.

 

 

 

 

 

 

provide access to information as a result of such obligation shall not constitute a breach of this Section.

 

 

Section 7.04.  Notification to Noteholders and Rating Agencies.  Upon any notice of a Servicer Termination Event or upon any termination of, or any appointment of a successor to, the Servicer pursuant to this Article, the Indenture Trustee shall give prompt written notice thereof to the Noteholders, the Rating Agencies and the Asset Representations Reviewer.

 

Section 7.05.  Waiver of Past Servicer Termination Events.  The Noteholders evidencing not less than 51% of the Note Balance of the Controlling Class may, on behalf of all Noteholders, waive any Servicer Termination Event and its consequences, except an event resulting from the failure to make any required deposits to or payments from the Accounts in accordance with this Agreement.  Upon any such waiver of a Servicer Termination Event, such event shall cease to exist, and shall be deemed to have been remedied for every purpose of this Agreement.  No such waiver shall extend to any subsequent or other event or impair any right arising therefrom, except to the extent expressly so waived.

 

Section 7.06.  Repayment of Advances.  If the identity of the Servicer shall change, the outgoing Servicer shall be entitled to receive reimbursement for outstanding and unreimbursed Advances made pursuant to Section 4.06 by the outgoing Servicer.

 

ARTICLE EIGHT

 

Section 8.01.  Optional Purchase of All Receivables.

 

 

 

Section 8.02.  Termination.  Notwithstanding anything in this Agreement to the contrary, this Agreement shall terminate upon the earliest to occur of (i) the maturity or liquidation of the latest maturing Receivable and the disposition of any amounts received thereon in accordance with Section 2.08 of the Indenture, (ii) the payment to the Securityholders of all amounts required to be paid to them under the Basic Documents and (iii) the exercise by the Servicer of its rights under Section 8.01, the deposit into the Collection Account by the Servicer of the amount required to be deposited therein in accordance with Section 8.01 and the application of such amounts in accordance with Section 2.08 of the Indenture.

 

 

ARTICLE NINE

EXCHANGE ACT REPORTING

 

Section 9.01.  Further Assurances.  The Indenture Trustee and the Servicer shall reasonably cooperate with the Depositor in connection with the satisfaction of the Depositor’s reporting requirements under the Exchange Act with respect to the Issuer.  The Depositor shall not exercise its right to request delivery of information or other performance under these provisions other than in good faith.  In addition to the other information specified in this Article , if so requested by the Depositor for the purpose of satisfying its reporting obligation under the Exchange Act, the Indenture Trustee and the Servicer shall provide the Depositor with (i) such information which is available to such Person without unreasonable effort or expense and within such timeframe as may be reasonably requested by the Depositor to comply with the Depositor’s reporting obligations under the Exchange Act and (ii) to the extent such Person is a party (and the Depositor is not a party) to any agreement or amendment required to be filed, copies of such agreement or amendment in ▇▇▇▇▇-compatible form.  Each of the Servicer and the Indenture Trustee acknowledges that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with requests made by the Depositor in good faith for delivery of information under these provisions on the basis of evolving interpretations of Regulation AB.

 

Section 9.02.  Form 10-D Filings.  So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, no later than each Determination Date, each of the Indenture Trustee and the Servicer shall notify (and the Servicer shall cause any subservicer to notify) the Depositor of any Form 10-D Disclosure Item with respect to such Person (or in the case of the Indenture Trustee, a Responsible Officer of such Person), together with a description of any such Form 10-D Disclosure Item in form and substance reasonably acceptable to the Depositor.  In addition to such information as the Servicer is obligated to provide pursuant to other provisions of this Agreement, if so requested by the Depositor, the Servicer shall provide such information which is available to the Servicer, without unreasonable effort or expense regarding the performance or servicing of the Receivables as is reasonably required to facilitate preparation of distribution reports in accordance with Item 1121 of Regulation AB.  Such information shall be provided concurrently with the statements to Securityholders pursuant to Section 4.09, commencing with the first such report due not less than five Business Days following such request.

 

Section 9.03.  Form 8-K Filings.  So long as the Depositor is required to file Exchange Act Reports with respect to the Issuer, each of the Indenture Trustee and the Servicer shall promptly notify the Depositor, but in no event later than two Business Days after its occurrence, of any Reportable Event of which such Person (or in the case of the Indenture Trustee, a Responsible Officer of such Person) has actual knowledge.  Each Person shall be deemed to have actual knowledge of any such event to the extent that it relates to such Person or any action or failure to act by such Person.

 

Section 9.04.  Form 10-K Filings.  So long as the Depositor is required to file Exchange Act Reports, (i) if the Item 1119 Parties listed on Schedule B have changed since the Closing

 

 

 

Date, no later than February 1 of each year, commencing in 2017, the Depositor shall provide each of the Indenture Trustee and the Servicer with an updated Schedule B setting forth the Item 1119 Parties and (ii) no later than March 15 of each year, commencing in 2017, the Indenture Trustee and the Servicer shall notify the Depositor of any Form 10-K Disclosure Item, together with a description of any such Form 10-K Disclosure Item in form and substance reasonably acceptable to the Depositor.

 

Section 9.05.  Report on Assessment of Compliance and Attestation.  So long as the Depositor is required to file Exchange Act Reports, on or before March 15 of each calendar year, commencing in 2017:

 

 

 

 

Section 9.06.  Back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.

 

 

 

 

Servicer), in each case on which the Certification Parties can reasonably rely; provided that so long as the Servicer is an Affiliate of the Depositor, the Servicer may, but is not required to deliver the Performance Certificate.

 

 

Section 9.07.  Representations and Warranties.  The Indenture Trustee represents that:

 

 

 

 

Section 9.08.  Indemnification.

 

 

 

 

 

 

with respect to the Servicer, any failure by the Servicer to deliver any information, report, certification, accountant’s letter or other material when and as required under Section 3.11 or 3.12 or this Article, as applicable.

 

 

 

ARTICLE TEN

MISCELLANEOUS

 

Section 10.01.  Amendment.

 

 

 

 

 

 

 

 

 

 

Section 10.02.  Protection of Title to Issuer.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

amended or supplemented to date) and to each of the Investor Reports furnished before such request indicating removal of Receivables from the Issuer.

 

 

 

Section 10.03.  Notices.  Unless otherwise specified in this Agreement, all notices, requests, demands, consents, waivers or other communications to or from the parties to this Agreement will be in writing.  Notices, requests, demands, consents and other communications will be deemed to have been given and made, (i) upon delivery or, in the case of a letter mailed via registered first class mail, postage prepaid, three days after deposit in the mail and (ii) in the case of (a) a facsimile, when receipt is confirmed by telephone or by reply e-mail or reply facsimile from the recipient, (b) an e-mail, when receipt is confirmed by telephone or by reply e‑mail from the recipient and (c) an electronic posting to a password-protected website, upon printed confirmation of the recipient’s access to such password-protected website, or when notification of such electronic posting is confirmed in accordance with clauses (ii)(b) through (ii)(c) above.  Unless otherwise specified in this Agreement, any such notice, request, demand, consent or other communication will be delivered or addressed, in the case of (i) the Depositor, at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (e-mail: ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), (ii) the Seller, at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (e-mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), (iii) the Servicer, at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (e-mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), (iv) the Issuer or the Owner Trustee, at the Corporate Trust Office, (e-mail: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), (v) the Indenture Trustee, at the Corporate Trust Office (e-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), (vi)  to each Rating Agency, as applicable, in the case of (a) Standard & Poor’s, at S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇  ▇▇▇▇▇, Attention: Asset Backed Surveillance Department (e‑mail: ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇)  and (b) Fitch, at Fitch Ratings, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Surveillance (email: ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇-▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), (vii) the Asset Representations Reviewer, at  ▇▇▇▇▇▇▇ Fixed Income Services LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: SVP, Surveillance (e‑mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇) and (vii) as to each of the foregoing, at such other address as shall be designated by written notice to the other parties.

 

 

 

 

Section 10.04.  Assignment.

 

 

 

Section 10.05.  Severability.  If any one or more of the covenants, agreements, provisions or terms of this Agreement is held invalid, illegal or unenforceable, then such covenants, agreements, provisions or terms will be deemed severable from the remaining covenants, agreements, provisions and terms of this Agreement and will in no way affect the validity, legality or enforceability of the other covenants, agreements, provisions and terms of this Agreement.

 

Section 10.06.  Further Assurances.  The Servicer agrees to do and perform any and all acts and to execute any and all further instruments required or reasonably requested by the other parties hereto to more fully effect the purposes of this Agreement, including the execution of any financing statements or continuation statements relating to the Trust Estate for filing under the provisions of the UCC of any applicable jurisdiction.

