EXHIBIT 10.99
AEGIS AUTO FUNDING CORP.,
a Delaware Corporation, Seller
and
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Trustee and Backup Servicer
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1996
$17,561,371.61
AEGIS AUTO RECEIVABLES TRUST 1996-A
AUTOMOBILE RECEIVABLE PASS-THROUGH
CERTIFICATES
TABLE OF CONTENTS
Page
ARTICLE I
INTRODUCTION
Section 1.01. Definitions. . . . . . . . . . . 1
Section 1.02. Usage of Terms . . . . . . . . . 14
Section 1.03. Record Date. . . . . . . . . . . 14
Section 1.04. Section References . . . . . . . 14
ARTICLE II
CREATION OF TRUST
Section 2.01. Conveyance and Acceptance by
Trustee. . . . . . . . . . . . . . . . . . 15
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of
Seller . . . . . . . . . . . . . . . . . . 16
Section 3.02. Repurchase or Substitution Upon
Breach . . . . . . . . . . . . . . . . . . 23
Section 3.03. Custody of Documents . . . . . . 24
Section 3.04. Duties of Custodian. . . . . . . 27
Section 3.05. Instructions; Authority to Act . 27
Section 3.06. Custodian Fees; Indemnification 28
Section 3.07. Effective Period and Termination 28
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Servicing Duties . . . . . . . . 28
Section 4.02. Resignation of Backup Servicer.. 29
Section 4.03. Covenant of Backup Servicer. . . 29
Section 4.04. Servicing Fees . . . . . . . . . 30
Section 4.05. Costs and Expenses . . . . . . . 30
Section 4.06. Standard of Care . . . . . . . . 30
ARTICLE V
DISTRIBUTIONS; ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Accounts . . . . . . . . . . . . 31
Section 5.02. Collections. . . . . . . . . . . 31
Section 5.03. Application of Collections . . . 31
Section 5.04. Miscellaneous Servicer Collections 32
Section 5.05. Additional Deposits. . . . . . . 32
Section 5.06. Distributions. . . . . . . . . . 32
Section 5.07. Reserve Fund; Priority of
Distributions. . . . . . . . . . . . . . . 33
Section 5.08. Statements to Certificateholders; Tax
Returns. . . . . . . . . . . . . . . . . . 35
Section 5.09. Reliance on Information from the
Servicer . . . . . . . . . . . . . . . . . 39
ARTICLE VI
RIGHTS OF CERTIFICATEHOLDERS. . . . . . . . . . 39
ARTICLE VII
THE CERTIFICATES
Section 7.01. The Certificates . . . . . . . . 39
Section 7.02. Execution, Authentication of
Certificates . . . . . . . . . . . . . . . 40
Section 7.03. Registration of Transfer and
Exchange of Certificates . . . . . . . . . 40
Section 7.04. Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . 42
Section 7.05. Persons Deemed Owners. . . . . . 43
Section 7.06. Access to List of Certificateholders'
Names and Addresses. . . . . . . . . . . . 43
Section 7.07. Maintenance of Office or Agency. 43
Section 7.08. Notices to Certificateholders. . 43
ARTICLE VIII
THE SELLER
Section 8.01. Representations of Seller. . . . 43
Section 8.02. Liability of Seller; Indemnities 46
Section 8.03. Merger or Consolidation of, or
Assumption of
the Obligations of, Seller. . . . . . 47
Section 8.04. Limitation on Liability of Seller and
Others . . . . . . . . . . . . . . . . . . 48
Section 8.05. Seller May Own Certificates. . . 48
Section 8.06. Covenants of the Seller. . . . . 48
Section 8.07. Enforcement by Trustee . . . . . 50
Section 8.08. No Bankruptcy Petition . . . . . 52
ARTICLE IX
THE BACKUP SERVICER
Section 9.01. Representations of Backup Servicer 53
Section 9.02. Merger or Consolidation of, or
Assumption
of the Obligations of, or Resignation of
Backup Servicer. . . . . . . . . . . . . . . . . . . 54
Section 9.03. Limitation on Liability of Backup
Servicer and Others. . . . . . . . . . . . 54
Section 9.04. Successor Backup Servicer. . . . 55
Section 9.05. No Bankruptcy Petition . . . . . 55
ARTICLE X
BACKUP SERVICING DEFAULT
Section 10.01. Events of Backup Servicing Default
. . . . . . . . . . . . . . . . . . . . . 55
Section 10.02. Appointment of Successor. . . . 56
Section 10.03. Notification to Certificateholders 57
Section 10.04. Waiver of Past Defaults . . . . 57
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee . . . . . . . 57
Section 11.02. Trustee's Certificate . . . . . 60
Section 11.03. Trustee's Assignment of Purchased
Receivables. . . . . . . . . . . . . . . . 60
Section 11.04. Certain Matters Affecting Trustee 60
Section 11.05. Trustee Not Liable for Certificates
or Receivables . . . . . . . . . . . . . . 62
Section 11.06. Trustee May Own Certificates. . 63
Section 11.07. Trustee's Fees and Expenses . . 63
Section 11.08. Eligibility Requirements for Trustee
. . . . . . . . . . . . . . . . . . . . . 63
Section 11.09. Resignation or Removal of Trustee
. . . . . . . . . . . . . . . . . . . . . 63
Section 11.10. Successor Trustee . . . . . . . 64
Section 11.11. Merger or Consolidation of Trustee
. . . . . . . . . . . . . . . . . . . . . 65
Section 11.12. Appointment of Co-Trustee or
Separate Trustee . . . . . . . . . . . . . 65
Section 11.13. Representations and Warranties of
Trustee. . . . . . . . . . . . . . . . . . 66
Section 11.14. No Bankruptcy Petition. . . . . 67
ARTICLE XII
TERMINATION
Section 12.01. Termination of the Trust. . . . 67
Section 12.02. Optional Purchase of All
Receivables. . . . . . . . . . . . . . . . 69
Section 12.03. Notice. . . . . . . . . . . . . 69
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment . . . . . . . . . . . 69
Section 13.02. Protection of Title to Trust. . 70
Section 13.03. Limitation on Rights of
Certificateholders . . . . . . . . . . . . 71
Section 13.04. Governing Law . . . . . . . . . 71
Section 13.05. Notices . . . . . . . . . . . . 72
Section 13.06. Severability of Provisions. . . 72
Section 13.07. Assignment. . . . . . . . . . . 73
Section 13.08. Certificates Nonassessable and
Fully Paid . . . . . . . . . . . . . . . . 73
Section 13.09. Counterparts. . . . . . . . . . 73
Section 13.10. Limited Recourse to Seller. . . 73
Exhibit A Form of Certificates. . . . . . . . .A-1
Exhibit B Form of Trustee's Statement to
Certificateholders . . . . . . . . . . . . . . . . .B-1
Exhibit C Schedule of Receivables . . . . . . .C-1
Exhibit D Location of Servicer Files. . . . . .D-1
Exhibit E Receivable Characteristics (Cutoff Date)E-1
Exhibit F Wiring Instructions Form. . . . . . .F-1
Exhibit G Fee Schedule. . . . . . . . . . . . .G-1
Exhibit H Risk Default Insurance Policy . . . .H-1
Exhibit I VSI Insurance Policy. . . . . . . . .I-1
Exhibit J Form of Transferee Letter (Rule 144A
Transfer) . . . . . . . . . . . . . .J-1
Exhibit K Form of Transferee Letter (Non-Rule 144A
Transfer) . . . . . . . . . . . . . .K-1
Exhibit L Assignment. . . . . . . . . . . . . .L-5
Exhibit M Form of Trustee Certificate . . . . .M-1
Exhibit N Appointment of Custodian's Agent. . .N-1
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1996
This POOLING AND SERVICING AGREEMENT, dated
as of September 1, 1996, is made among AEGIS AUTO
FUNDING CORP., a Delaware corporation, as Seller, NORWEST
BANK MINNESOTA, NATIONAL ASSOCIATION, as Backup
Servicer, and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee for the Trust.
WITNESSETH THAT, in consideration of the mutual
agreements herein contained, each party agrees as follows for the
benefit of the other parties and for the benefit of the
Certificateholders and the other beneficiaries to the extent provided
herein:
ARTICLE I
INTRODUCTION
Section 1.01. Definitions. Whenever used in this
Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
"Accounts" shall mean the accounts and funds identified in
Section 5.01 hereof.
"Aegis Finance" means Aegis Auto Finance, Inc., a
Delaware corporation, its successors and assigns.
"Aegis Finance Servicing Agreement" means the Servicing
Agreement dated as of September 1, 1996 among Aegis Finance,
the Backup Servicer and the Trustee, and all amendments,
modifications and supplements thereto.
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under
common control with such Person. A Person shall be deemed to
be "controlled by" any other Person if such other Person
possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
"Agreement" means this Pooling and Servicing Agreement
executed by the Seller, the Backup Servicer and the Trustee, and
all amendments, modifications and supplements thereto.
"ALFI" means American Lenders Facilities, Inc., a
California corporation, its successors and assigns.
"Amount Financed" means, with respect to a Receivable,
the amount advanced under the Receivable toward the purchase
price of the Financed Vehicle and any related costs.
"Annual Percentage Rate" or "APR" means, with respect
to a Receivable, the annual rate of finance charges stated in the
Receivable.
"Available Interest Distribution Amount" means, for any
Distribution Date, the sum of the following amounts with respect
to the preceding Collection Period: (i) that portion of all
collections of Scheduled Payments on Receivables allocable to
interest; (ii) Liquidation Proceeds and other Recoveries to the
extent allocable to interest due on Liquidated Receivables and
Defaulted Receivables in accordance with the Servicer's customary
servicing procedures; (iii) Risk Default Insurance Proceeds to the
extent allocable to interest as determined by the Servicer; and (iv)
the Purchase Amount of each Receivable that became a Purchased
Receivable during the related Collection Period to the extent
attributable to accrued interest thereon; provided, however, that in
calculating the Available Interest Distribution Amount the
following will be excluded: all payments and proceeds (including
Liquidation Proceeds) of any Purchased Receivables the Purchase
Amount of which has been included in the Principal Distributable
Amount with respect to a prior Distribution Date.
"Available Principal Distribution Amount" means, for any
Distribution Date, the sum of the following amounts with respect
to the preceding Collection Period: (i) that portion of all
collections of Scheduled Payments and prepayments in full or in
part on Receivables allocable to principal; (ii) Liquidation Proceeds
and other Recoveries allocable to the principal amount of
Liquidated Receivables and Defaulted Receivables in accordance
with the Servicer's customary servicing procedures; (iii) Risk
Default Insurance Proceeds to the extent not allocable to interest
as determined by the Servicer; (iv) amounts deposited in the
Collection Account pursuant to Section 3.02(b) in respect of
Receivables that became Substitute Receivables during the related
Collection Period; and (v) to the extent attributable to principal,
the Purchase Amount of each Receivable that became a Purchased
Receivable during the preceding Collection Period; provided,
however, that in calculating the Available Principal Distribution
Amount the following will be excluded: all payments and proceeds
(including Liquidation Proceeds) of any Purchased Receivables the
Purchase Amount of which has been included in the Principal
Distributable Amount with respect to a prior Distribution Date.
"Backup Servicer" means Norwest Bank Minnesota,
National Association, until any successor Backup Servicer is
appointed or succeeds to the duties and obligations of the Backup
Servicer hereunder, and thereafter means the Eligible Servicer
appointed successor Backup Servicer pursuant to Section 9.02 or
10.02.
"Backup Servicer Fee" means the fee payable to the Backup
Servicer for services rendered during the respective Collection
Period, determined in accordance with Exhibit G hereto.
"Bankruptcy Code" means the federal Bankruptcy Code of
1978, as amended, 11 USC SECS 101 through 1330.
"Business Day" means any day other than a Saturday, a
Sunday, or a day on which banking institutions in the cities in
which the principal offices of the Trustee or the Servicer are
located, or New York, New York, or Jersey City, New Jersey
shall be authorized or obligated by law, executive order, or
governmental decree to be closed. Any action required to be taken
on a day which falls on a non-Business Day shall be conducted on
the next Business Day.
"Certificate" means any one of the Certificates executed by
the Trustee on behalf of the Trust and authenticated by the Trustee
in substantially the form set forth in Exhibit A hereto.
"Certificate Account" means the trust account designated as
such, established and maintained pursuant to Section 5.01.
"Certificate Balance" shall equal, initially, the aggregate
Principal Balance of the Receivables as of the Cutoff Date and,
thereafter, the initial Certificate Balance, reduced by all amounts
previously distributed to Certificateholders as principal.