 

Section 10.07.  No Waiver; Cumulative Remedies.  No failure to exercise and no delay in exercising, on the part of the Depositor, either Trustee, the Noteholders or the Certificateholders, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by law.

 

Section 10.08.  Successors and Assigns; Third-Party Beneficiaries.  This Agreement will inure to the benefit of and be binding upon the parties to this Agreement, the Owner Trustee and their assigns.  Except as otherwise provided in this Agreement, no other Person will have any right or obligation under this Agreement.

 

Section 10.09.  Actions by Securityholders.

 

 

 

 

 

subsequent Holder of the related Note or Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or omitted to be done by the Owner Trustee, the Indenture Trustee or the Servicer in reliance thereon, whether or not notation of such action is made upon such Note or Certificate.

 

Section 10.10.  Counterparts.  This Agreement may be executed in any number of counterparts, each of which will be an original, and all of which will together constitute one and the same instrument.

 

Section 10.11.  Table of Contents and Headings.  The Table of Contents and the various headings in this Agreement are included for convenience only and will not affect the meaning or interpretation of any provision of this Agreement.

 

Section 10.12.  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTIONS 5‑1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

Section 10.13.  WAIVER OF JURY TRIAL.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.

 

Section 10.14.  No Petition.  Each of the Seller, the Servicer and the Trustees covenants and agrees that it will not at any time institute against, or join any Person in instituting against, the Issuer or the Depositor any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceedings, or other Proceedings under any Insolvency Law in connection with any obligations relating to any of the Basic Documents and agrees that it will not cooperate with or encourage others to file a bankruptcy petition against the Issuer during the same period.

 

Section 10.15.  No Recourse.  It is expressly understood and agreed by the parties hereto that (i) this Agreement is executed and delivered by the Owner Trustee, not individually or personally but solely as Owner Trustee, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreements by the Owner Trustee but is made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained shall be construed as creating any liability on the Owner Trustee, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming

 

 

 

 

by, through or under the parties hereto, (iv) the Owner Trustee has not verified and has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer hereunder and (v) under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement or any other related documents.

 

Section 10.16.  Servicer Payment Obligation.  The Servicer shall be responsible for the payment of all fees and expenses of the Issuer and the Trustees paid by any of them in connection with any of their obligations under the Basic Documents to obtain or maintain or cause to be obtained or maintained any required license under the (i) Maryland Vehicle Sales Finance Act or (ii) Pennsylvania Motor Vehicle Sales Finance Act.

 

IN WITNESS WHEREOF, the parties hereto have caused this Sale and Servicing Agreement to be duly executed by their respective officers, thereunto duly authorized, as of the day and year first above written.

 

	MERCEDES-BENZ AUTO RECEIVABLES          TRUST 2016-1
	By:	WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee on behalf of the Issuer

 

 

Agreed and Accepted:
U.S. BANK NATIONAL ASSOCIATION
By:
	Name: Title:

 

SCHEDULE A

 

LOCATION OF RECEIVABLE FILES

 

Iron Mountain

▇▇▇▇ ▇▇▇▇▇▇ ▇

▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇  ▇▇▇▇▇

 

Iron Mountain

▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

 

DealerTrack Collateral Management Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇  ▇▇▇▇▇

 

SCHEDULE B

 

ITEM 1119 PARTIES

 

Depositor

Seller

Servicer

Indenture Trustee

Owner Trustee

Asset Representations Reviewer

 

 

SCHEDULE C

 

SERVICING AND DISCLOSURE ITEMS

 

Schedule C
Part I – Servicing Criteria (To Be Addressed in the Report on Assessment of Compliance)

 

The assessment of compliance to be delivered by the Servicer shall address, at a minimum, the criteria identified below as “Applicable Servicing Criteria”:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule C
Part II - Form 10-D Disclosure Items

 

 

 

 

FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
Item on Form 8-K	Responsible Party

 

Schedule C
Part III - Form 10-K Disclosure Items

 

Schedule C
Part IV - Form 8-K Disclosure (Reportable Events)

 

 

 

 

 

FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
Item on Form 8-K	Responsible Party

 

 

 

FORM 8-K DISCLOSURE (REPORTABLE EVENTS)
Item on Form 8-K	Responsible Party

SCHEDULE D

 

PERFORMANCE CERTIFICATION
(SERVICER)

 

 

The undersigned Servicer hereby certifies to _______ and its officers, directors and Affiliates (collectively, the “Certification Parties”) as follows, with the knowledge and intent that the Certification Parties will rely on this Certification in connection with the certification concerning the Issuer to be signed by an officer of the Servicer and submitted to the Securities and Exchange Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002:

 

 

 

 

 

 

 

 

 

 

 

 

preparing the Compliance Statement and except as disclosed in the Compliance Statement, the Servicing Assessment or the Attestation Report, the Servicer has fulfilled its obligations under the Agreement in all material respects.

 

 

Capitalized terms not otherwise defined herein have the meanings ascribed thereto in the Agreement.

 

Date: ____________________

 

 

 

 

EXHIBIT A

 

REPRESENTATIONS AND WARRANTIES AS TO THE RECEIVABLES

 

The following representations and warranties shall be made in respect of the Receivables being transferred to the Issuer on the Closing Date as of the Cutoff Date.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date and no continuing condition that with notice or the lapse of time or both would constitute a default, breach or violation under the terms of any Receivable, permitting acceleration, shall have arisen; and the Seller shall not have waived any of the foregoing except as otherwise permitted hereunder.  On or prior to the Cutoff Date, no Financed Vehicle has been repossessed.

 

 

 

 

 

 

 

 

 

 

 

 

 

Receivables have been sold to the Purchaser by the Seller and transferred and assigned by the Purchaser to the Issuer in accordance with the terms of the Sale and Servicing Agreement and pledged by the Issuer to the Indenture Trustee in accordance with the terms of the Indenture.

 

 

 

 

 

 

 

 

 

EXHIBIT B

 

FORM OF INVESTOR REPORT

 

 

 

 

 

Mercedes-Benz Auto Receivables Trust 2016-1
Investor Report
Collection Period ended

 

 

 

Mercedes-Benz Auto Receivables Trust 2016-1
Investor Report
Collection Period ended

 

 

 

Mercedes-Benz Auto Receivables Trust 2016-1
Investor Report
Collection Period ended

 

 

 

Mercedes-Benz Auto Receivables Trust 2016-1
Investor Report
Collection Period ended						Page 5 of 6

 

 

 

 

Mercedes-Benz Auto Receivables Trust 2016-1
Investor Report
Collection Period ended						Page 6 of 6

APPENDIX A

 

 

AA-1

---

APPENDIX A

 

USAGE AND DEFINITIONS

 

USAGE

 

The following rules of construction and usage are applicable to this Appendix,  any agreement that incorporates this Appendix and to any certificate or other document made or delivered pursuant to any such agreement:

 

 

 

 

 

 

 

 

 

 

 

 

DEFINITIONS

 

“Account Collateral” means, with respect to each Account, such Account, together with all cash, securities, Financial Assets and investments and other property from time to time deposited or credited to such Account and all proceeds thereof, including, with respect to the Reserve Fund, the Reserve Fund Deposit and the Reserve Fund Amount.

 

“Accountants” means a firm of independent public accountants.

 

“Accounts” means the Collection Account, the Note Payment Account and the Reserve Fund.

 

“Act” has the meaning specified in Section 11.03(a) of the Indenture.

 

“Additional Servicing Fee” means, for any Collection Period, if a Successor Servicer is appointed pursuant to Section 7.02 of the Sale and Servicing Agreement, the amount, if any, by which (i) the compensation payable to such Successor Servicer for such Collection Period exceeds (ii) the Monthly Servicing Fee for such Collection Period.

 

“Adjusted Pool Balance” means, as of any day, the Pool Balance minus the Yield Supplement Overcollateralization Amount for such day.

 

“Administration Agreement” means the Administration Agreement, dated as of September 1, 2016, among the Administrator, the Issuer, the Depositor and the Indenture Trustee.

 

“Administrator” means MBFS USA, in its capacity as administrator under the Administration Agreement, and its successors in such capacity.

 

 

 

 

 

 

“Advance” has the meaning specified in Section 4.06(a) of the Sale and Servicing Agreement.

 

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person.  For purposes of this definition, “control”, when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Aggregate Principal Distributable Amount” means, with respect to any Payment Date, the Priority Principal Distributable Amount and the Regular Principal Distributable Amount.

 

“Amount Financed” means, with respect to any Receivable, the aggregate amount advanced under such Receivable toward the purchase price of the related Financed Vehicle and any related costs, including accessories, insurance premiums, service and warranty contracts and other items customarily financed as part of a motor vehicle retail installment sale contract or installment loan.

 

“Applicable Law” means all applicable laws, ordinances, judgments, decrees, injunctions, writs and orders of any Governmental Authority and rules, regulations, orders, interpretations, licenses and permits of any Governmental Authority.

 

“Applicants” has the meaning specified in Section 3.07 of the Trust Agreement.

 

“APR” means, with respect to any Receivable, the annual percentage rate of interest stated in such Receivable.

 

“Asset Representations Review Agreement” means the Asset Representations Review Agreement, dated as of September 1, 2016, among the Issuer, the Servicer, the Administrator and the Asset Representations Reviewer.

 

 “Asset Representations Reviewer” means ▇▇▇▇▇▇▇ Fixed Income Services LLC, a Delaware limited liability company, in its capacity as Asset Representations Reviewer under the Asset Representations Review Agreement, and its successors in such capacity.

 

“Asset Representations Reviewer Fees” means all amounts due to the Asset Representations Reviewer pursuant to the Asset Representations Reviewer Agreement, including Review Fees and Annual Fees, on each Payment Date for the related Collection Period, and any previously accrued and unpaid fees.

 

“Authenticating Agent” means each Person appointed as an authenticating agent pursuant to Section 2.15 of the Indenture.

 

“Authorized Newspaper” means a newspaper of general circulation in The City of New York, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays and holidays.

 

 

 

 

“Authorized Officer” means, with respect to (i) the Issuer, any officer of the Owner Trustee who is authorized to act for or on behalf of the Owner Trustee in matters relating to the Issuer and who is identified on the list of officers delivered by the Owner Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter), as well as the president, any Vice President, the treasurer, any assistant treasurer, the secretary or any assistant secretary of the Depositor and, for so long as the Administration Agreement is in effect, any Vice President or more senior officer of the Administrator who is authorized to act for the Administrator in matters relating to the Issuer and to be acted upon by the Administrator pursuant to the Administration Agreement and who is identified on the list of authorized officers delivered by the Administrator to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter) and (ii) any other Person, any president, Vice President, treasurer, assistant treasurer, secretary, assistant secretary or any other officer of such Person who customarily performs functions similar to those performed by any of the foregoing having direct responsibility for the administration of the Basic Documents and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

 

“Available Collections” means, for any Payment Date and the related Collection Period, the sum of (i) all Obligor payments relating to interest and principal received by the Servicer with respect to the Receivables during the related Collection Period after the Cutoff Date (other than amounts comprising the Supplemental Servicing Fee), (ii) all Net Liquidation Proceeds, Insurance Proceeds (with respect to Receivables that are not Defaulted Receivables), Recoveries and Dealer Recourse payments received with respect to the Receivables during such Collection Period, (iii) interest and other income (net of losses and investment expenses) on amounts on deposit in the Reserve Fund and, in the event that collections on or in respect of the Receivables are required to be deposited by the Servicer into the Collection Account on a daily basis pursuant to Section 4.03 of the Sale and Servicing Agreement, the Collection Account, (iv) the aggregate Purchase Amounts deposited in the Collection Account on the related Deposit Date, (v) all prepayments received with respect to the Receivables attributable to any refunded item included in the Amount Financed of any Receivable, including amounts received as a result of rebates of extended warranty contract costs and proceeds received under physical damage, theft, credit life and credit disability insurance policies and (vi) all Advances deposited into the Collection Account by the Servicer on the related Deposit Date; provided, however, that Available Collections shall not include any payments or other amounts (including Net Liquidation Proceeds and Recoveries) received with respect to any (a) Purchased Receivable, the Purchase Amount for which was included in Available Collections for a previous Payment Date and (b) Receivable to the extent that the Servicer has made an unreimbursed Advance with respect to such Receivable and is entitled to reimbursement from payments in respect of such Receivables or other Receivables or other amounts pursuant to Section 4.07 of the Sale and Servicing Agreement.

 

“Available Funds” means, with respect to any Payment Date, the sum of (i) Available Collections and (ii) the Reserve Fund Draw Amount, if any.

 

“Bankruptcy Code” means Title 11 of the United States Code, 11 U.S.C. § 101 et seq.

 

 

 

 

“Basic Documents” means the Sale and Servicing Agreement, the Administration Agreement, the Indenture, the Note Depository Agreement, the Receivables Purchase Agreement, the Trust Agreement and the Asset Representations Review Agreement.

 

“Benefit Plan” means (i) employee benefit plans (as defined in Section 3(3) of ERISA) that are subject to Title I of ERISA, (ii) plans described in Section 4975(e)(1) of the Code, including individual retirement accounts or ▇▇▇▇▇ Plans, that are not exempt under Section 4975(g) of the Code and (iii) any entities whose underlying assets include plan assets by reason of a plan’s investment in such entities.

 

“Book-Entry Notes” means a beneficial interest in the Notes, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 2.10 of the Indenture.

 

“Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions or trust companies in the State of New York, the State of Delaware, the State of Michigan and the state in which the executive offices of the Indenture Trustee are located, are authorized by law, regulation or executive order to be closed.

 

“Certificate” means a certificate evidencing the undivided beneficial interest of a Certificateholder in the assets of the Issuer, substantially in the form attached to the Trust Agreement as Exhibit A.

 

“Certificate of Trust” means the Certificate of Trust substantially in the form of Exhibit B to the Trust Agreement filed for the Issuer pursuant to Section 3810(a)(1) of the Statutory Trust Statute.

 

“Certificate Percentage Interest” means, with respect to a Certificate, the percentage specified on such Certificate as the Certificate Percentage Interest, which percentage represents the beneficial interest of the holder of such Certificate in the Issuer.  The initial Certificate Percentage Interest held by the Depositor shall be 100%.

 

“Certificate Register” and “Certificate Registrar” shall have the respective meanings specified in Section 3.04(a) of the Trust Agreement.

 

“Certificateholder” means a Person in whose name a Certificate is registered on the Certificate Register.

 

“Certification Parties” means, collectively, the Certifying Person and the entity for which the Certifying Person acts as an officer, and such entity’s officers, directors and Affiliates.

 

“Certifying Person” means an individual who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.

 

“Class” means a class of Notes, which may be the Class A‑1 Notes, the Class A‑2A Notes, the Class A‑3 Notes or the Class A‑4 Notes as the context may require.

 

“Class A Noteholder” means the Person in whose name a Class A Note is registered in the Note Register.

 

 

 

“Class A Notes” means the Class A‑1 Notes, the Class A‑2A Notes, the Class A‑3 Notes and the Class A‑4 Notes.

 

“Class A‑1 Final Scheduled Payment Date” means September 15, 2017.

 

“Class A‑1 Interest Rate” means 0.75000% per annum (computed on the basis of the actual number of days in the related Interest Period divided by 360).

 

“Class A‑1 Notes” means $350,000,000 aggregate principal amount of the Issuer’s 0.75000% Class A‑1 Asset Backed Notes, substantially in the form of Exhibit A to the Indenture.

 

“Class A‑2A Final Scheduled Payment Date” means March 15, 2019.

 

“Class A‑2A Interest Rate” means 1.11% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).

 

 “Class A‑2A Notes” means $500,000,000 aggregate principal amount of the Issuer’s 1.11% Class A‑2A Asset Backed Notes, substantially in the form of Exhibit A to the Indenture.

 

“Class A‑3 Final Scheduled Payment Date” means February 16, 2021.

 

“Class A‑3 Interest Rate” means 1.26% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).

 

“Class A‑3 Notes” means $532,000,000 aggregate principal amount of the Issuer’s 1.26% Class A‑3 Asset Backed Notes, substantially in the form of Exhibit A to the Indenture.

 

“Class A‑4 Final Scheduled Payment Date” means December 15, 2022.

 

“Class A‑4 Interest Rate” means 1.46% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).

 

“Class A‑4 Notes” means $115,970,000 aggregate principal amount of the Issuer’s 1.46% Class A‑4 Asset Backed Notes, substantially in the form of Exhibit A to the Indenture.

 

“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act, which initially shall be The Depository Trust Company.

 

“Clearing Agency Custodian” means the Indenture Trustee, as custodian for the Clearing Agency.

 

“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 September 14, 2016.

 

“Code” means the Internal Revenue Code of 1986 and the Treasury Regulations promulgated thereunder.

 

 

 

 

“Collateral” has the meaning specified in the Granting Clause of the Indenture.

 

“Collection Account” means the account designated as such, and established and maintained pursuant to Section 4.01(a) of the Sale and Servicing Agreement.

 

“Collection Period” means, with respect to any Payment Date, the immediately preceding calendar month (or, in the case of the first Collection Period, the period from but excluding the Cutoff Date to and including the last day of the calendar month immediately preceding the calendar month in which the first Payment Date occurs).