"Certificate Factor" means, with respect to any Distribution
Date, a seven-digit decimal figure computed by the Trustee equal
to the aggregate Certificate Balance of the Certificates as of such
Distribution Date divided by the aggregate Original Certificate
Balance of the Certificates.
"Certificate Owner" means, with respect to any Certificate
held in book-entry form, the Person who is the beneficial owner
of such Certificate, as reflected on the books of the Clearing
Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such
Clearing Agency).
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar appointed pursuant to Section
7.03.
"Certificateholder" or "Holder" means the Person in whose
name the respective Certificate shall be registered in the Certificate
Register, except that, solely for the purposes of giving any
approval, consent, waiver, request or demand pursuant to this
Agreement, the interest evidenced by any Certificate registered in
the name of the Seller, the Servicer, the Backup Servicer, the
Trustee or any Affiliate of any of the foregoing shall not be taken
into account in determining whether the requisite percentage
necessary to effect any such consent, waiver, request or demand
shall have been obtained.
"Certificateholder Statement" means the Statement the form
of which is attached hereto as Exhibit B.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"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 30, 1996.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collection Account" means the trust account designated as
such, established and maintained pursuant to Section 5.01.
"Collection Period" means, with respect to a Distribution
Date, the calendar month immediately prior to such Distribution
Date. Any amount stated "as of the close of business of the last
day of a Collection Period" shall give effect to the following
calculations as determined as of the end of the day on such last
day: (1) all applications of collections, and (2) all distributions.
"Corporate Trust Office" means the office of the Trustee at
which its corporate trust business shall be administered, which
office at the date of this Agreement shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Services --Asset Backed
Administration, or such other address as shall be designated by the
Trustee in written notice to the Seller, the Backup Servicer, the
Servicer and each Certificateholder.
"Custodian" means the Person acting as Custodian of the
Trust pursuant to Section 3.03 of this Agreement, its successor in
interest and any successor custodian.
"Custodian Files" means the documents specified in Section
3.03(a).
"Cutoff Date" means September 24, 1996.
"DCR" means Duff & ▇▇▇▇▇▇ Credit Rating Co. or any
successors thereto.
"Dealer" means any licensed or franchised factory-
authorized motor vehicle dealer, or affiliate thereof, who sold a
Financed Vehicle to an Obligor and who originated the respective
Receivable which was acquired by Aegis Finance.
"Dealer Recourse" means, with respect to a Receivable, all
recourse rights against the Dealer that originated the Receivable,
and any successor Dealer.
"Defaulted Receivable" means any Receivable, other than
a Liquidated Receivable, as to which the Obligor became 180 days
past due in making Scheduled Payments during the prior Collection
Period.
"Depository Agreement" means an agreement entered
among the Seller, the Trustee and a Clearing Agency, in
connection with the issuance of the Certificates in book-entry
form.
"Determination Date" means, with respect to any
Distribution Date, the eighth (8th) Business Day of the calendar
month of such Distribution Date; provided, however, if such
Business Day is later than the eleventh (11th) day of such month,
then the Determination Date shall mean the next earlier Business
Day which is not later than the eleventh (11th) day of such
calendar month.
"Dissolution" means, with respect to the Seller, bankruptcy,
insolvency or dissolution.
"Distributable Amount" means, on any Distribution Date,
the sum of the Interest Distributable Amount and the Principal
Distributable Amount.
"Distribution Date" means, for each Collection Period, the
20th day of the month following the month in which the Collection
Period ends, or if the 20th day is not a Business Day, the next
following Business Day, beginning on the Initial Distribution Date.
"Eligible Account" means a segregated account (except as
otherwise permitted with respect to the Lock-Box Account) which
may be an account maintained with the Trustee, which is either (a)
maintained with an Eligible Institution, or (b) a segregated trust
account or similar account maintained with a federally or state
chartered depository institution subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 C.F.R.
SECS 9.10(b).
"Eligible Institution" means a depository institution or trust
company whose long-term unsecured debt obligations are rated at
least "A" by each Rating Agency and either "A" by S&P or "A2"
by Moody's (provided that, if only one such rating agency rates
such institution, such single rating shall suffice).
"Eligible Investments" means negotiable instruments or
securities or other investments (a) which, except in the case of
demand or time deposits, investments in money market funds and
repurchase obligations, are represented by instruments in bearer or
registered form or ownership of which is represented by book
entries by a clearing agency or by a Federal Reserve Bank in favor
of depository institutions eligible to have an account with such
Federal Reserve Bank who hold such investments on behalf of
their customers and (b) which evidence:
(i) direct obligations of, and obligations fully
guaranteed as to full and timely payment by, the United
States of America;
(ii) demand deposits, time deposits or certificates
of deposit of depository institutions or trust companies
incorporated under the laws of the United States of
America or any state thereof and subject to supervision and
examination by federal or state banking or depository
institution authorities; provided, however, that at the time
of the Trust's investment or contractual commitment to
invest therein, the short-term unsecured debt obligations of
such depository institution or trust company shall have
credit ratings from each Rating Agency and either S&P or
Moody's in the highest investment category granted by
each Rating Agency (and S&P or Moody's, as applicable);
(iii) commercial paper having, at the time of the
Trust's investment or contractual commitment to invest
therein, a rating from each Rating Agency and either S&P
or Moody's in the highest investment category by each
Rating Agency (and S&P or Moody's, as applicable);
(iv) bankers' acceptances issued by any
depository institution or trust company referred to in (ii)
above;
(v) investments in money market funds having
the highest investment category from each Rating Agency
or, if not rated by each Rating Agency or there is no
Rating Agency, either S&P or Moody's (provided that, for
purposes of this definition, such investments may include
money market funds sponsored by Norwest Bank
Minnesota, National Association, that have a credit rating
from either S&P or Moody's);
(vi) time deposits (having maturities of not more
than 30 days) or notes which are payable on demand by an
entity the commercial paper of which has the highest
investment category granted by each Rating Agency and
either S&P or Moody's; and
(vii) repurchase obligations with respect to any
security described in clause (i) above entered into with a
depository institution or trust company (acting as principal)
meeting the rating standards described in clause (ii) above.
Any Eligible Investments may be purchased by or through the
Trustee or any of its affiliates.
"Eligible Servicer" means any entity which, at the time of
its appointment as Backup Servicer, supervisory servicer, Servicer
or subservicer, and for so long as such entity is acting in such
capacity, (i) is servicing a portfolio of motor vehicle retail
installment sale contracts or motor vehicle loans, (ii) is legally
qualified (or is acting through an Affiliate which is legally
qualified) and has the capacity to service the Receivables, (iii) has
demonstrated the ability to professionally and competently service
a portfolio of similar contracts in accordance with industry
standards of skill and care, (iv) is qualified and entitled to use, and
agrees to maintain the confidentiality of, the software that the
Backup Servicer, supervisory servicer, Servicer or a subservicer
uses in connection with performing its duties and responsibilities
under this Agreement, a supervisory servicing agreement, the
Servicing Agreement or a subservicing agreement or obtains rights
to use or develops its own software which is adequate to perform
its duties and responsibilities under this Agreement, a supervisory
servicing agreement, the Servicing Agreement or a subservicing
agreement and (v) is approved by the Risk Default Insurer.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"Event of Backup Servicing Default" with respect to the
Backup Servicer means an event specified in Section 10.01.
"Event of Servicing Default" means an event specified in
paragraph VI of the Servicing Agreement.
"Excess Receipts" means, with respect to any Distribution
Date, the greater of (x) zero and (y) the remaining amount on
deposit in the Collection Account after distributions pursuant to
Section 5.06(d)(i) through (iii) have been made.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Final Scheduled Distribution Date" means May 20, 2002.
"Financed Vehicle" means an automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Fitch" means Fitch Investors Service, L.P.
"Initial Distribution Date" means October 21, 1996.
"Insurance Policy" means, with respect to a Receivable,
any comprehensive, collision, fire and theft insurance policy
required to be maintained by the Obligor with respect to the
Financed Vehicle, the VSI Insurance Policy, and any credit life
and disability insurance maintained by the Obligor or Seller and
benefitting the holder of the Receivable.
"Interest Carryover Shortfall" means, as of the close of any
Distribution Date, the excess of the Interest Distributable Amount
for such Distribution Date plus any outstanding Interest Carryover
Shortfall from the previous Distribution Date plus interest on such
outstanding Interest Carryover Shortfall, to the extent permitted
by law, at the Pass-Through Rate from such preceding Distribution
Date through the current Distribution Date, over the amount of
interest that the holders of the Certificates actually received on
such Distribution Date.
"Interest Distributable Amount" means, (i) for any
Distribution Date (other than the Initial Distribution Date), one-
twelfth of the product of (x) the Pass-Through Rate and (y) the
aggregate Certificate Balance as of the close of business on the
preceding Distribution Date (after giving effect to any distribution
of principal on the Certificates made on such preceding
Distribution Date) and (ii) for the Initial Distribution Date, 1/360th
of the product of the Pass-Through Rate and the aggregate
Certificate Balance as of the Closing Date.
"Lien" means a security interest, lien, charge, pledge,
equity or encumbrance of any kind.
"Liquidated Receivable" means any Receivable, other than
a Receivable that first became a Defaulted Receivable, liquidated
by the Servicer through sale of the Financed Vehicle or otherwise.
"Liquidation Proceeds" means the moneys collected during
the respective Collection Period on a Liquidated Receivable,
whether through foreclosure or otherwise, other than Risk Default
Insurance Proceeds, net of the sum of any amounts expended by
the Servicer for the account of the Obligor and the expenses
incurred in the liquidation.
"Lock-Box Account" means the account(s) designated as
such, established and maintained pursuant to Section 5.01 hereof,
into which account shall be deposited only those moneys collected
with respect to the Receivables as contemplated herein and moneys
collected with respect to other retail installment sales contracts
originated or purchased by Aegis Finance or its Affiliates.
"Lock-Box Account Depository" means ▇▇▇▇▇ Fargo Bank,
N.A., acting as Lock-Box Account Depository hereunder, its
successors in interest and any successors appointed pursuant to
paragraph IX of the Servicing Agreement.
"Majority Certificateholders" means Holders of Certificates
evidencing not less than 51% of the Voting Interests thereof.
"Miscellaneous Servicer Collections" means, with respect
to a Collection Period, all late charges, extension fees and
recoveries of expenses relating to liquidation, repossession and
other costs previously incurred by the Servicer.
"Monthly Servicing Certificate" means the certificate
substantially in the form of Schedule B to the Servicing
Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service or any
successors thereto.
"Net Loss" means, with respect to a Collection Period, the
sum of the Principal Balances of Receivables that became
Liquidated Receivables or Defaulted Receivables during such
Collection Period, minus Recoveries and Risk Default Insurance
Proceeds (to the extent allocable to principal) received in such
Collection Period.
"Obligor" means, with respect to a Receivable, the
purchaser or co-purchasers of the Financed Vehicle and/or any
other Person who owes payments under such Receivable.
"Officer's Certificate" means a certificate signed by the
chairman of the board, the president, any vice chairman of the
board, any vice president, any assistant vice president, any trust
officer, the treasurer, the controller or any assistant treasurer or
any assistant controller of the Seller, the Trustee, the Servicer, the
Custodian or the Backup Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel
who may but need not be counsel to the Seller or Servicer, which
counsel shall be acceptable to the Trustee.
"Optional Purchase Percentage" means 10% of the Original
Pool Balance.
"Original Certificate Balance" means, as to any Certificate,
the initial certificate balance stated on the face of such Certificate.
"Original Pool Balance" means the initial Principal Balance
of all Receivables as of the Cutoff Date.
"Pass-Through Rate" means 9.00% per annum.
"Percentage Interest" means, with respect to any
Certificate, the percentage ownership interest of such Certificate
in the aggregate of amounts distributable hereunder to the
Certificates. With respect to any Certificate, the Percentage
Interest evidenced thereby shall equal the Original Certificate
Balance thereof divided by the aggregate Original Certificate
Balance of the Certificates.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or
political subdivision thereof.
"Plan" shall have the meaning set forth in Section 7.03.
"Pool Balance" means, as of the day of calculation, the
aggregate Principal Balance of the Receivables less Net Losses.
"Pool Factor" means, as of any Distribution Date, a seven-
digit decimal figure equal to the Pool Balance for such Distribution
Date divided by the Original Pool Balance.
"Principal Balance" means, with respect to any Receivable
at any time, the Amount Financed minus the sum of (a) the portion
of all payments made by or on behalf of the related Obligor and
allocable to principal using the Simple Interest Method and (b) the
portion of any payment of the Purchase Amount with respect to the
Receivable allocable to principal, calculated as of the close of
business on the last day of the prior Collection Period (or, prior to
the end of the first Collection Period, calculated as of the close of
business on the day immediately prior to the Cutoff Date).
"Principal Carryover Shortfall" means, as of the close of
any Distribution Date, the excess of the Principal Distributable
Amount plus any outstanding Principal Carryover Shortfall from
the preceding Distribution Date over the amount of principal that
the holders of the Certificates actually received on such
Distribution Date pursuant to Section 5.06.
"Principal Distributable Amount" means, with respect to
any Distribution Date the sum of: (i) the portion of all Scheduled
Payments allocable to principal (including delinquent payments)
collected during the preceding Collection Period on the
Receivables, (ii) the principal portion of all prepayments in full or
in part received during the preceding Collection Period (without
duplication of amounts included in clause (i) above); (iii) the
Principal Balance of each Receivable that became a Purchased
Receivable during the preceding Collection Period (without
duplication of amounts referred to in clauses (i) and (ii) above);
(iv) the Principal Balance of each Receivable that became a
Liquidated Receivable during the preceding Collection Period
(without duplication of amounts included in clause (i), (ii) and (iii)
above), and (v) the Principal Balance of each Receivable that
became a Defaulted Receivable during the preceding Collection
Period (without duplication of amounts included in clause (i), (ii),
(iii) and (iv) above); provided, however, that in calculating the
Principal Distributable Amount the following will be excluded: all
payments and proceeds of any Purchased Receivables the Purchase
Amount of which has been included in the Principal Distributable
Amount in a prior Collection Period. Further, with respect to the
Distribution Date following the substitution of a Receivable
pursuant to Section 3.02, the principal required to be distributed
to Certificateholders shall include the difference, if any, between
the outstanding Principal Balance of the replaced Receivable and
the outstanding Principal Balance of the substitute Receivable.
"Purchase Agreement" means Purchase Agreement dated as
of September 1, 1996 between the Seller, as purchaser, and Aegis
Finance, as seller of the Receivables.
"Purchase Amount" means the amount, as of the close of
business on the last day of a Collection Period, required to prepay
in full the respective Receivable under the terms thereof, including
the principal amount thereof and interest to the end of the
Collection Period.
"Purchased Receivable" means a Receivable purchased as
of the close of business on the last day of a Collection Period by
the Seller or by Aegis Finance on behalf of the Seller pursuant to
the Purchase Agreement.
"Rated Certificates" means the Certificates if rated by a
Rating Agency at the request of the Seller.
"Rated Entity" shall mean a Person whose long-term
unsecured debt obligations (at the time of the transfer under
Section 7.03) are rated within the investment grade categories of
either ▇▇▇▇▇'▇, S&P, Fitch or DCR.
"Rating Agency" means each statistical credit rating agency,
if any, or its successor, that rates any of the Certificates at the
request of the Seller. If such agency or a successor is no longer
in existence, "Rating Agency" shall be such statistical credit rating
agency, or other comparable Person, designated by the Seller,
notice of which designation shall be given to the Trustee.
"Receivable" means any retail installment sales contract and
security agreement identified on Exhibit C hereto.
"Record Date" means the last day of the Collection Period
preceding a Distribution Date or termination of the Trust.
"Recoveries" means all amounts received (net of out-of-
pocket costs of collection), other than Risk Default Insurance
Proceeds, with respect to Defaulted Receivables and Liquidated
Receivables.
"Required Deposit Rating" means a rating of an institution
which has either short-term deposits of "P-1" by ▇▇▇▇▇'▇, or
short-term deposits of "A-1+" by S&P, and short-term deposits of
"D-1+" by DCR, if rated by DCR; and any requirement that
deposits have the "Required Deposit Rating" shall mean that such
deposits have the foregoing required ratings first, by DCR, or
second, by ▇▇▇▇▇'▇ or S&P.
"Reserve Fund" means the fund established and maintained
pursuant to Section 5.07 hereof outside of the Trust.
"Reserve Fund Draw" has the meaning set forth in Section
5.07(f).
"Reserve Fund Initial Deposit" means $878,068.58, an
amount equal to 5.0% of the Principal Balance of the Receivables
as of the Cutoff Date, which amount shall be deposited in the
Reserve Fund on the date of the initial issuance of the Certificates
pursuant to Section 5.07 hereof.
"Reserve Fund Property" has the meaning specified in
Section 5.07(c).
"Reserve Requirement" means, as of any Distribution Date,
after giving effect to distributions of principal on such date, an
amount equal to the greater of:
(1) Ten percent (10%) of the Pool Balance; or
(2) the lesser of $351,228 and the aggregate Principal
Balance of the Receivables.
"Residual Interest" means the right of the Seller to all
distributions from, and assets of, the Trust, after payment in full
of the fees and expenses of the Backup Servicer, the Servicer, the
Trustee and the Custodian and payment in full of the Certificates
upon termination of this Agreement.
"Retention Amount" means the insured's deductible (initially
equal to 9.5% of the aggregate insured portion of the Amount
Financed of the Receivables) under the terms of the Risk Default
Policy as described therein.
"Risk Default Insurance Policy" or "Risk Default Policy"
means the insurance policy listed on Exhibit H issued by the Risk
Default Insurer to the Trustee for the benefit of the Trust as named
insured thereunder, including all endorsements thereto, the original
of which policy and endorsements shall be delivered to the
Custodian on or prior to the Closing Date.
"Risk Default Insurance Proceeds" means the proceeds
received by the Trustee, the Backup Servicer, the Servicer, the
insured or any other Person under the Risk Default Policy, which
proceeds shall include allocations to principal and interest as
determined by the Servicer.
"Risk Default Insurer" means The Connecticut Indemnity
Company, its successors and assigns.
"Schedule of Receivables" means the list of Receivables
annexed hereto as Exhibit C.
"Scheduled Payment" means the fixed payment required to
be made by the Obligor during the respective Collection Period
sufficient to fully amortize the Principal Balance under the Simple
Interest Method over the term of the Receivable and to provide
interest at the applicable APR, including any delinquent payment;
provided, however, that "Scheduled Payment" does not include
Miscellaneous Servicer Collections.
"Securities Act" shall have the meaning set forth in Section
7.03.
"Seller" means Aegis Auto Funding Corp., a Delaware
corporation, as the seller of the Receivables to the Trust under this
Agreement, and its successors (in the same capacity) pursuant to
Section 8.03.
"Servicer" means Aegis Finance, as servicer of the
Receivables pursuant to the Servicing Agreement or any other
Eligible Servicer acting as servicer pursuant to the Servicing
Agreement in accordance with Section 4.01, as the context may
require.
"Servicer Files" shall have the meaning set forth in Section
3.03(b).
"Servicing Agreement" means the Aegis Finance Servicing
Agreement or another servicing agreement entered into by the
Backup Servicer and the Trustee with an Eligible Servicer which
shall be substantially in the form of the Aegis Finance Servicing
Agreement or such other form as shall be approved by the
Majority Certificateholders.
"Servicing Fee" means the fee payable to the Servicer for
services rendered during the respective Collection Period,
determined pursuant to the Servicing Agreement.
"Servicing Officer" means any officer of the Servicer
involved in, or responsible for, the administration and servicing of
Receivables whose name appears on a list of servicing officers
attached to an Officer's Certificate furnished to the Trustee by the
Servicer, as such list may be amended from time to time.
"Simple Interest Method" means the method of allocating
a fixed level payment to principal and interest, pursuant to which
the portion of such payment that is allocated to interest is equal to
the product of the APR multiplied by the unpaid principal balance
multiplied by a fraction the numerator of which is the number of
days elapsed since the preceding payment was made and the
denominator of which is 365.
"Simple Interest Receivable" means any Receivable under
which the portion of a payment allocable to interest and the portion
allocable to principal is determined in accordance with the Simple
Interest Method.
"S&P" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successors
thereto.
"State" means any state of the United States of America, or
the District of Columbia.
"Substitute Receivable" means any replacement Receivable
substituted for another Receivable in accordance with Section
3.02(b).
"Temporary Agent" means American Lenders Facilities,
Inc., as temporary agent for the Custodian.
"Total Available Distribution Amount" means, for each
Distribution Date, the sum of the Available Interest Distribution
Amount, the Available Principal Distribution Amount and the
Miscellaneous Servicer Collections.
"Transition Costs" means an amount necessary to reimburse
the successor to the Servicer, the Trustee or the Backup Servicer,
as the case may be, for reasonable costs and expenses incurred in
connection with such transition(s).
"Trust" means the Aegis Auto Receivables Trust 1996-A
created by this Agreement, the estate of which shall consist of the
Trust Property.
"Trust Property" shall have the meaning set forth in Section
2.01(c).
"Trustee" means the Person acting as Trustee of the Trust
under this Agreement, its successor in interest and any successor
trustee pursuant to Section 11.10.
"Trustee Officer" means any vice president or assistant vice
president, any assistant secretary, any trust officer or any other
officer of the Corporate Trust Department of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Trustee's Certificate" means a certificate completed and
executed by the Trustee by a Trustee Officer pursuant to Section
11.02, substantially in the form of, in the case of an assignment to
the Seller, Exhibit M.
"UCC" means the Uniform Commercial Code as in effect
from time to time in the relevant jurisdictions.
"Underwriting Guidelines" means the underwriting
guidelines of Aegis Finance with respect to each of its programs,
a copy of which is annexed to the Risk Default Insurance Policy.
"Vendor's Single Interest Physical Damage Insurance
Policy" means the insurance policy listed on Exhibit I issued by
the VSI Insurer, including all endorsements thereto.
"Voting Interests" means the portion of the voting interests
of all the Certificates that is allocated to any Certificate for
purposes of the voting provisions of this Agreement. Voting
Interests shall be allocated among the Certificates in proportion to
their Certificate Balances. Where the Voting Interests are relevant
in determining whether the vote of the requisite percentage of the
Certificateholders necessary to effect any consent, waiver, request
or demand shall have been obtained, the Voting Interests shall be
deemed to be reduced by the amount equal to the Voting Interests
(without giving effect to this provision) represented by the interests
evidenced by any Certificate registered in the name of the
Servicer, Aegis Finance, the Seller or any Person known to a
Trustee Officer to be an Affiliate of any such foregoing entities,
unless such entity owns all affected Certificates.
"VSI Insurance Policy" means Vendor's Single Interest
Physical Damage Insurance Policy.
"VSI Insurer" means Guaranty National Insurance
Company.
Section 1.02. Usage of Terms. With respect to all terms
in this Agreement, the singular includes the plural and the plural
the singular; words importing any gender include the other
genders; references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein
entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their
permitted successors and assigns; and the term "including" means
"including without limitation."
Section 1.03. Record Date. All references to the Record
Date prior to the first Record Date in the life of the Trust shall be
to the Closing Date.
Section 1.04. Section References. Unless otherwise
indicated, all section references shall be to Sections in this
Agreement.
ARTICLE II
CREATION OF TRUST
Upon the execution by the parties hereto, there is hereby
created the Aegis Auto Receivables Trust 1996-A. The situs and
administration of the Trust shall be in Minneapolis, Minnesota or
in such other city in which the Corporate Trust Office is located
from time to time.
Section 2.01. Conveyance and Acceptance by Trustee.
(a) In consideration of the Trustee's delivery of
the Certificates to or upon the order of the Seller in an
aggregate principal amount equal to the aggregate Principal
Balance of the Receivables, the Seller does hereby
irrevocably sell, assign, and otherwise convey to the
Trustee, in trust for the benefit of the Certificateholders,
without recourse (subject to the obligations herein):
(i) all right, title and interest of the Seller in and to the
Receivables identified on Exhibit C, all moneys received thereon
on and after the Cutoff Date allocable to principal, and all moneys
received thereon allocable to interest accrued from and including
the Cutoff Date;
(ii) the interest of the Seller in the
security interests in the Financed Vehicles granted
by the Obligors pursuant to the Receivables;
(iii) the interest of the Seller in any Risk
Default Insurance Proceeds and any proceeds from
claims on any Insurance Policies (including the VSI
Insurance Policy) covering the Receivables, the
Financed Vehicles or the Obligors from the Cutoff
Date;
(iv) the right of the Seller to realize upon
any property (including the right to receive future
Liquidation Proceeds) that shall have secured a
Receivable and have been repossessed by or on
behalf of the Trustee;
(v) the interest of the Seller in any
Dealer Recourse relating to the Receivables;
(vi) all right, title and interest of the
Seller in and to the Purchase Agreement; and
(vii) the proceeds of any and all of the
foregoing.