 

“Commission” means the United States Securities and Exchange Commission.

 

“Control” has the meaning specified in Section 8‑106 of the UCC.

 

“Controlling Class” means the Class A Notes.

 

“Corporate Trust Office” means, with respect to

 

(i) the Indenture Trustee, the office of the Indenture Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of execution of the Indenture is located at:

 

U.S. Bank National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇  ▇▇▇▇▇
Attention: Structured Finance/MBART 2016-1
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Telephone:  (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:  (▇▇▇) ▇▇▇-▇▇▇▇

 

or at such other address as the Indenture Trustee may designate from time to time by written notice to the Noteholders and the Issuer, or the principal corporate trust office of any successor Indenture Trustee at the address designated by such successor Indenture Trustee by written notice to the Noteholders and the Issuer and

 

(ii) the Owner Trustee, the principal corporate trust office of the Owner Trustee located at:

 

Wilmington Trust, National Association
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇  ▇▇▇▇▇
Attention:  Corporate Trust Administration
E-mail: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telephone:  (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:  (▇▇▇) ▇▇▇-▇▇▇▇

 

 

 

 

or at such other address as the Owner Trustee may designate from time to time by notice to the Certificateholders, the Indenture Trustee, the Servicer and the Depositor, or the principal corporate trust office of any successor Owner Trustee at the address designated by such successor Owner Trustee by notice to the Certificateholders, the Indenture Trustee, the Servicer and the Depositor.

 

“Cutoff Date” means the close of business on July 31, 2016, the date after which the Issuer will be entitled to receive all amounts related to the Receivables.

 

“Cutoff Date Adjusted Pool Balance” means the Adjusted Pool Balance as of the Cutoff Date (i.e., $1,536,386,784.98).

 

“Cutoff Date Pool Balance” means the aggregate Principal Balance of the Receivables as of the Cutoff Date, which is $1,591,275,988.02.

 

“Daimler AG” means Daimler AG, a company organized under the laws of Germany.

 

“Daimler Retail Receivables” means Daimler Retail Receivables LLC, a Delaware limited liability company.

 

“Dealer” means the dealer of motor vehicles who sold a Financed Vehicle and who originated and assigned the Receivable relating to such Financed Vehicle to the Seller under an existing agreement between such dealer and the Seller.

 

“Dealer Agreement” means an agreement between the Seller and a Dealer, entered into by the Seller in the ordinary course of its business, providing for the sale of Receivables by the Dealer to the Seller.

 

“Dealer Recourse” means, with respect to a Receivable, all recourse rights against the Dealer which originated the Receivable, and any successor to such Dealer.

 

“Default” means any event that with notice or the lapse of time or both would become an Event of Default.

 

“Defaulted Receivable” means a Receivable as to which (i) at least 10% of any payment, or any part of any payment, due under such Receivable has become 120 days or more delinquent (whether or not the Servicer has repossessed the related Financed Vehicle) or (ii) the Servicer has charged off any portion of the Principal Balance of the Receivable or has determined in accordance with its customary practices that such Receivable is uncollectible; provided, however, that (a) a Receivable will not become a Defaulted Receivable until the last day of the Collection Period during which one of the foregoing events first occurs and (b) a Purchased Receivable will not be deemed to be a Defaulted Receivable.

 

“Definitive Notes” means definitive, fully registered Notes issued pursuant to Section 2.12 of the Indenture.

 

“Delaware Statutory Trust Act” means 12 Del C. § 3801 et seq.

 

 

 

 “Delinquency Trigger” means, for any Collection Period, that the aggregate Principal Balance of Receivables that are more than 60 days Delinquent (but are not Defaulted Receivables) as a percentage of the Pool Balance as of the last day of the Collection Period exceeds 3.55%.

 

 “Delinquent” means a Receivable on which 10% or more of a scheduled payment required to be paid by the Obligor is past due.

 

 “Deposit Date” means, with respect to any Payment Date and the related Collection Period, the Business Day immediately preceding such Payment Date.

 

“Depositor” means Daimler Retail Receivables, in its capacity as depositor, and its successors in such capacity.

 

“Depositor Basic Documents” means the Basic Documents to which the Depositor is a party.

 

“Depositor Limited Liability Company Agreement” means the Amended and Restated Limited Liability Company Agreement of the Depositor, dated as of September 30, 2009, by MBFS USA, as member.

 

“Determination Date” means, with respect to any Payment Date, the second Business Day preceding such Payment Date, commencing on October 13, 2016.

 

“Discount Rate” means, with respect to any Receivable, the greater of (i) the related APR and (ii) the Required Rate.

 

“▇▇▇▇▇” means the Commission’s Electronic Data Gathering, Analysis and Retrieval system.

 

“Eligible Deposit Account” means either (i) a segregated deposit account over which the Indenture Trustee or the Owner Trustee, as the case may be, has sole signature authority, maintained with an Eligible Institution meeting the requirements of clause (i) of the definition of the term “Eligible Institution” or (ii) a segregated trust account maintained with the trust department of an Eligible Institution meeting the requirements of clause (ii) of the definition of the term “Eligible Institution”, in each case bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Securityholders, the Noteholders or the Certificateholders, as the case may be.

 

“Eligible Institution” means (i) the corporate trust department of either Trustee or (ii) the corporate trust department of any other depository institution organized under the laws of the United States or any State or incorporated under the laws of a foreign jurisdiction with a branch or agency located in the United States or any State qualified to take deposits and subject to supervision and examination by federal or state banking authorities (a) which at all times has either (1) a long-term unsecured debt rating of at least “AA” from Standard & Poor’s and “BBB” from Fitch or (2) a long-term unsecured debt rating, short-term unsecured debt rating or a certificate of deposit rating otherwise acceptable to the Rating Agencies and (b) whose deposits are insured by the Federal Deposit Insurance Corporation.

 

 

 

 

 

“Eligible Investments” means, at any time, any one or more of the following obligations, instruments, investments and securities:

 

 

 

 

 

 

 

 

 

 

 

term rating of less than “AA” from Standard & Poor’s and “AA” from Fitch or a short-term rating of less than “A-1” from Standard & Poor’s and “F1” from Fitch;

 

provided, that each of the foregoing investments shall mature no later than the Deposit Date immediately following the Collection Period in which such investment was made, and shall be required to be held to such maturity.

 

Notwithstanding anything to the contrary contained in this definition, (a) no Eligible Investment may be purchased at a premium, (b) no obligation or security shall be an “Eligible Investment” unless (i) the Indenture Trustee has Control over such obligation or security and (ii) at the time the Indenture Trustee first obtained Control or the Indenture Trustee became the Entitlement Holder with respect to such obligation or security, the Indenture Trustee did not have notice of any adverse claim with respect thereto within the meaning of Section 8‑102 of the UCC and (c) with respect to investments above that require a rating of “A-1” from Standard & Poor’s, such investments in certain short-term debt of issuers or deposits in institutions rated “A-1” by Standard & Poor’s will be permitted so long as (1) the total amount of investments in “A-1” issuers or deposits in “A-1” institutions must be limited to investments of the amount on deposit in the Collection Account and (2) the total amount of “A-1” investments shall not represent more than 20% of the Note Balance as of any date.

 

For purposes of this definition, any reference to the highest available credit rating of an obligation means the highest available credit rating for such obligation, or such lower credit rating (as approved in writing by each Rating Agency) as will not result in the qualification, downgrading or withdrawal of the rating then assigned to any Securities by such Rating Agency.

 

“Eligible Servicer” means a Person which, at the time of its appointment as Servicer, (i) has a net worth of not less than $50,000,000, (ii) is servicing a portfolio of motor vehicle retail installment sale contracts or motor vehicle loans, (iii) is legally qualified, and has the capacity, to service the Receivables, (iv) has demonstrated the ability to service a portfolio of motor vehicle installment sales contracts and installment loans similar to the Receivables professionally and competently in accordance with standards of skill and care that are consistent with prudent industry standards and (v) is qualified and entitled to use pursuant to a license or other written agreement, and agrees to maintain the confidentiality of, the software which the Servicer uses in connection with performing its duties and responsibilities under the Sale and Servicing Agreement or obtains rights to use, or develops at its own expense, software which is adequate to perform its duties and responsibilities under the Sale and Servicing Agreement.

 

“Entitlement Holder” has the meaning specified in Section 8‑102 of the UCC.

 

“Entitlement Order” has the meaning specified in Section 8‑102 of the UCC.

 

“ERISA” means the Employee Retirement Income Security Act of 1974.

 

“Event of Default” has the meaning specified in Section 5.01 of the Indenture.