(b) It is the intention of the Seller and the
Trustee that the transfer and assignment of the Seller's
right, title and interest in and to the assets identified in
clauses (i) through (vii) of Section 2.01(a) (collectively, the
"Trust Property") shall constitute an absolute sale by the
Seller to the Trustee in trust for the benefit of the
Certificateholders. In the event a court of competent
jurisdiction were to recharacterize the transfer of the Trust
Property as a secured borrowing rather than a sale,
contrary to the intent of the Seller and the Trustee, the
Seller does hereby grant, assign and convey to the Trustee
and the Trust, as security for all amounts payable to the
Certificateholders, a security in and lien upon all of its
right, title and interest in and to the Trust Property,
including all amounts deposited to the Lock-Box Account,
the Collection Account and the Certificate Account, said
security interest to be effective from the date of execution
of this Agreement.
(c) The Trustee does hereby accept all
consideration conveyed by the Seller pursuant to Section
2.01(a), and declares that the Trustee shall hold such
consideration upon the trusts herein set forth for the benefit
of all present and future Certificateholders, subject to the
terms and provisions of this Agreement.
The Trustee and the Certificateholders acknowledge
and agree that the Seller is the holder of the Residual
Interest and, subject to the terms and provisions of this
Agreement, shall be entitled to receive all distributions of
Excess Receipts.
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of Seller.
(a) The Seller makes the following
representations and warranties as to the Receivables on
which the Trustee relies in accepting the Receivables in
trust on the Closing Date and executing and authenticating
the Certificates on the Closing Date. Such representations
and warranties speak as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables
to the Trustee.
(i) Characteristics of Receivables. Each
Receivable (A) has been originated in the United
States of America by Aegis Finance or a Dealer for
the retail sale of a Financed Vehicle in the ordinary
course of Aegis Finance's or such Dealer's
business, has been fully and properly executed by
the parties thereto, and, if originated by a Dealer,
has been purchased by Aegis Finance from such
Dealer or has been financed for such Dealer under
an existing agreement with Aegis Finance, (B) has
created a valid, subsisting and enforceable first
priority security interest in favor of Aegis Finance
or the Dealer in the Financed Vehicle, which
security interest, (1) if in favor of the Dealer, has
been assigned by the Dealer to Aegis Finance, (2)
in either case has been duly assigned by Aegis
Finance to the Seller, and (3) has been assigned by
the Seller to the Trustee, (C) is covered by the VSI
Insurance Policy and the Risk Default Insurance
Policy, (D) contains customary and enforceable
provisions such that the rights and remedies of the
holder thereof are adequate for realization against
the collateral of the benefits of the security and (E)
provides for level monthly payments (provided that
the payment in the first or last month in the life of
the Receivable may be different from the level
payment) that fully amortize the Amount Financed
over an original term of no greater than 60 months
and yield interest at the Annual Percentage Rate.
(ii) Schedule of Receivables. The
information set forth in Exhibits C and E hereto is
true, complete and correct in all material respects as
of the opening of business on the Cutoff Date, and
no selection procedures adverse to the
Certificateholders have been utilized in selecting the
Receivables.
(iii) Compliance With Law. Each
Receivable and the sale of each Financed Vehicle
(A) complied at the time it was originated or made
and at the Closing Date complies in all material
respects with all requirements of applicable federal,
State and local laws and regulations thereunder,
including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇
Warranty Act, the Federal Reserve Board's
Regulations B and Z, State adaptations of the
National Consumer Act and of the Uniform
Consumer Credit Code, and other consumer credit
laws and equal credit opportunity and disclosure
laws and (B) does not contravene any applicable
contracts to which Aegis Finance is a party and no
party to such contract is in violation of any
applicable law, rule or regulation which is material
to the Receivable or the sale of the Financed
Vehicle.
(iv) Binding Obligation. Each Receivable
represents the genuine, legal, valid and binding
payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with
its terms.
(v) No Government Obligor. None of
the Receivables is due from the United States of
America or any State or local government or from
any agency, department or instrumentality of the
United States of America or any State or local
government.
(vi) Security Interest in Financed Vehicle.
Immediately prior to the assignment and transfer
thereof, each Receivable is secured by a validly
perfected first priority security interest in the related
Financed Vehicle in favor of the Seller as secured
party or all necessary and appropriate actions have
been commenced that would result in the valid
perfection of a first priority security interest in the
Financed Vehicle in favor of the Seller as the
secured party. The Seller has caused each
certificate of title (or copy of an application for
title), or such other document delivered by the state
title registration agency evidencing the security
interest in each Financed Vehicle, to be delivered to
the Custodian pursuant to Section 3.03 hereof,
together with a power of attorney, duly executed by
Aegis Finance in favor of the Trustee,
which powers of attorney are sufficient to change
the lien holder on the certificate of title with respect
to a Financed Vehicle.
(vii) Receivables in Force. No Receivable
has been satisfied, subordinated or rescinded, nor
has any Financed Vehicle been released from the
lien granted by the related Receivable in whole or
in part.
(viii) No Waiver. No provision of a
Receivable has been waived, impaired, altered or
modified in any respect except in accordance with
the Servicing Agreement, the substance of which is
reflected in the Schedule of Receivables contained
in the Purchase Agreement as it relates to the
information included thereon.
(ix) No Amendments. No Receivable has
been amended such that either the original
Scheduled Payment has been decreased or the
number of originally scheduled due dates has been
increased except as permitted under the terms of the
Risk Default Policy covering such Receivable.
(x) No Defenses. No right of rescission,
setoff, recoupment, counterclaim or defense has
been asserted or threatened with respect to any
Receivable.
(xi) No Liens. No Liens or claims have
been filed for work, labor or materials relating to a
Financed Vehicle that are Liens prior to, or equal
or coordinate with, the security interest in the
Financed Vehicle granted by the Obligor pursuant
to the Receivable.
(xii) No Default. Except for payment
delinquencies continuing for a period of not more
than thirty (30) days as of the Cutoff Date for any
Receivable, no default, breach, violation or event
permitting acceleration under the terms of any
Receivable has occurred; and no continuing
condition that with notice or the lapse of time would
constitute a default, breach, violation or event
permitting acceleration under the terms of any such
Receivable has arisen; and the Seller has not waived
any of the foregoing. As of the Closing Date, the
Seller has no knowledge of any facts regarding any
particular Receivable indicating that such Receivable
would not be paid in full.
(xiii) Insurance. Each Receivable is
covered, as of the Closing Date, and throughout the
shorter of the term of the Trust or the term of the
Receivable, under the VSI Insurance Policy and the
Risk Default Insurance Policy, and each such
insurance policy is valid and remains in full force
and effect. Aegis Finance, in accordance with its
customary procedures, has required that each
Obligor obtain, and has determined that each
Obligor has obtained, physical damage insurance
covering the Financed Vehicle as of the date of
execution of the Receivable insuring repair or
replacement of such Financed Vehicle subject to a
deductibility not in excess of $500.
(xiv) Title. It is the intention of the Seller
that the transfer and assignment of the Receivables
from the Seller to the Trust herein contemplated be
treated as an absolute sale for financial accounting
purposes, and that the beneficial interest in and title
to the Receivables not be part of the property of the
Seller for any purpose under state or federal law.
No Receivable has been sold, transferred, assigned
or pledged by the Seller to any Person other than
the Trustee. Immediately prior to the transfer and
assignment herein contemplated, the Seller had good
and marketable title to each Receivable free and
clear of all Liens and rights of others and,
immediately upon the transfer thereof, the Trustee
for the benefit of the Certificateholders will have
good and marketable title to each Receivable, free
and clear of all Liens and rights of others; and the
transfer has been validly perfected under the UCC.
(xv) Lawful Assignment. No Receivable
has been originated in, or is subject to the laws of,
any jurisdiction under which the pledge, transfer
and assignment of such Receivable under this
Agreement or pursuant to transfers of the
Certificates is or shall be unlawful, void or
voidable.
(xvi) All Filings Made. All filings
(including, without limitation, UCC filings)
necessary in any jurisdiction to give the Trustee a
first perfected ownership interest in the Receivables
have been made.
(xvii) One Original. There is only one
original executed copy of each Receivable.
(xviii) Maturity of Receivables. Each
Receivable had an original term to maturity of not
more than 60 months; the weighted average original
term to maturity of the Receivables was 54.48
months as of the Cutoff Date while the weighted
average remaining term to maturity as of the Cutoff
Date for such Receivables was 54.40 months; the
remaining term to maturity of each Receivable was
60 months or less as of the Cutoff Date.
(xix) Scheduled Payments. Each
Receivable has a next scheduled payment due date
on or prior to November 24, 1996; no Receivables
had a payment that was more than 30 days overdue
as of the Cutoff Date; and each Receivable has a
final scheduled payment due no later than the Final
Scheduled Distribution Date.
(xx) Monthly Payments. Each Receivable
provides for level monthly payments (provided that
the payment in the first or last month in the life of
the Receivable may be minimally different from
such level payment) which fully amortize the
amount financed over the original term; provided,
however, that the Risk Default Policy provides that
loan extensions will be allowed, subject to no more
than one extension during each twelve (12) months
in the Receivable's term.
(xxi) Outstanding Principal Balance;
Annual Percentage Rate. Each Receivable had an
outstanding Principal Balance as of the Cutoff Date
of at least $3,911.50; and no Receivable has an
outstanding Principal Balance in excess of
$36,505.52. As of the Cutoff Date, the weighted
average APR of the Receivable was 20.06% per
annum.
(xxii) Financing. Each Receivable
represents a Simple Interest Receivable.
(xxiii) Bankruptcy Proceeding. No
Receivable as of the Cutoff Date is noted in Aegis
Finance's or the Seller's records as a dischargeable
debt under a bankruptcy proceeding.
(xxiv) Chattel Paper, Valid and Binding.
Each Receivable constitutes "chattel paper" under
the UCC, and is the legal, valid and binding
obligation of the Obligor thereunder in accordance
with the terms thereof.
(xxv) States of Origination. At the time of
origination, each Receivable was originated in one
of the following states, which are the only states in
which the Receivables were originated: Alabama,
Arizona, Colorado, Connecticut, Delaware, Florida,
Georgia, Illinois, Indiana, Kansas, Kentucky,
Louisiana, Maryland, Michigan, Mississippi,
Missouri, Nevada, New Jersey, New Mexico, New
York, North Carolina, Ohio, Pennsylvania, South
Carolina, Tennessee, Texas, Virginia and West
Virginia.
(xxvi) Age of Financed Vehicles.
Approximately 5.57% of the Receivables relate to
new Financed Vehicles and approximately 94.43%
of the Receivables relate to used Financed Vehicles.
(xxvii) No Future Advances. The full
principal amount of each Receivable has been
advanced to each Obligor or advanced in accordance
with the directions of each such Obligor, and there
is no requirement for future advances thereunder.
The Obligor with respect to the Receivable does not
have any options under such Receivable to borrow
from any person additional funds secured by the
Financed Vehicle. Each Receivable as of the
Closing Date is secured by the related Financed
Vehicle.
(xxviii) Underwriting Guidelines. Each
Receivable has been originated in accordance with
the applicable Underwriting Guidelines of Aegis
Finance in effect at the time of origination and in
accordance with underwriting guidelines acceptable
to the Risk Default Insurer. Such guidelines include
but are not limited to the following:
(A) the purchase of the Financed
Vehicle by the Obligor, at the time of
funding of the Receivable, was affordable to
the Obligor based upon Aegis Finance's
existing Underwriting Guidelines with
respect to discretionary income; and
(B) at the time of funding of the
Receivable, the Financed Vehicle was
purchased from, and the Receivable
originated by, a Dealer located in one of the
states specified in paragraph (xxv) above.
(xxix) Financed Vehicle in Good Repair.
To the best of the Seller's knowledge, each
Financed Vehicle is in good repair and working
order.
(xxx) Principal Balance. No Receivable
has a Principal Balance which includes capitalized
interest, physical damage insurance or late charges.
(xxxi) Servicing. At the Cutoff Date, each
Receivable was being serviced by the Servicer.
(xxxii) Eligible Loan. Each Receivable
constitutes an "Instrument" and each Financed
Vehicle constitutes "Eligible Collateral" as defined
in and for purposes of the Risk Default Insurance
Policy. Neither the insured under the Risk Default
Insurance Policy nor any Person acting on behalf of
such insured has concealed or misrepresented any
material facts or circumstances regarding any matter
that would serve as a basis for the Risk Default
Insurer to void the Risk Default Insurance Policy.