 

“Excess Collections” means, with respect to any Payment Date, any Available Funds remaining after the distributions have been made pursuant to Section 2.08(a)(i) through (a)(viii) or Section 2.08(f)(i) through (f)(vi) of the Indenture.

 

 

 

 

“Exchange Act” means the Securities Exchange Act of 1934.

 

“Exchange Act Reports” means any reports on Form 10‑D, Form 8‑K or Form 10‑K required to be filed by the Depositor with respect to the Issuer under the Exchange Act.

 

“Executive Officer” means, with respect to any (i) corporation, limited liability company or depository institution, the chief executive officer, the chief operating officer, the chief financial officer, the president, any Vice President, the secretary or the treasurer of such entity and (ii) partnership, any general partner thereof.

 

“Expenses” means any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever.

 

“FATCA” means Sections 1471 through 1474 of the Code and any current or future regulations or official interpretations thereof.

 

“FATCA Withholding Tax” means any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to FATCA.

 

“Final Scheduled Payment Date” means the Class A‑1 Final Scheduled Payment Date, the Class A‑2A Final Scheduled Payment Date, the Class A‑3 Final Scheduled Payment Date or the Class A‑4 Final Scheduled Payment Date as the context may require.

 

“Financed Vehicle” means, with respect to any Receivable, the related new or pre-owned Mercedes-Benz or smart automobile, together with all accessions thereto, securing the related Obligor’s indebtedness under such Receivable.

 

“Financial Asset” has the meaning specified in Section 8‑102(a)(9) of the UCC.

 

“First-Tier Assignment” means the first-tier assignment in substantially the form attached as Exhibit B to the Receivables Purchase Agreement.

 

“Fitch” means Fitch Ratings, Inc., or any successor that is a nationally recognized statistical rating organization.

 

 “Form 10-D Disclosure Item” means, with respect to any Person, any event specified in Part II of Schedule C to the Sale and Servicing Agreement for which such Person is the responsible party, if such Person or in the case of the Owner Trustee or Indenture Trustee, a Responsible Officer of such Person, has actual knowledge of such event.

 

“Form 10-K Disclosure Item” means, with respect to any Person, (i) any Form 10-D Disclosure Item and (ii) any additional items specified in Part III of Schedule C of the Sale and Servicing Agreement for which such Person is the responsible party, or if such Person is the Indenture Trustee or the Owner Trustee, a Responsible Officer of such Person has actual knowledge of such event.

 

 

 

 

“Governmental Authority” means the United States, any State or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

“Grant” means to mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create and ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a security interest in and a right of set-off against, deposit, set over and confirm pursuant to the Indenture.  A Grant of the Collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other monies payable thereunder, to give and receive notices and other commu-nications, to make waivers or other agreements, to exercise all rights and options, to bring Pro-ceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.

 

“Holder” means a Certificateholder or a Noteholder, as the context may require.

 

“Indemnified Parties” means the Owner Trustee and its officers, directors, successors, agents and servants.

 

“Indenture” means the Indenture, dated as of September 1, 2016, between the Issuer and the Indenture Trustee.

 

“Indenture Trustee” means U.S. Bank National Association, in its capacity as Indenture Trustee under the Indenture, and its successors in such capacity.

 

“Independent” means, with respect to any Person, that such Person (i) is in fact independent of the Issuer, any other obligor on the Notes, the Depositor, the Seller, the Servicer and any of their respective Affiliates, (ii) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Depositor, the Seller, the Servicer or any of their respective Affiliates and (iii) is not connected with the Issuer, any such other obligor, the Depositor, the Seller, the Servicer or any of their respective Affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.

 

“Independent Certificate” means a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.01 of the Indenture, made by an Independent appraiser or other expert appointed by an Issuer Order and acceptable to the Indenture Trustee in the exercise of reasonable care, and such opinion or certificate shall state that the signer has read the definition of “Independent” in the Indenture and that the signer is Independent within the meaning thereof.

 

“Initial Note Balance” means, as the context may require, with respect to (i) all of the Notes, $1,497,970,000 or (ii) any Note, an amount equal to the initial denomination of such Note.

 

“Insolvency Event” means, with respect to any Person, (i) the making of a general assignment for the benefit of creditors; (ii) the filing of a voluntary petition in bankruptcy;

 

 

 

 

(iii) being adjudged as bankrupt or insolvent, or having had entered against such Person an order for relief in any bankruptcy or insolvency Proceeding; (iv) the filing by such Person of a petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any Insolvency Laws; (v) the filing by such Person of an answer or other pleading admitting or failing to contest the material allegations of a petition filed against such Person in any proceeding specified in clause (viii) below; (vi) the seeking, consenting to or acquiescing in the appointment of a trustee, receiver, liquidator or similar official of such Person or of all or any substantial part of the assets of such Person; (vii) the failure by such Person generally to pay its debts as such debts become due; (viii) the failure to obtain dismissal within 60 days of the commencement of any Proceeding against such Person seeking (a) reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, or (b) the appointment of a trustee, liquidator, receiver or similar official, in each case of such Person or of such Person’s assets or any substantial portion thereof; and (ix) the taking of action by such Person in furtherance of any of the foregoing.

 

“Insolvency Laws” means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.

 

“Insurance Proceeds” means proceeds paid by any insurer under a comprehensive and collision or limited dual interest insurance relating to a Receivable, other than funds used for the repair of the related Financed Vehicle or otherwise released to the related Obligor in accordance with normal servicing procedures, after reimbursement to the Servicer for expenses recoverable under the related insurance policy.

 

“Interest Carryover Shortfall Amount” means, with respect to any Payment Date and a Class of Notes, the excess, if any, of the Interest Distributable Amount for that Class of Notes on the immediately preceding Payment Date over the amount in respect of interest that is actually deposited in the Note Payment Account with respect to that Class of Notes on that preceding Payment Date, plus, to the extent permitted by Applicable Law, interest on the amount of interest due but not paid to such Noteholders on that preceding Payment Date at the applicable Interest Rate for the related Interest Period.

 

“Interest Distributable Amount” means, with respect to any Payment Date and a Class of Notes, the sum of the Monthly Interest Distributable Amount and the Interest Carryover Shortfall Amount for that Class of Notes for that Payment Date.

 

“Interest Period” means, with respect to any Payment Date and the (i) Class A‑1 Notes, the period from, and including, the prior Payment Date (or from, and including, the Closing Date with respect to the first Payment Date) to, but excluding, the current Payment Date and (ii) the Class A-2A Notes, Class A‑3 Notes and the Class A‑4 Notes, the period from, and including, the 15^th day of the prior calendar month (or from, and including, the Closing Date with respect to the first Payment Date) to, but excluding, the 15^th day of the current calendar month (assuming each month has 30 days).

 

 

 

 

“Interest Rate” means the Class A‑1 Interest Rate, the Class A‑2A Interest Rate, the Class A‑3 Interest Rate and the Class A‑4 Interest Rate, as applicable.

 

“Investor Report” means a report of the Servicer, delivered pursuant to Section 3.10 of the Sale and Servicing Agreement, substantially in the form of Exhibit B thereto.

 

“IRS” means the Internal Revenue Service.

 

“Issuer” means Mercedes-Benz Auto Receivables Trust 2016-1, a Delaware statutory trust, until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained in the Indenture and required by the TIA, each other obligor on the Notes.

 

“Issuer Basic Documents” means the Basic Documents to which the Issuer is a party.

 

“Issuer Order” or “Issuer Request” means a written order or request signed in the name of the Issuer by any Authorized Officer of the Issuer and delivered to the Indenture Trustee by the Administrator, if signed by an officer of the Administrator, or at the written direction of the Depositor, if signed by an officer of the Owner Trustee.

 

“Item 1119 Party” means the Depositor, the Seller, the Servicer, the Indenture Trustee, the Owner Trustee, the Asset Representations Reviewer and any other material transaction party, as identified in Schedule B to the Sale and Servicing Agreement.

 

“Lien” means any security interest, lien, claim, charge, pledge, equity or encumbrance of any kind other than tax liens, mechanics’ or materialmen’s liens, judicial liens and any other liens that may attach to a Financed Vehicle by operation of law.

 

“Maryland Vehicle Sales Finance Act” means Maryland Code Annotated, Financial Institutions §11-401 et seq.

 

“MBFS USA” means Mercedes-Benz Financial Services USA LLC, a Delaware limited liability company.

 

“Monthly Interest Distributable Amount” means, with respect to any Payment Date and any Class of Notes, the interest due on that Class of Notes for the related Interest Period calculated based on the Interest Rate for that Class of Notes for the related Interest Period and the principal amount of that Class of Notes on the preceding Payment Date, after giving effect to all payments of principal on such Class of Notes on or prior to that Payment Date, or, in the case of the first Payment Date, on the original principal amount of that Class of Notes as of the Closing Date.