(xxxiii) Original Principal Amount. The
original principal amount of each Receivable (A)
originated under the original "Zero Down" and the
"Reduced Income" programs, was not more than (1)
in the case of new Financed Vehicles, the lower of
(x) 105% of the manufacturer's suggested retail
price plus rebatable premiums on cancelable items
and (y) 120% of the manufacturer's suggested retail
price or (2) in the case of used Financed Vehicles,
the lower of (x) 105% of the retail value of the
Financed Vehicle at the time of origination of the
Receivable as set forth in the ▇▇▇▇▇▇ "Blue Book"
for the appropriate region plus rebatable premiums
on cancelable items and (y) 120% of such ▇▇▇▇▇▇
"Blue Book" retail value; (B) originated under the
"First Time Buyer" program, was not more than (1)
in the case of new Financed Vehicles, 95% of the
manufacturer's suggested retail price plus rebatable
premiums on cancelable items of up to 15% of the
manufacturer's suggested retail price or (2) in the
case of used Financed Vehicles, 95% of the retail
value of the Financed Vehicle at the time of
origination of the Receivable as set forth in the
▇▇▇▇▇▇ "Blue Book" for the appropriate region plus
rebatable premiums on cancelable items of up 15%
of the manufacturer's suggested retail price and (C)
originated under the "Military Program" was not
more than 105% of the manufacturer's suggested
retail price or, in the case of used Financed
Vehicles, 105% of the ▇▇▇▇▇▇ "Blue Book" retail
value. Calculations made with respect to the
percentages referenced above are rounded to the
nearest whole percentage point.
(xxxiv) No Proceedings. There are no
proceedings or investigations pending or, to the best
knowledge of the Seller, threatened before any
court, regulatory body, administrative agency or
other governmental instrumentality having
jurisdiction over the Seller or its respective
properties: (A) asserting the invalidity of any of the
Receivables; (B) seeking to prevent the enforcement
of any of the Receivables; or (C) seeking any
determination or ruling that might materially and
adversely affect the payment on or enforceability of
any Receivable.
(xxxv) Licensing. With respect to each
Receivable originated in the State of Pennsylvania,
the Trust, the Seller, Aegis Finance and each prior
holder of any such Receivable were each properly
licensed under applicable Pennsylvania laws and
regulations during the respective times the Trust,
the Seller, Aegis Finance and each prior holder of
any such Receivable held such Receivable, except
where the failure to be so licensed would not have
a material adverse effect on the ability of the Trust
to collect principal or interest payments on such
Receivable or to realize upon the Financed Vehicle
underlying any such Receivable in accordance with
the terms thereof.
(xxxvi) State Concentrations. The forms of
retail installment sales contract used by Aegis
Finance in each of Florida, Georgia, North Carolina
and Texas have not been changed since September
12, 1996. The percentage of the aggregate
Principal Balance of the Receivables originated in
each of the foregoing states is as follows:
Florida 20.14%
Georgia 14.22%
North Carolina 11.86%
Texas 12.98%
As of the Closing Date, no other state represented
more than five percent (5%) of the aggregate
Principal Balance of the Receivables. After giving
effect to the substitution of Substitute Receivables
and the release of all funds from the escrow account
established on the Closing Date pursuant to a
separate agreement, no more than eight percent
(8%) of the original aggregate Principal Balance of
the Receivables will have been originated in any one
state.
(b) The Seller makes the following additional
representations, warranties and covenants on which the
Trustee relies in accepting the Receivables in trust on the
Closing Date and executing and authenticating the
Certificates on the Closing Date, which representations,
warranties and covenants shall survive the Closing Date.
(i) Location of Servicer Files. The Servicer Files are kept at
the location or locations listed in Exhibit D hereto, with the
exception of (A) the original certificates of title or other documents
under applicable state laws evidencing the security interest of
Aegis Finance in the Financed Vehicles, and (B) the original
Receivables, which documents shall be kept at an office of the
Custodian.
(ii) Evidence of Security Interest. On the
Closing Date, the Seller shall deliver or cause to be
delivered to the Custodian or the Temporary Agent
(A) an original certificate of title or (B) if the
applicable state title registration agency does not
deliver certificates of title to lienholders, such other
document under applicable state laws evidencing the
security interest of Aegis Finance in the Financed
Vehicle, or (C) a guarantee of title or a copy of an
application for title if no certificate of title or other
evidence of the security interest in the Financed
Vehicle has yet been issued, for each Financed
Vehicle relating to each Receivable sold,
transferred, assigned and conveyed hereunder;
provided, however, that any original certificate of
title or other document under applicable law
evidencing the security interest of Aegis Finance in
the Financed Vehicle not so delivered on the
Closing Date, due to the fact that such certificate of
title or other document has not yet been issued by
a state title registration agency and delivered to the
Seller as of such date, shall be delivered by the
Seller to the Custodian within one hundred fifty
(150) days after the Closing Date, or such later date
permitted by the Majority Certificateholders (or, if
the Certificates have been rated, by each Rating
Agency) in accordance with Section 3.03(a);
provided, further, that failure to so deliver any
original certificate of title or other document
evidencing the security interest of Aegis Finance in
the Financed Vehicle to the Trustee shall be deemed
to be a breach by the Seller of its representations
and warranties contained in this Section 3.01, and
such occurrence shall constitute a breach pursuant
to Section 3.02.
Section 3.02. Repurchase or Substitution Upon
Breach.
(a) The Seller, the Backup Servicer or the
Trustee, as the case may be, shall inform the other parties
to this Agreement and each Certificateholder promptly, in
writing, upon its discovery of (i) any breach of the Seller's
representations and warranties made pursuant to Section
3.01(a), or of Aegis Finance's representations and
warranties made pursuant to Section 3.01(b) of the
Purchase Agreement, or (ii) the failure of the Seller to
deliver original certificates of title or other documents
evidencing the security interest of Aegis Finance in the
Financed Vehicle pursuant to Section 3.01(b) and 3.03.
Neither the Backup Servicer nor the Trustee has any duty
to investigate or determine the existence of any breach or
non-delivery except as specified herein. Unless (i) the
breach shall have been cured by the thirtieth day following
the discovery thereof by the Trustee or receipt by the
Trustee of notice from the Seller, the Servicer or the
Backup Servicer of such breach, or (ii) the non-delivery
shall have been cured by the seventh Business Day
following receipt by an officer of the Seller of notice from
the Trustee by certified mail, the Seller shall repurchase
each Receivable (x) to which such breach relates by the
fifth Business Day following such 30 day cure period or (y)
relating to the non-delivery by the fifth Business Day
following such seven day cure period. Concurrently
therewith, the Seller shall cause Aegis Finance to
repurchase such Receivable pursuant to the Purchase
Agreement for the Purchase Amount. In consideration of
the purchase of the Receivable, the Seller shall remit or
cause Aegis Finance to remit the Purchase Amount to the
Trustee for application in the manner specified in Section
5.05. For purposes of this Section 3.02, the Purchase
Amount of a Receivable which is not consistent with the
warranty pursuant to Section 3.01(a)(i)(E) shall include
such additional amount as shall be necessary to provide the
full amount of principal and interest as contemplated
therein.
(b) The foregoing notwithstanding, the Seller
shall also have the option of substituting, within the five
Business Day period following the applicable cure period,
one or more replacement Receivables conforming to the
requirements hereof (a "Substitute Receivable") for any
breach or failing Receivable instead of repurchasing such
Receivable, provided any such substitution occurs within
ninety (90) days of the Closing Date. It shall be a
condition of any such substitution that (i) the outstanding
Principal Balance of the Substitute Receivables as of the
date of substitution shall be less than or equal to the
outstanding Principal Balance of the replaced Receivable as
of the date of substitution; provided that an amount equal
to the difference, if any, between the outstanding Principal
Balance of the replaced Receivable and the outstanding
Principal Balance of the Substitute Receivable shall be
deposited into the Collection Account and shall be applied
to repay the outstanding Principal Balance of the
Certificates on the next Distribution Date; (ii) the
remaining term to maturity of the Substitute Receivable
shall not be greater than that of the replaced Receivable;
(iii) the Cutoff Date with respect to the Substitute
Receivable shall be deemed to be the first day of the month
in which the substitution occurs; (iv) the Substitute
Receivable otherwise shall satisfy the conditions of Section
3.01(a) and (b) hereof (and the Seller shall be deemed to
make all representations and warranties contained in
Sections 3.01(a) and (b) hereof with respect to the
Substitute Receivable as of the date of substitution); (v) the
Seller shall have delivered to the Purchaser and the Trustee
all of the documents specified in Section 3.03(a) hereof
with respect to the Substitute Receivable on or before the
date of substitution.
(c) The Seller agrees to repurchase at the
Purchase Amount on each Distribution Date, commencing
with the Distribution Date occurring in December 1996,
any Receivable for which, through the end of the related
Collection Period, either of the first two Scheduled
Payments was not paid within forty-five (45) days of the
due date for such Scheduled Payment.
(d) The sole remedy of the Trustee, the Trust or
the Certificateholders with respect to a breach of
representations and warranties of the Seller pursuant to
Section 3.01(a), or a breach of representations and
warranties of Aegis Finance pursuant to Section 3.01(b) of
the Purchase Agreement, or non-delivery of certificates of
title pursuant to Section 3.01(b) and 3.03, or failure by an
Obligor to make the first or second Scheduled Payments as
set forth above, shall be to require the Seller to repurchase
or substitute for the Receivables pursuant to this Section
3.02 and to enforce Aegis Finance's obligation to
repurchase such Receivables pursuant to the Purchase
Agreement.
Section 3.03. Custody of Documents.
(a) To assure uniform quality in servicing the
Receivables, to reduce administrative costs and to perfect
the security interest conveyed by the Seller to the Trustee
and the Trust pursuant to this Agreement in the Trust
Property, the Trustee, upon the execution and delivery of
this Agreement, is hereby irrevocably appointed as
Custodian of the following documents or instruments,
which are hereby delivered to the Custodian or the
Temporary Agent with respect to each Receivable:
(i) The original of the Receivable and
any amendments thereto;
(ii) The original certificate of title or, if
the applicable state title registration agency does not
issue certificates of title to lienholders, such other
document under applicable state laws evidencing the
security interest of Aegis Finance in the Financed
Vehicle, or a guarantee of title or a copy of an
application for title if a certificate of title or other
document evidencing the security interest in the
Financed Vehicle has not yet been issued;
(iii) The original Risk Default Insurance
Policy and a copy of the VSI Insurance Policy
(including all endorsements thereto), including
endorsements confirming insurance thereunder (as
reflected on master lists of insured Receivables
annexed to such endorsements) regarding each
Receivable covered thereby and, with respect to the
VSI Insurance Policy, an endorsement naming the
Trustee as an additional insured thereunder;
(iv) Such other documents as may be in
existence evidencing the security interest of Aegis
Finance in the Financed Vehicle; provided,
however, that the Trustee has no obligation to
determine the existence or necessity for such other
documents.
Each document identified in paragraphs (i) through
(iv) above and delivered to the
Temporary Agent shall be delivered to the Custodian no
later than October 15, 1996.
The following documents shall be delivered to the
Custodian within 30 days of the Closing Date:
(v) File-stamped copies of the UCC-1
financing statements filed pursuant to this
Agreement.
Items (a)(i), (ii), (iii) and (iv) shall be referred to
collectively as the "Custodian Files."
The Custodian shall review the Custodian Files (A)
within 30 days after the Closing Date to verify that all
guarantees of title and all applications for title have been
replaced by either an original certificate of title or other
documents delivered by a state title registration agency
evidencing the security interest of Aegis Finance in the
Financed Vehicle, and (B) within 30 days after the Closing
Date to verify that an original installment sale contract is
present for each Receivable and that each Receivable is
covered by an endorsement to the Risk Default Policy
confirming insurance thereunder. The Custodian shall
immediately deliver written notice by certified mail to the
Seller and Aegis Finance if any such document is missing
or has not been delivered to the Custodian. With respect
to Receivables for which the original certificates of title or
other documents evidencing the security interest of Aegis
Finance in the Financed Vehicle have not been delivered
within 30 days after the Closing Date, the Custodian shall
review the related Custodian Files every thirty days
thereafter to determine whether or not such documents have
been delivered, and shall promptly notify the Seller, on a
monthly basis, if any such documents have not been
delivered as of the date of such notice. The Custodian
shall deliver written notice to each Rating Agency and the
Certificateholders if any original certificate of title or other
document evidencing the security interest of Aegis Finance
in the Finance Vehicle has not been delivered to the
Custodian within 150 days after the Closing Date. Such
notice shall confirm whether or not a guaranty of title or an
application for title has been delivered to the Custodian
with respect to the related Receivable.
With respect to Receivables for which the original
retail installment sale contract has not been delivered to the
Custodian in accordance with this Section 3.03(a), the
Seller shall cause Aegis Finance to deliver the missing
documents within seven (7) Business Days of receipt of
such notice or repurchase such Receivables pursuant to
Section 3.02 hereof. With respect to Receivables for which
original certificates of title or other documents evidencing
the security interest of Aegis Finance in the Financed
Vehicle have not been delivered to the Custodian within
150 days of the Closing Date, the Seller shall cause Aegis
Finance to deliver such within such period of time as
determined by the Majority Certificateholders (or, if the
Certificates have been rated, by each Rating Agency) (after
receipt of notice as described in the preceding paragraph)
or repurchase the Receivables pursuant to Section 3.02
hereof. Other than the reviews set forth in this paragraph,
the Custodian shall have no duty or obligation to review
any of the Custodian Files.
(b) The Seller shall deliver to the Servicer for
custody pursuant to the Servicing Agreement the documents
and instruments described in Paragraph III.B.3. of the
Servicing Agreement (collectively, the "Servicer Files").
(c) The Custodian agrees to maintain the
Custodian Files at the offices of the Custodian as shall
from time to time be identified to the Trustee by written
notice. Subject to the foregoing, the Trustee may
temporarily move individual Custodian Files or any portion
thereof without notice as necessary to conduct collection
and other servicing activities in accordance with its
customary practices and procedures.
The Custodian shall have and perform the following
powers and duties:
(i) hold the Custodian Files for the
benefit of all present and future Certificateholders,
maintain accurate records pertaining to each
Receivable to enable it to comply with the terms
and conditions of this Agreement and maintain a
current inventory thereof;
(ii) carry out such policies and
procedures in accordance with its customary actions
with respect to the handling and custody of the
Custodian Files so that the integrity and physical
possession of the Custodian Files will be
maintained; and
(iii) promptly release the original
certificate of title to the Servicer upon receipt of a
written request for release of documents certified by
an officer of the Servicer, substantially in the form
of Schedule C to the Servicing Agreement, with
respect to the matters therein.
(d) Notwithstanding anything to the contrary
herein, the Custodian is authorized and directed to appoint
American Lenders Facilities Inc. ("ALFI") as its agent (the
"Temporary Agent") to accept delivery of and temporarily
maintain custody of the Custodian Files and to perform
such other duties of the Custodian hereunder as are
specified in the instrument or agreement appointing such
agent, a copy of which shall be annexed hereto as
Exhibit N. Delivery of documents to the Temporary Agent
at the address designated by the Temporary Agent in
writing shall be deemed to be delivery to the Custodian at
the Corporate Trust Office for all purposes of this
Agreement.
Section 3.04. Duties of Custodian.
(a) Safekeeping. The Trustee, as Custodian,
shall hold the original Receivables and original certificates
of title at the Corporate Trust Office, for the use and
benefit of all present and future Certificateholders. In
performing its duties the Custodian will comply with all
applicable state and federal laws and will exercise that
degree of skill and care consistent with the same degree of
skill and care that the Custodian exercises with respect to
similar motor vehicle loans held by the Custodian and that
is consistent with prudent industry standards, and will
apply in performing such duties and obligations, those
standards, policies and procedures consistent with the same
standards, policies and procedures the Custodian applies
with respect to similar motor vehicle loans or motor vehicle
retail installment sale contracts which the Custodian serves
as custodian or in a similar capacity.
(b) Maintenance of and Access to Records.
Subject to Section 3.03(c), the Custodian shall maintain the
Custodian Files at the Corporate Trust Office or at such
other office as shall be specified to the Trustee by written
notice not later than 90 days after any change in location.
The Custodian shall make available to the Servicer and the
Certificateholders or their duly authorized representatives,
attorneys or auditors a list of locations of the Custodian
Files, and the related accounts, records and computer
systems maintained by Custodian at such times as the
Servicer or the Majority Certificateholders shall instruct.
(c) Release of Documents. In addition to
releasing certificates of title pursuant to Section 3.03(c)(iii)
upon receipt of written instructions from the Servicer in the
form of Schedule C to the Servicing Agreement, the
Custodian shall release any Custodian File to the Servicer,
the Servicer's agent or the Servicer's designee, as the case
may be, at such place or places as the Servicer may
designate, as soon as practicable.
Section 3.05. Instructions; Authority to Act. The
Custodian shall be deemed to have received proper instructions
with respect to the Custodian Files upon its receipt of written
instructions from the Servicer in the form of Schedule C to the
Servicing Agreement.
Section 3.06. Custodian Fees; Indemnification.
(a) In consideration for services rendered as
Custodian, the Custodian shall be paid the Custodian fees
specified in Exhibit G.
(b) The Seller shall indemnify the Custodian for
any and all liabilities, obligations, losses, compensatory
damages, payments, costs or expenses of any kind
whatsoever, including reasonable fees and expenses of
counsel, that may be imposed on, incurred or asserted
against the Custodian as the result of any improper act or
omission by the Seller or the Temporary Agent or alleged
improper act or omission by the Seller or the Temporary
Agent in any way relating to the maintenance and custody
by the Custodian or the Temporary Agent of the Custodian
Files; provided, however, that the Seller shall not be liable
for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the
Custodian.
Section 3.07. Effective Period and Termination. The
Trustee's appointment as Custodian shall become effective as of
the Closing Date and shall continue in full force and effect until
the Trustee resigns or is removed pursuant to Section 11.09. As
soon as practicable after any termination of such appointment, the
Custodian shall deliver the original documents identified in Section
3.03 to the successor Custodian at such place or places as the
successor Custodian may reasonably designate.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Servicing Duties.
(a) On or before the Closing Date, the Backup
Servicer and the Trustee will enter into the Aegis Finance
Servicing Agreement with Aegis Finance pursuant to which
Aegis Finance shall act as Servicer with respect to the
Receivables. Any Servicer shall be, and shall remain, for
so long as it is acting as Servicer, an Eligible Servicer.
The Backup Servicer shall review each Monthly Servicing
Certificate required to be provided by the Servicer pursuant
to paragraph III.B.6 of the Servicing Agreement and shall
notify the Trustee, each Rating Agency and each
Certificateholder of any discrepancy in such Monthly
Servicing Certificate which cannot be corrected in
accordance with paragraph III.B.6 of the Servicing
Agreement.
(b) In the event of termination of the rights and
obligations of the Servicer under the Servicing Agreement,
the Backup Servicer shall, in accordance with paragraph VI
of the Servicing Agreement, act as Servicer of the
Receivables by assuming such rights and obligations under
the Servicing Agreement unless a successor Servicer, other
than the Backup Servicer, is appointed by the Trustee under
the Servicing Agreement; provided, however, that the
Backup Servicer shall not be liable for any acts, omissions
or obligations of the Servicer prior to such succession or
for any breach by the Servicer of any of its representations
and warranties contained in the Servicing Agreement or in
any related document or agreement.
(c) Any Servicing Agreement that may be
entered into and any other transactions or servicing
arrangements relating to the Receivables and the other
Trust Property involving a Servicer in its capacity as such
shall be deemed to be for the benefit of the Trust, the
Trustee and the Certificateholders.
(d) Other than the duties specifically set forth in
this Agreement and the Servicing Agreement, the Backup
Servicer shall have no obligation hereunder, including,
without limitation, to supervise, verify, monitor or
administer the performance of the Servicer. The Backup
Servicer shall have no liability for any actions taken or
omitted by the Servicer. The duties and obligations of the
Backup Servicer shall be determined solely by the express
provisions of this Agreement and the Servicing Agreement
and no implied covenants or obligations shall be read into
this Agreement against the Backup Servicer.
Section 4.02. Resignation of Backup Servicer. The
Backup Servicer may resign from the obligations and duties
imposed on it under this Agreement and the Servicing Agreement
as Backup Servicer, and shall resign at any time when it ceases to
be an Eligible Servicer, by giving written notice of such
resignation to the Trustee and the Certificateholders; provided,
however, that (a) at least 45 days prior to such resignation the
Backup Servicer shall have notified the Rating Agency, in writing,
of (i) its intention to resign and (ii) the identity of the proposed
successor Backup Servicer, and (b) each Rating Agency shall have,
within a reasonable time thereafter, notified the Backup Servicer
of its approval of such proposed successor Backup Servicer, which
approval shall not be unreasonably withheld by each Rating
Agency. No such resignation shall become effective until a
successor Backup Servicer that is an Eligible Servicer acceptable
to the Majority Certificateholders shall have assumed the
responsibilities and obligations of the Backup Servicer in
accordance with Section 10.02; provided however, if a successor
Backup Servicer has not assumed the responsibilities and
obligations of the Backup Servicer within 30 days after such
resignation, the Backup Servicer may petition a court of competent
jurisdiction for its removal.
In the event the Backup Servicer shall for any reason no
longer be acting as such (including by reason of resignation as set
forth in this Section 4.02 or an Event of Backup Servicing Default
as specified in Section 10.01), the successor Backup Servicer shall
thereupon assume all of the rights and obligations of the outgoing
Backup Servicer under the Servicing Agreement. In such event,
the successor Backup Servicer shall be deemed to have assumed all
of the Backup Servicer's interest therein and to have replaced the
outgoing Backup Servicer as a party to the Servicing Agreement
to the same extent as if the Servicing Agreement had been assigned
to the successor Backup Servicer, except that the outgoing Backup
Servicer shall not thereby be relieved of any liability or obligations
on the part of the outgoing Backup Servicer to the Servicer under
such Servicing Agreement to the extent such obligations or
liabilities arose prior to the assumption by the successor Backup
Servicer of the obligations of the Backup Servicer thereunder. The
outgoing Backup Servicer shall, upon request of the Trustee,
deliver to the successor Backup Servicer all documents and records
relating to the Servicing Agreement and the Receivables and
otherwise use its reasonable efforts to effect the orderly and
efficient transfer of the Servicing Agreement to the successor
Backup Servicer.
Section 4.03. Covenant of Backup Servicer. The Backup
Servicer shall promptly notify the Trustee of the occurrence of any
Event of Backup Servicing Default or Event of Servicing Default
of which it has obtained actual knowledge and any breach by the
Backup Servicer or the Seller of any of its respective covenants or
representations and warranties contained in this Agreement.
Section 4.04. Servicing Fees. The total servicing fees
payable on each Distribution Date to the Backup Servicer and the
Servicer shall equal the Backup Servicer Fee and the Servicing
Fee, respectively. Any proposed increase in the Backup Servicer
Fee or the Servicing Fee due to the assumption of duties hereunder
or under the Servicing Agreement by a successor Backup Servicer
or successor Servicer shall be approved by the Seller, each Rating
Agency and the Majority Certificateholders. The Backup Servicer
shall also be entitled to any reimbursement pursuant to Section
9.03. Any Servicing Fee payable to the Servicer hereunder or
pursuant to the Servicing Agreement shall be paid to the Servicer
and/or to one or more subservicers as the servicer may from time
to time direct in writing to the Trustee.
Section 4.05. Costs and Expenses. All reasonable out-of-
pocket costs and expenses incurred by the Backup Servicer in
carrying out its duties as Backup Servicer hereunder, including all
out-of-pocket fees and expenses not expressly stated hereunder to
be for the account of the Trust or the Seller, shall be paid or
caused to be paid by the Backup Servicer, and the Backup Servicer
shall be entitled to reimbursement therefor hereunder. Nothing in
this Section 4.05 shall be construed to limit the compensation to be
paid to or retained by the Backup Servicer pursuant to Section
4.04.