 

“Monthly Payment” means, with respect to any Receivable, the amount of each fixed monthly payment payable to the obligee under such Receivable in accordance with the terms thereof, net of any portion of such monthly payment that represents late payment charges, extension fees or similar items.

 

 

 

 

 

Servicer Termination Event and (iii) with respect to (a)  Standard & Poor’s, Daimler AG’s short-term unsecured debt is rated at least “A-1” by Standard & Poor’s and (b) Fitch, Daimler AG’s short-term unsecured debt is rated at least “F1” by Fitch.

 

“Monthly Servicing Fee” means, for any Collection Period, the fee payable to the Servicer on the related Payment Date for services rendered during such Collection Period, which is equal to the product of 1/12 of 1.00% (or 1/6 of 1.00% in the case of the first Payment Date) and the Pool Balance as of the first day of that Collection Period (or as of the Cutoff Date in the case of the first Payment Date).

 

“Monthly Trustee Fees” means the monthly fees, expenses and indemnification amounts payable in accordance with the Basic Documents to the Trustees on each Payment Date for the related Collection Period for performing their respective obligations under the Basic Documents.

 

“Net Liquidation Proceeds” means (i) all amounts received by the Servicer, from whatever source (including Insurance Proceeds), with respect to any Defaulted Receivable during the Collection Period in which such Receivable became a Defaulted Receivable, minus (ii) the sum of (a) expenses incurred by the Servicer in connection with the repossession and disposition of the related Financed Vehicle (to the extent not previously reimbursed to the Servicer) and (b) all payments required by Applicable Law to be remitted to the related Obligor.

 

“Net Losses” means, with respect to any Collection Period, the difference (which may be positive or negative) of (i) the aggregate Principal Balance of all Receivables that became Defaulted Receivables during such Collection Period and (ii) the aggregate Net Liquidation Proceeds and Recoveries received by the Servicer during such Collection Period.

 

“Nonrecoverable Advance” means an Advance which the Servicer determines in its sole discretion is non-recoverable from payments made on or in respect of the related Receivable.

 

“Note Balance” means, at any time, the aggregate principal amount of all Notes that are Outstanding at such time or the aggregate principal amount of all Notes of the Controlling Class or a particular Class that are Outstanding at such time, as the context requires.

 

“Note Depository Agreement” means the agreement, dated the Closing Date, between the Issuer and The Depository Trust Company, as the initial Clearing Agency, relating to the Notes.

 

“Note Factor” means, with respect to each Class of Notes as of any Payment Date, a four or more digit decimal figure equal to (i) the product of (a) the Note Balance of such Class of Notes as of such Payment Date (after giving effect to any reductions thereof to be made on such Payment Date) and (b) 1.000000, divided by (ii) the original principal amount of such Class of Notes.

 

“Note Owner” means, with respect to any Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, 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).

 

 

 

“Note Payment Account” means the account designated as such, and established and maintained pursuant to Section 4.01(a) of the Sale and Servicing Agreement.

 

“Note Register” and “Note Registrar” have the respective meanings specified in Section 2.05(a) of the Indenture.

 

“Noteholder” means the Person in whose name a Note is registered on the Note Register.

 

“Noteholder FATCA Information” means, with respect to any Noteholder or holder of an interest in a Note, information sufficient to eliminate the imposition of, or determine the amount of, U.S. withholding tax under FATCA.

 

“Noteholder Tax Identification Information” means a correct, complete and properly executed U.S. IRS Form W-9 or applicable Form W-8 (with appropriate attachments), or any successor form, as applicable.

 

“Notes” means the Class A Notes.

 

“Obligor” means, with respect to any Receivable, the purchaser or co‑purchasers of the related Financed Vehicle purchased in part or in whole by the execution and delivery of a Receivable or any other Person who owes or may be liable for payments under a Receivable.

 

“Officer’s Certificate” means, with respect to the Depositor, the Servicer or any other entity, a certificate signed by an Authorized Officer of the Depositor, the Servicer or such other entity, as the case may be.

 

“Opinion of Counsel” means a written opinion of counsel who may, except as otherwise provided in a Basic Document, be an employee of or counsel to MBFS USA, the Depositor or any of their respective Affiliates and, in the case of an opinion of counsel to be delivered to a party to the Basic Documents or another entity, (i) is delivered by counsel reasonably acceptable to the related recipient and (ii) is addressed to such recipient.

 

“Optional Purchase” means the exercise by the Servicer of its option to purchase all remaining Receivables from the Issuer on any Payment Date following the last day of a Collection Period as of which the Pool Balance is 5% or less of the Cutoff Date Pool Balance.

 

“Original Trust Agreement” means the Trust Agreement, dated as of June 17, 2016, between the Depositor and the Owner Trustee, pursuant to which the Issuer was created.

 

“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under the Indenture except:

 

 

 

 

 

 

notice of such redemption must have been duly given pursuant to the Indenture or provision for such notice must have been made in a manner satisfactory to the Indenture Trustee; and

 

 

provided, however, that in determining whether the Noteholders of the requisite principal amount of the Notes Outstanding have given any request, demand, authorization, direction, notice, consent or waiver under the Indenture or under any other Basic Document, Notes owned by the Issuer, any other obligor upon the Notes, the Depositor, the Seller, the Servicer or any of their respective Affiliates shall be disregarded and deemed not to be Outstanding unless all of the Notes of the related Class or Classes are owned by the Issuer, any other obligor upon the Notes, the Depositor, the Seller, the Servicer or any of their respective Affiliates, except that, in determining whether the Indenture Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Notes that a Responsible Officer of the Indenture Trustee knows to be so owned shall be so disregarded.  Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer, any other obligor upon the Notes, the Depositor, the Seller, the Servicer or any of their respective Affiliates.

 

“Owner Trust Estate” means the $1 capital contribution from the Depositor and the Trust Property.

 

“Owner Trustee” means Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee under the Trust Agreement, and any successor in such capacity.

 

“Paying Agent” means the Indenture Trustee or any other Person that meets the eligibility standards specified in Section 6.11 of the Indenture and is authorized by the Issuer to make or cause to be made payments to and distributions from the Collection Account, the Note Payment Account and the Reserve Fund, including payments of principal or interest on the Notes or the Certificates on behalf of the Issuer.  The Indenture Trustee shall be the initial Paying Agent.

 

“Payment Date” means the date on which the Issuer will pay interest and principal on the Notes, which will be the 15^th day of each month or, if any such day is not a Business Day, the next Business Day, commencing October 17, 2016.

 

“Pennsylvania Motor Vehicle Sales Finance Act” means 69 P.S. § 601 et seq.

 

“Permitted Lien” means, with respect to any Receivable or Financed Vehicle, any tax lien, mechanics’ lien or lien that attaches to a Receivable or Financed Vehicle by operation of law and arises solely as a result of an action or omission of the related Obligor.

 

“Performance Certification” means each certification delivered to the Certifying Person pursuant to Section 9.06 of the Sale and Servicing Agreement.

 

 

 

 

“Person” means any legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, limited liability partnership, trust, unincorporated organization or government or any agency or political subdivision thereof, or any other entity of whatever nature.

 

“Personally Identifiable Information” has the meaning stated in the Asset Representations Review Agreement.

 

“Plan Asset Regulation” means 29 C.F.R. Section 2510.3-101 issued by the United States Department of Labor, as modified by Section 3(42) of ERISA.

 

“Pool Balance” means, as of any date, the aggregate Principal Balance of the Receivables as of such date; provided, however, that if the Receivables are purchased by the Servicer pursuant to Section 8.01(a) of the Sale and Servicing Agreement or are sold or otherwise liquidated by the Indenture Trustee following an Event of Default pursuant to Section 5.04 of the Indenture, the Pool Balance shall be deemed to be zero as of the last day of the Collection Period during which such purchase, sale or other liquidation occurs.

 

“Predecessor Note” means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 2.06 of the Indenture in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.

 

“Prepayment” means any prepayment, whether in part or in full, in respect of a Receivable.

 

“Principal Balance” means, with respect to any Receivable as of any date, the Amount Financed under such Receivable minus the sum of (i) that portion of all Monthly Payments actually received on or prior to such date allocable to principal using the Simple Interest Method and (ii) any Prepayment applied to reduce the unpaid principal balance of such Receivable; provided, however, that the Principal Balance of a (a) Defaulted Receivable shall be zero as of the last day of the Collection Period during which it became a Defaulted Receivable and (b) Purchased Receivable shall be zero as of the last day of the Collection Period during which it became a Purchased Receivable.

 

“Priority Principal Distributable Amount” means, with respect to any Payment Date, the excess, if any, of the Note Balance of the Class A Notes as of such Payment Date (before giving effect to any payments made to Noteholders on that Payment Date) over the Adjusted Pool Balance as of the last day of the preceding Collection Period; provided, however, that the Priority Principal Distributable Amount for each Payment Date on and after the Final Scheduled Payment Date for any Class of Class A Notes will not be less than the amount that is necessary to reduce the outstanding principal balance of such Class of Notes to zero.

 

“Proceeding” means any suit in equity, action at law or other judicial or administrative proceeding.

 

 

 

 

“Prospectus” means the prospectus, dated September 9, 2016, relating to the initial offer and sale of the Notes.

 

“Protected Purchaser” has the meaning specified in Section 8-303 of the UCC.

 

“Provided Information” means, with respect to (i) the Indenture Trustee, the Servicing Criteria Assessment provided under Section 9.05 of the Sale and Servicing Agreement by or on behalf of the Indenture Trustee and (ii) the Servicer, the information provided pursuant to Sections 3.11 and 3.12 of the Sale and Servicing Agreement, by or on behalf of the Servicer.

 

“PTCE” means Prohibited Transaction Class Exemption.

 

“PTCE 95-60” means Prohibited Transaction Class Exemption 95-60.

 

“Purchase Amount” means, for a Receivable, an amount equal to the sum of (i) the Principal Balance of such Receivable plus (ii) the amount of accrued but unpaid interest on such Principal Balance at the related APR to the last day of the Collection Period of repurchase or purchase.

 

“Purchased Receivable” means a Receivable purchased or repurchased, as applicable, as of the last day of a Collection Period as to which payment of the Purchase Amount has been made by the Servicer pursuant to Section 3.03, 3.08 or 8.01 of the Sale and Servicing Agreement or by the Seller pursuant to Section 2.05 of the Sale and Servicing Agreement or Section 3.04 of the Receivables Purchase Agreement.

 

“Purchaser” means Daimler Retail Receivables, in its capacity as purchaser of the Receivables under the Receivables Purchase Agreement, and its successors in such capacity.

 

“Purchaser Basic Documents” means the Basic Documents to which the Purchaser is a party.

 

“Rating Agency” means Standard & Poor’s or Fitch; provided, however, that if either of Standard & Poor’s and Fitch cease to exist, Rating Agency shall mean any nationally recognized statistical rating organization or other comparable Person designated by the Issuer to replace such Person, written notice of which designation shall have been given to the Depositor, the Servicer and the Trustees.

 

“Rating Agency Condition” means with respect to any action and each Rating Agency, either (a) written confirmation by that Rating Agency that such action will not cause such Rating Agency to qualify, reduce or withdraw any of its then-current ratings assigned to the Notes or (b) that such Rating Agency has been given at least ten days’ prior written notice of such action and such Rating Agency has not  issued any written notice that such action would cause such Rating Agency to qualify, reduce or withdraw any of its then-current ratings assigned to the Notes.

 

“Receivable” means each motor vehicle retail installment sale contract or installment loan identified on the Schedule of Receivables.

 

 

 

“Receivable Files” has the meaning specified in Section 2.06 of the Sale and Servicing Agreement.

 

“Receivables Purchase Agreement” means the Receivables Purchase Agreement, dated as of September 1, 2016, between the Seller and the Purchaser.

 

“Receivables Purchase Price” means $1,591,275,988.02.

 

“Record Date” means, with respect to (i) the Certificates and any Payment Date, the close of business on the Business Day immediately preceding such Payment Date and (ii) the Notes and any Payment Date or Redemption Date, the close of business on the Business Day preceding such Payment Date or Redemption Date; provided, however, that if Definitive Notes have been issued pursuant to Section 2.12 of the Indenture, Record Date shall mean, with respect to any Payment Date or Redemption Date, the last day of the preceding Collection Period.

 

“Recoveries” means, with respect to any Collection Period following the Collection Period in which a Receivable became a Defaulted Receivable, (i) all amounts received by the Servicer from whatever source (including Insurance Proceeds) with respect to such Defaulted Receivable during such Collection Period, minus (ii) the sum of (a) expenses incurred by the Servicer in connection with the repossession and disposition of the related Financed Vehicle (to the extent not previously reimbursed to the Servicer) and (b) all payments required by law to be remitted to the related Obligor.

 

“Redemption Date” means, in the case of a redemption of the Notes pursuant to Section 10.01 of the Indenture, the Payment Date specified by the Servicer pursuant to such Section.

 

“Redemption Price” means, in the case of a redemption of the Notes pursuant to Section 10.01 of the Indenture, an amount equal to the unpaid principal amount of the Notes redeemed plus accrued and unpaid interest thereon through the related Interest Period at the related Interest Rates.

 

“Regular Principal Distributable Amount” means, with respect to any Payment Date, an amount equal to the lesser of (i) the Note Balance of the Notes on that Payment Date (before giving effect to any payments of principal made to Noteholders on that Payment Date) and (ii) an amount equal to the amount, if any, by which the Note Balance of the Notes on that Payment Date (before giving effect to any payments of principal made to Noteholders on that Payment Date) exceeds the excess, if any, of the Adjusted Pool Balance as of the last day of the related Collection Period minus the Target Overcollateralization Amount, less the amount of any Priority Principal Distributable Amount.

 

“Regulation AB” means subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, subject to such clarification and interpretation as has been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

 

 

 

 

“Reportable Event” means any event required to be reported on Form 8-K, including each event specified on Part IV of Schedule C (i) for which such Person is the responsible party and (ii) of which such Person (or in the case of the Indenture Trustee, as Responsible Officer of such Person) has actual knowledge.

 

“Repurchase Request” means a request by a Requesting Party to the Seller to repurchase a Receivable due to an alleged breach of a representation and warranty set forth in Section 3.03 of the Receivables Purchase Agreement and Exhibit A of the Sale and Servicing Agreement.

 

“Representatives” means Citigroup Global Markets, Inc., BNP Paribas Securities Corp. and Mizuho Securities USA Inc., each in its capacity as representative of the Underwriters.

 

“Requesting Party” means the Issuer, the Owner Trustee, the Indenture Trustee (acting at the direction of the Noteholders or Note Owners in accordance with Section 3.17(a) of the Sale and Servicing Agreement), any Noteholder or a Note Owner who provides to the requested party a written certification stating that the Note Owner is a beneficial owner of a Note, together with supporting documentation such as a trade confirmation, an account statement, a letter from a broker or dealer verifying ownership or another similar document evidencing ownership of a Note, in each case reasonably satisfactory to the requested party.

 

“Required Payment Amount” has, with respect to each Payment Date, the meaning specified in Section 4.08(a)(vii) of the Sale and Servicing Agreement.

 

“Required Rate” means 4.75% per annum.

 

“Required Rating” means, with respect to any entity, the short-term credit rating of the related entity is “A-1+” by Standard & Poor’s and “F1+” by Fitch.

 

“Reserve Fund” means the account designated as such, and established and maintained pursuant to Section 4.01(a) of the Sale and Servicing Agreement.

 

“Reserve Fund Amount” means, with respect to any Payment Date, the amount on deposit in and available for withdrawal from the Reserve Fund on such Payment Date (after giving effect to all deposits to and withdrawals from the Reserve Fund on the preceding Payment Date (or, in the case of the first Payment Date, the Closing Date), including all interest and other investment earnings (net of losses and investment expenses) earned on such amount on deposit therein during the related Collection Period.

 

“Reserve Fund Deficiency” means, as of any date, the excess of the Reserve Fund Required Amount over the Reserve Fund Amount.

 

“Reserve Fund Deposit” means an amount equal to $3,840,966.96 (i.e., 0.25% of the Cutoff Date Adjusted Pool Balance).

 

“Reserve Fund Draw Amount” means, with respect to any Payment Date and the related Collection Period, the lesser of (i) the amount, if any, by which the Required Payment Amount exceeds Available Collections and (ii) the Reserve Fund Amount (before giving effect to any deposits to or withdrawals from the Reserve Fund on such Payment Date); provided, however,

 

 

 

that the Reserve Fund Draw Amount shall equal the Reserve Fund Amount if (a) the sum of Available Collections and the Reserve Fund Amount equals or exceeds the Note Balance, accrued and unpaid interest thereon and all amounts required to be paid to the Servicer and the Trustees on such Payment Date or (b) on the last day of such Collection Period the Pool Balance is zero.

 

“Reserve Fund Property” means the Reserve Fund and all amounts, securities, investments, Financial Assets and other property deposited in or credited to the Reserve Fund.