Section 4.06. Standard of Care. In managing,
administering, servicing and making collections on the
Receivables, and in performing its obligations under the Servicing
Agreement after succeeding as Servicer thereunder, the Backup
Servicer will exercise that degree of skill and care consistent with
the same degree of skill and care that the Backup Servicer
exercises with respect to similar motor vehicle loans owned and/or
serviced by the Backup Servicer and that is consistent with prudent
industry standards, and will apply in the management,
administration, servicing and collection of the Receivables and in
the administration and enforcement of the Insurance Policies
relating to the Receivables, those standards, policies and
procedures consistent with the best standards, policies and
procedures the Backup Servicer applies with respect to similar
motor vehicle loans owned or serviced by it, and, to the extent not
inconsistent with the foregoing, to exercise that degree of skill and
care it uses in servicing assets held for its own account; provided,
however, that notwithstanding the foregoing, the Backup Servicer
shall not, except pursuant to a judicial order from a court of
competent jurisdiction, or as otherwise required by applicable law
or regulation, release or waive the right to collect the unpaid
balance on any Receivable and provided, further, that the Backup
Servicer shall not amend or modify any Receivable, unless a
default with respect to such Receivable has occurred or is, in the
judgment of the Backup Servicer, imminent. In performing its
duties and obligations hereunder or under the Servicing
Agreement, in the event there is no Servicer managing,
administering, servicing or making collections on the Receivables
and administering and enforcing the Insurance Policies relating to
the Receivables, the Backup Servicer shall comply with all
applicable federal and state laws and regulations, shall maintain all
state and federal licenses and franchises necessary for it to perform
its servicing responsibilities hereunder and thereunder, and in such
event it shall exercise the same degree of skill and care it uses in
managing, administering, servicing and making collection on the
Receivables and administering and enforcing the Insurance Policies
in its capacity as Backup Servicer hereunder, and shall not impair
the rights of the Trust or the Certificateholders in the Trust
Property.
ARTICLE V
DISTRIBUTIONS; ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Accounts.
(a) The Trustee shall establish the Collection
Account and the Certificate Account in the name of the
Trustee for the benefit of the Certificateholders. The
Collection Account and the Certificate Account shall be
segregated trust accounts established with the trust
department of the Trustee. The Servicer shall establish the
Lock-Box Account pursuant to the Servicing Agreement.
The Lock-Box Account shall be a non-interest bearing
account established with a Lock-Box Account Depository,
which shall at all times be an Eligible Institution, by the
Servicer for the sole benefit of the Trust and other holders
of retail installment sales contracts originated by Aegis
Finance or its Affiliates. All of the foregoing Accounts
shall be Eligible Accounts.
(b) Amounts held in the Collection Account and
the Certificate Account shall be invested by the Trustee,
upon the written direction of the Seller, in Eligible
Investments. Any such investment in the Certificate
Account shall mature no later than (i) one Business Day
before the Distribution Date next succeeding the date of
investment or, (ii) in the case of money market fund
investments, on such Distribution Date. Any such
investment in the Collection Account shall mature not later
than two Business Days before such Distribution Date.
Any written investment direction by the Seller shall certify
that any such investment is authorized by this Section 5.01.
The Trustee shall have no authority to sell or otherwise
dispose of Eligible Investments attributable to funds held in
the Certificate Account or the Collection Account prior to
their respective maturity dates. Interest and earnings on
investments of funds in any Account shall be credited to
and all losses borne by the Account with respect to which
they were derived. All accounts with the Trustee must be
trust accounts subject to regulations substantially similar to
12 C.F.R. SECS 9.10(b). The Trustee shall not have any
responsibility or liability for any investment of moneys at
the direction of the Seller or any loss resulting therefrom.
(c) The Servicer has appointed ▇▇▇▇▇ Fargo
Bank, N.A., as the initial Lock-Box Account Depository
under the Servicing Agreement. All funds of the Trust
held by a Lock-Box Account Depository are and shall
remain the property of the Trust.
Section 5.02. Collections. Pursuant to the Servicing
Agreement, the Servicer shall remit to the Lock-Box Account as
soon as practicable, but in no event later than its close of business
on the Business Day after receipt thereof by the Servicer, all
payments by or on behalf of the Obligors with respect to each
Receivable (other than Purchased Receivables), all Recoveries and
all Risk Default Insurance Proceeds, all as collected during the
Collection Period. As provided in the Servicing Agreement, the
Servicer shall cause the Lock-Box Account Depository to transfer
all available funds applied to the Receivables in excess of $2,000
from the Lock-Box Account to the Collection Account on each
Business Day. In the event an Obligor remits funds to the Trustee
rather than remitting such funds directly to the Servicer, the
Trustee shall notify the Servicer and shall deposit such amounts
into the Collection Account within one (1) Business Day after
receipt.
Section 5.03. Application of Collections. All collections
for the Collection Period shall be applied by the Trustee in
accordance with reports provided to the Trustee by the Servicer
pursuant to the Servicing Agreement, as follows:
With respect to each Receivable (other than a Purchased
Receivable), payments by or on behalf of the Obligor shall be
applied to the Scheduled Payment. Any excess payments received
constituting Scheduled Payments for subsequent Collection Periods
shall be applied to the Principal Balance of the Receivables on the
Distribution Date relating to such subsequent Collection Period.
Section 5.04. Miscellaneous Servicer Collections. All
Miscellaneous Servicer Collections shall be deposited by the
Servicer to the Lock-Box Account within one Business Day of
receipt thereof.
Section 5.05. Additional Deposits. The Trustee shall
deposit or cause to be deposited in the Collection Account the
aggregate Purchase Amount received with respect to Purchased
Receivables and shall, upon receipt, deposit such other amounts to
such accounts as may be specified herein. All such deposits shall
be made in Automated Clearinghouse Corporation next-day funds
or immediately available funds, on or before the Business Day
preceding the Distribution Date.
Section 5.06. Distributions.
(a) On each Distribution Date, the Trustee shall
cause to be made the transfers and distributions set forth in
this Section 5.06 in the amounts set forth in the Monthly
Servicing Certificate for such Distribution Date.
(b) The Trustee shall, on each Determination
Date, based upon a certificate delivered to the Trustee from
the Backup Servicer, calculate the Total Available
Distribution Amount, the Distributable Amount, the
Reserve Fund balance and, based on the Total Available
Distribution Amount, determine the amount distributable to
the Certificateholders and the other distributions to be made
on such Distribution Date.
(c) Two (2) Business Days prior to each
Distribution Date, the Trustee shall transfer from the
Collection Account to the Certificate Account an amount
equal to the Total Available Distribution Amount and all
investment earnings and interest on the funds in the
Collection Account.
(d) Except as otherwise provided below, on each
Distribution Date, the Trustee (based on the information
contained in the Monthly Servicing Certificate delivered on
the related Determination Date pursuant to the Servicing
Agreement) shall make the following distributions from the
funds then on deposit in the Certificate Account (including
funds transferred from the Reserve Fund when necessary
as set forth below and pursuant to Section 5.07) in the
following order of priority:
(i) to the Backup Servicer, the Backup Servicer Fee and
expenses and all unpaid Backup Servicer Fees and unreimbursed
expenses from prior Collection Periods; to the Servicer, the
Servicing Fees and expenses, and all unpaid Servicing Fees and
unreimbursed expenses from prior Collection Periods; to the
Trustee and Custodian, the Trustee and Custodian fees and
expenses and all unpaid Trustee and Custodian fees and
unreimbursed expenses from prior Collection Periods; and to the
successor to the Servicer, the Trustee or the Backup Servicer,
Transition Costs, if any;
(ii)
to the Certificateholders of record, an amount equal to the
sum of the Interest Distributable Amount and any Interest
Carryover Shortfall from the prior Distribution Date; and
(iii) to the Certificateholders of record, an
amount equal to the sum of the Principal
Distributable Amount and any Principal Carryover
Shortfall from the prior Distribution Date.
(e) On each Distribution Date, the Trustee shall
distribute any Excess Receipts in the following amounts
and in the following order of priority: (i) into the Reserve
Fund until the amount on deposit therein equals the Reserve
Fund Requirement for such date and (ii) any remaining
Excess Receipts will be distributed to the Seller.
(f) All distributions with respect to the
Certificates on each Distribution Date shall be made pro
rata among the outstanding Certificates in proportion to the
Percentage Interests evidenced thereby. All payments to
Certificateholders shall be made on each Distribution Date
to each Certificateholder of record on the related Record
Date by check, or, if requested by a Certificateholder
holding Certificates with Original Certificate Balances in
the aggregate in excess of $1,000,000, by wire transfer to
the account designated in writing by such Holder in the
form of Exhibit F hereto (or such other account as such
Certificateholder may designate in writing) delivered to the
Trustee prior to the Determination Date, in immediately
available funds.
Section 5.07. Reserve Fund; Priority of Distributions.
(a) In order to assure that sufficient amounts to
make required payments to the Certificateholders specified
therein will be available, there shall be established and
maintained with the Trustee the following Eligible Account:
the "Reserve Fund--Aegis Auto Receivables Trust 1996-A"
(the "Reserve Fund"), which will include the money and
other property deposited and held therein pursuant to
Section 5.06(e) and this Section. The Reserve Fund shall
not be part of Trust, but instead will be held for the benefit
of the Certificateholders. The Seller and the Trustee
acknowledge that any amounts on deposit in the Reserve
Fund (and any investment earnings thereon) will be owned
directly by the Seller, and such parties hereby agree to treat
the same as assets (and investment earnings) of the Seller
for federal income tax purposes.
(b) The Reserve Fund shall be initially funded on
the Closing Date in the amount of the Reserve Fund Initial
Deposit.
(c) Amounts held in the Reserve Fund shall be
invested in Eligible Investments, in accordance with written
instructions from the Seller or its designee, and such
investments shall not be sold or disposed of prior to their
maturity but shall mature no later than two Business Days
before the Distribution Date next succeeding the date of
investment. All such investments shall be made in the
name of the Trustee or its nominee. Any loss on
investment of amounts held in the Reserve Fund and all
income and gain realized on the Reserve Fund shall be
credited to such fund. As provided in Section 11.05, the
Trustee shall not have any responsibility for moneys
invested by the Trustee hereunder or any losses resulting
therefrom.
(d) In order to provide for the prompt payment
to the Certificateholders, the Trustee, the Custodian, the
Servicer and the Backup Servicer in accordance with
Section 5.06(d), and to assure availability of the amounts
maintained in the Reserve Fund, the Seller, subject to the
terms and conditions hereof and solely for the purpose of
providing for payment of the fees and expenses of the
Backup Servicer, the Trustee and the Custodian and making
the distributions to the Certificateholders provided for in
Section 5.06 and this Section 5.07, hereby grants in favor
of the Trustee, as collateral agent, and its successor and
assigns, a security interest in and lien upon all its right,
title and interest in and to the Reserve Fund, including the
Reserve Fund Initial Deposit and all proceeds of the
foregoing, and hereby pledges to the Trustee, as collateral
agent, and its successors and assigns, all other amounts and
investments held from time to time in the Reserve Fund
(whether in the form of deposit accounts, instruments,
book-entry securities, uncertificated securities or otherwise)
(all of the foregoing, subject to the limitations set forth
below, the "Reserve Fund Property"); to have and to hold
all the aforesaid property, rights and privileges unto the
Trustee, its successors and assigns, in trust for the uses and
purposes, and subject to the terms and provisions, set forth
in this Section 5.07. The Trustee hereby acknowledges
such transfer and accepts the trust hereunder and shall hold
and distribute the Reserve Fund Property in accordance
with the terms and provisions of this Section 5.07.
(e) The Seller agrees to take or cause to be
taken such further actions, to execute, deliver and file or
cause to be executed, delivered and filed such further
documents and instruments (including, without limitation,
any UCC financing statements or this Agreement) as may
be determined to be necessary to perfect the interests
created by this Section in favor of the Trustee and
otherwise fully to effectuate the purposes, terms and
conditions of this Section. The Seller (with respect to
Reserve Fund Property) shall:
(i) promptly execute, deliver and file
any financing statements, amendments, continuation
statements, assignments, certificates and other
documents with respect to such interests and
perform all such other acts as may be necessary in
order to perfect or to maintain the perfection of the
Trustee's security interest in the Reserve Fund
Property; and
(ii) make the necessary filings of
financing statements or amendments thereto within
ten business days after the occurrence of any of the
following: (1) any change in its corporate name or
any trade name; (2) any change in the location of
its chief executive office or principal place of
business; and (3) any merger or consolidation or
other change in its identity or corporate structure
and promptly notify the Trustee of any such filings.
(f) If on any Distribution Date the Total
Available Distribution Amount is insufficient to distribute
the full amount described in clauses (i) through (iii) of
Section 5.06(d), the Trustee shall withdraw an amount
equal to such insufficiency from the Reserve Fund (any
such amount, the "Reserve Fund Draw") and apply such
amount (in the order of priority provided by Section
5.06(d)) in respect of such insufficiencies. If on any
Distribution Date amounts on deposit in the Reserve Fund
are in excess of the Reserve Fund Requirement for such
date (after giving effect to Reserve Fund Draws on such
date, if applicable), the Trustee shall release such excess to
the Seller. Any amounts released from the Reserve Fund
on any Distribution Date shall not be available for Reserve
Fund Draws on following Distribution Dates. Upon
termination of this Agreement, any amounts on deposit in
the Reserve Fund, after payment of all amounts due the
Backup Servicer, the Trustee, the Custodian, the Servicer
and the Certificateholders, shall be paid to the Seller.
(g) Amounts properly received by the Seller
pursuant to this Agreement shall not be available to the
Trustee or the Trust for the purpose of making deposits to
the Reserve Fund or making payments to the
Certificateholders, nor shall the Seller be required to refund
any amount properly received by them.
Section 5.08. Statements to Certificateholders; Tax
Returns. With each distribution from the Certificate Account to
the Certificateholders made on a Distribution Date, the Trustee
shall provide to the Rating Agency, the Backup Servicer, the Seller
and each Certificateholder of record, based on the Monthly
Servicing Certificate provided to the Backup Servicer and the
Trustee by the Servicer in the form of Schedule B to the Servicing
Agreement, a statement substantially in the form of Exhibit B to
this Agreement setting forth at least the following information with
respect to such Distribution Date and the related Collection Period,
to the extent applicable:
(a) Servicer Collections:
(i) The Available Interest Distribution Amount;
(ii) The Available Principal Distribution
Amount;
(iii) The Miscellaneous Servicer
Collections; and
(iv) The Total Available Distribution
Amount.
(b) Distributions:
(i) the amount of such distribution allocable to principal in
respect of the Certificates;
(ii) the amount of such distribution
allocable to interest in respect of the Certificates;
(iii) the amount of the Backup Servicing
Fee, Servicing Fee, Trustee and Custodian Fees and
expenses for the related Collection Period;
(iv) the amount of Interest Carryover
Shortfall, if any, on such Distribution Date and the
amount of the Principal Carryover Shortfall, if any,
on such Distribution Date;
(v) the Pool Factor and the Certificate
Factor as of such Distribution Date, after giving
effect to payments allocated to principal reported
under clause (i) above;
(vi) the amount on deposit in the Reserve
Fund on such Distribution Date, after giving effect
to amounts deposited in the Reserve Fund and
Reserve Fund Draws on such date;
(vii) the aggregate amount of Reserve
Fund Draws, and the breakdown of the application
of such draws to cover payment shortfalls to
Certificateholders, made on such Distribution Date;
(viii) the amount of net investment earnings
with respect to the Reserve Fund earned during the
related Collection Period;
(ix) the amounts, if any, released from
the Reserve Fund to the Seller;
(c) Pool Information:
The Original Pool Balance, the Pool
Balance, the weighted average coupon, the weighted
average maturity (in months) and the remaining
number of Receivables for both the first and the last
day of the preceding Collection Period, after giving
effect to payments allocated to principal reported in
(b)(ii) above.
(d) Receivables Repurchased or Substituted by
Seller:
The number and aggregate Purchase
Amount of Receivables repurchased by Seller and
for any substitution of Receivables, the number and
principal balance of both the Receivables being
replaced and the Receivables substituted.
(e) Delinquency Information:
The amount of Receivables (other
than Defaulted Receivables and Liquidated
Receivables) as to which Obligors are (i) 30 days to
59 days past due (ii) 60 days to 89 days past due,
and (iii) 90 days past due in making Scheduled
Payments.
(f) Repossession Information:
The number and principal balance of
Receivables as to which the Servicer has
repossessed the Financed Vehicle during the current
period and on a cumulative basis.
(g) Liquidated and Defaulted Receivables
Information:
The number and principal balance of
Receivables which became Liquidated Receivables
(other than Receivables previously characterized as
Defaulted Receivables) and the number and
principal balance of Receivables which became
Defaulted Receivables during the Collection Period
and on a cumulative basis.
(h) Recoveries:
The amount of Liquidation Proceeds, the
amount of insurance claims paid under the VSI
Insurance Policy, the amount of rebates received
from the Servicer as a result of cancelled warranty
or extended service contracts and the amount of
claims paid under consumer insurance during the
related Collection Period and on a cumulative basis.
(i) Retention Amount:
The beginning balance, the amount added
with respect to quarterly reserve loss deficiency, the
amount subtracted with respect to approved claims
and quarterly reserve loss surplus, and the ending
balance.
(j) Risk Default Insurance Proceeds:
The amount of insurance proceeds paid
under the Risk Default Insurance Policy.
(k) Net Losses:
The amount of Net Losses, if any, on
such Distribution Date and the cumulative amount
of all Net Losses realized on the Receivables since
the Closing Date.
(l) Insurance Claims:
The number of Receivables as to
which a claim was filed under the Risk Default
Policy or the VSI Insurance Policy, the amount of
such claims, the number of claims rejected and the
principal balance of related Receivables rejected
under the Risk Default Policy for the related
Collection Period and on a cumulative basis.
(m) Collection Account:
The amount of reinvestment income
on funds held in the Collection Account.
(n) Other Information:
Any other information regarding each
distribution which any Certificateholder reasonably
requests in writing 30 days prior to such distribution
and which the Trustee can provide without undue
expense or effort.
Within thirty (30) days after the end of each calendar year,
the Trustee shall furnish to each Person who at any time during
such calendar year was a Certificateholder of record and received
any payment thereon (a) a report as to the aggregate of amounts
reported pursuant to clauses (b)(i), (ii) and (iii) of this Section 5.08
for such calendar year or applicable portion thereof during which
such Person was a Certificateholder and (b) such information as
may be reasonably requested by the Certificateholders or required
by the Code, and the regulations thereunder, to enable such
Holders to prepare their federal and state income tax returns.
Within thirty (30) days after the end of each calendar year, the
Trustee shall furnish or shall cause to be furnished to the Seller a
statement containing such of the information provided pursuant to
this Section 5.08 as relates to distributions to the Seller,
aggregated for such calendar year, as well as information
respecting the amounts which were transferred from the Reserve
Fund to make payments to Certificateholders and amounts
otherwise distributable to the Seller which were placed in the
Reserve Fund. The obligation of the Trustee set forth in this
paragraph shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the
Backup Servicer pursuant to any requirements of the Code.
The Seller shall prepare any tax returns or other forms
required to be filed by the Trust. The Trustee, upon request, will
furnish the Seller with all information known to the Trustee as may
be reasonably required in connection with the preparation of all tax
returns of the Trust.
Section 5.09. Reliance on Information from the Servicer.
Notwithstanding anything to the contrary contained in this
Agreement, all distributions from any of the accounts described in
this Article V and any movement of cash between such accounts
shall be made by the Trustee in reliance on information provided
to the Trustee by the Servicer in writing, whether by way of the
Servicer's Monthly Servicing Certificate or otherwise unless the
Trustee has actual knowledge or notice of any inaccuracy therein.
ARTICLE VI
RIGHTS OF CERTIFICATEHOLDERS
The Certificates shall represent fractional undivided
interests in the assets of the Trust which shall consist of the right
to receive, at the time and in the amount specified herein pursuant
to Section 5.01, a Percentage Interest in distributions with respect
to the Trust Property secured by funds available pursuant to the
Reserve Fund. Any other right to receive payments or
distributions hereunder shall not represent any interest in the
Accounts or the Reserve Fund, except as specifically provided in
this Agreement. The parties hereto and the Certificateholders
agree that the Certificates represent undivided interests in the
Receivables, which Receivables shall constitute stripped bonds
within the meaning of Section 1286 of the Code.
ARTICLE VII
THE CERTIFICATES
Section 7.01. The Certificates. The Certificates shall be
substantially in the form of Exhibit A. The Certificates shall be
issuable in minimum denominations in Certificate Balances of
$250,000 and integral multiples of $1,000 in excess thereof. The
Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of a Trustee Officer of the Trustee under the
Trustee's seal imprinted thereon and shall bear legends restricting
the transfer thereof. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be valid and binding obligations of the Trust,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates.
Section 7.02. Execution, Authentication of Certificates.
The Trustee shall cause the Certificates to be executed on behalf
of the Trust, and delivered to or upon the written order of the
Seller pursuant to this Agreement. No Certificate shall entitle its
Holder to any benefit under this Agreement or shall be valid for
any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in
Exhibit A hereto executed by the Trustee by manual signature;
such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication.
Section 7.03. Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall maintain a
Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Register
shall provide for the registration of Certificates and
transfers and exchanges of Certificates as provided in this
Agreement. The Trustee is hereby initially appointed
Certificate Registrar for the purpose of registering
Certificates and transfers and changes of Certificates as
provided in this Agreement. In the event that, subsequent
to the Closing Date, the Trustee notifies the Seller that it
is unable to act as Certificate Registrar, the Seller shall
appoint another bank or trust company, having an office or
agency located in the Borough of Manhattan, The City of
New York, agreeing to act in accordance with the
provisions of this Agreement applicable to it, and otherwise
acceptable to the Trustee, to act as successor Certificate
Registrar under this Agreement.
No transfer of a Certificate shall be made unless (I)
(a) such transfer is made pursuant to an effective
registration statement under the Securities Act and any
applicable state securities laws or (b) (i) such transfer is
exempt from the registration requirements under the
Securities Act and such state securities laws or (ii) the
Certificate Registrar is notified by such transferee that such
Certificate will be registered in the name of the Clearing
Agency or its nominee and shall be held by such transferee
in book-entry form through the Clearing Agency, and (II)
such transfer is to a Person that satisfies the requirements
of paragraph (a) (2) (i) or (a) (2) (ii) of Rule 3a-7 as then
in effect or any successor rule ("Rule 3a-7") under the
Investment Company Act. Each prospective purchaser of
a non-registered Certificate not held in book-entry form
shall deliver a completed and duly executed Transferee's
Certificate in the form of Exhibit J or K, as applicable, to
the Trustee and to the Seller for inspection prior to
effecting any requested transfer. The Seller and the
Trustee may rely conclusively upon the information
contained in any such certificate in the absence of
knowledge to the contrary. In connection with any transfer
within three years from the date of the initial issuance of
the Certificates (other than the transfer of any Certificate
that is or has become registered under the Securities Act on
or before such transfer or any transfer of a Certificate held
in book-entry form), the Trustee shall (except in the case
of a transfer to a "qualified institutional buyer") require an
Opinion of Counsel to the effect that such transfer may be
effected without registration under the Securities Act,
which Opinion of Counsel shall be addressed to the Seller
and the Trustee and shall be secured at the expense of the
Holder. Each Certificate Owner shall be deemed to have
agreed to these restrictions on transfer.
(b) If an election is made to hold a Certificate in
book-entry form, the Certificate shall be registered in the
name of a nominee designated by the Clearing Agency (and
may be aggregated as to denominations with other
Certificates held by the Clearing Agency). With respect to
Certificates held in book-entry form:
(1) the Certificate Registrar and the
Trustee will be entitled to deal with the Clearing
Agency for all purposes of this Agreement
(including the payment of principal of and interest
on the Certificates and the giving of instructions or
directions hereunder) as the sole Holder of the
Certificates, and shall have no obligation to the
Certificate Owners;
(2) the rights of Certificate Owners will
be exercised only through the Clearing Agency and
will be limited to those established by law and
agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency
Participants pursuant to the Depository Agreement;
(3) whenever this Agreement requires or
permits actions to be taken based upon instructions
or directions of Holders of Certificates evidencing
a specified percentage of the Outstanding Amount of
the Certificates, the Clearing Agency will be
deemed to represent such percentage only to the
extent that it has received instructions to such effect
from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively,
such required percentage of the beneficial interest in
the Certificates and has delivered such instructions
to the Trustee; and
(4) without the consent of the Seller and
the Trustee, no such Certificate may be transferred
by the Clearing Agency except to a successor
Clearing Agency that agrees to hold such Certificate
for the account of the Certificate Owners or except
upon the election of the Certificate Owner thereof
or a subsequent transferee to hold such Certificate
in physical form.
Neither the Trustee nor the Certificate Registrar
shall have any responsibility to monitor or restrict the
transfer of beneficial ownership in any Certificate an
interest in which is transferable through the facilities of the
Clearing Agency.
The Seller shall cause each Certificate to contain a
legend stating that transfer of the Certificates is subject to
certain restrictions and referring prospective purchasers of
the Certificates to this Section 7.03 with respect to such
restrictions.
(c) The Certificates, until such time, if at all, as
they become registered under the Securities Act, shall bear
legends stating that they have not been registered under the
Securities Act and are subject to the restrictions on transfer