 

“Reserve Fund Required Amount” means, for (i) any Payment Date on which the Note Balance is greater than $0, $3,840,966.96 (i.e., 0.25% of the Cutoff Date Adjusted Pool Balance) or (ii) if the Notes have been paid in full, $0; provided, however, that the Reserve Fund Required Amount may not exceed the Note Balance.

 

“Responsible Officer” means, in the case of (i) the Indenture Trustee, any officer within the Corporate Trust Office of the Indenture Trustee with direct responsibility for the administration of the Indenture, including any principal, managing director, president, Vice President, assistant treasurer, assistant secretary or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above-designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and (ii) the Owner Trustee, any officer in the Corporate Trust Office of the Owner Trustee with direct responsibility for the administration of the Issuer and, with respect to a particular corporate trust matter, any other officer of the Owner Trustee to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

 

“Review” means the completion by the Asset Representations Reviewer of the procedures listed under “Procedures to be Performed” in Schedule A of the Asset Representations Review Agreement for each Review Asset as further described in Section 3.03 thereof.

 

“Review Assets” means those Receivables identified by the Servicer pursuant to Section 3.16 of the Sale and Servicing Agreement as requiring a Review by the Asset Representations Reviewer following receipt of a Review Notice according to Section 3.01 of the Asset Representations Review Agreement.

 

“Review Notice” means a notice delivered to the Asset Representations Reviewer by the Indenture Trustee pursuant to Section 7.02 of the Indenture.

 

 

 “Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of September 1, 2016, among the Issuer, the Depositor, the Seller and the Servicer.

 

“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification” means the certification concerning the Issuer, to be signed by an officer of the Servicer or the Depositor and submitted to the Commission pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002.

 

 

 

 

 

“Schedule of Receivables” means the schedule of Receivables attached as Schedule A to the Receivables Purchase Agreement.

 

“Secretary of State” means the Secretary of State of the State of Delaware.

 

“Securities” means the Notes and the Certificates.

 

“Securities Act” means the Securities Act of 1933.

 

“Securitization Transaction” means any transaction involving a sale or other transfer of receivables directly or indirectly to an issuing entity in connection with an issuance of publicly offered or privately placed, rated or unrated asset-backed securities.

 

“Security Entitlement” has the meaning specified in Section 8‑102(a)(17) of the UCC.

 

“Securityholders” means the Noteholders and the Certificateholders.

 

“Seller” means MBFS USA, in its capacity as seller of the Receivables under the Receivables Purchase Agreement or the Sale and Servicing Agreement, as the case may be, and its successors in such capacity.

 

“Seller Basic Documents” means the Basic Documents to which the Seller is a party.

 

“Servicer” means MBFS USA, in its capacity as Servicer under the Sale and Servicing Agreement, and its successors in such capacity.

 

“Servicer Basic Documents” means the Basic Documents to which the Servicer is a party.

 

“Servicer Termination Event” has the meaning specified in Section 7.01 of the Sale and Servicing Agreement.

 

“Servicer Termination Notice” means a notice given to the Servicer pursuant to Section 7.01 of the Sale and Servicing Agreement terminating all rights and obligations of the Servicer under the Sale and Servicing Agreement, other than the indemnification obligations of the Servicer under Section 6.02 of the Sale and Servicing Agreement, which shall survive such termination.

 

“Servicing Criteria” means the “servicing criteria” set forth in Item 1122(d) of Regulation AB.

 

“Servicing Criteria Assessment” means a report of the Indenture Trustee’s assessment of compliance with the Servicing Criteria (as identified substantially in the form of Part I of Schedule C of the Sale and Servicing Agreement, with the Indenture Trustee being shown as the “Responsible Party”) during the immediately preceding calendar year, as set forth under Rules 13a‑18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.

 

“Servicing Officer” means any officer of the Servicer involved in, or responsible for, the administration and servicing of the Receivables whose name appears on a list of servicing

 

 

 

 

officers attached to an Officer’s Certificate furnished on the Closing Date to the Trustees by the Servicer, as such list may be amended from time to time by the Servicer in writing.

 

“Similar Law” has the meaning specified in Section 2.05(f) of the Indenture.

 

“Simple Interest Method” means the method of allocating a fixed level payment between principal and interest, pursuant to which a portion of such payment is allocated to interest in an amount equal to the product of the APR of the related Receivable multiplied by the unpaid Principal Balance of such Receivable multiplied by the period of time (expressed as a fraction of a year, based on either the actual number of days in the applicable calendar month and a 365‑day year or a 30-day month and a 360-day year, as applicable) elapsed since the preceding payment was made and the remainder of such payment is allocated to principal.

 

“Simple Interest Receivable” means any Receivable under which each payment is allocated between principal and interest in accordance with the Simple Interest Method.

 

“Standard & Poor’s” means S&P Global Ratings, a Standard & Poor’s Financial Services LLC business.

 

 “State” means any of the 50 ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ the District of Columbia.

 

“Statutory Trust Statute” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq.

 

“Successor Servicer” means any entity appointed as a successor to the Servicer pursuant to Section 7.02 of the Sale and Servicing Agreement.

 

“Supplemental Servicing Fee” means the sum of (i) all extension fees charged in connection with extensions of Receivables and (ii) any administration fees and charges and all late payment fees and Prepayment fees actually collected (from whatever source) on the Receivables.

 

“Target Overcollateralization Amount” means, with respect to any Payment Date, $38,409,669.62 (i.e., 2.50% of the Cutoff Date Adjusted Pool Balance).

 

“Test Complete” has the meaning stated in Section 3.03(c) of the Asset Representations Review Agreement.

 

 “Test Fail” has the meaning stated in Section 3.03(a) of the Asset Representations Review Agreement.

 

“Test Pass” has the meaning stated in Section 3.03(a) of the Asset Representations Review Agreement.

 

 “Total Servicing Fee” means, for any Collection Period and the related Payment Date, the sum of (i) the Monthly Servicing Fee for such Collection Period and (ii) all accrued but unpaid Monthly Servicing Fees for one or more prior Collection Periods.

 

 

 

 

“Total Trustee Fees” means, for any Collection Period and the related Payment Date, with respect to each of the Trustees, the sum of (i) the Monthly Trustee Fees for such Collection Period and (ii) all accrued but unpaid Monthly Trustee Fees for the previous Collection Period.

 

“Transfer” means a sale, transfer, assignment, participation, pledge or other disposition of a Certificate.

 

“Transition Costs” means the reasonable costs and expenses (including reasonable attorneys’ fees but excluding overhead) incurred or payable by the Successor Servicer in connection with the transfer of servicing (whether due to termination, resignation or otherwise), including allowable compensation of employees and overhead costs incurred or payable in connection with the transfer of the Receivable Files or any amendment to the Sale and Servicing Agreement required in connection with the transfer of servicing.

 

“Treasury Regulations” means regulations, including proposed or temporary regulations, promulgated under the Code.  References herein to specific provisions of proposed or temporary Treasury Regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.

 

“Trust Agreement” means the Amended and Restated Trust Agreement, dated as of September 1, 2016, between the Depositor and the Owner Trustee.

 

“Trust Estate” means all money, instruments, rights, and other property that are subject or intended to be subject to the lien and security interest of the Indenture for the benefit of the Noteholders (including all property and interests Granted to the Indenture Trustee), including all proceeds thereof.

 

“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force on the Closing Date, unless otherwise specifically provided in the Indenture.

 

“Trust Property” means, as of any date, the Receivables and other property related thereto sold, transferred, assigned and conveyed to the Issuer pursuant to Section 2.01(a) of the Sale and Servicing Agreement.

 

“Trustee” means either the Owner Trustee or the Indenture Trustee, as the context requires.

 

“Trustees” means the Owner Trustee and the Indenture Trustee.

 

“UCC” means, unless the context otherwise requires, the Uniform Commercial Code, as in effect in the relevant jurisdiction.

 

“Underwriters” mean the underwriters named in the Underwriting Agreement.

 

“Underwriting Agreement” means the Underwriting Agreement, dated September 9, 2016, among the Depositor, MBFS USA and the Representatives.

 

“United States” or “U.S.” means the United States of America.

 

 

 

 

“Vice President” of any Person means any vice president of such Person, whether or not designated by a number or words before or after the title “Vice President”, who is a duly elected officer of such Person.

 

“Yield Supplement Overcollateralization Amount” means, with respect to any Payment Date and the related Collection Period (or any day in such Collection Period), the aggregate amount by which the Principal Balance of each Receivable (other than a Defaulted Receivable or a Purchased Receivable) as of the last day of such Collection Period, exceeds the present value of all remaining Monthly Payments, calculated using the Discount Rate and assuming that all such Monthly Payments are made on the last day of each Collection Period and that each Collection Period has 30 days.  The Yield Supplement Overcollateralization Amount for each Payment Date shall equal the amount set forth below: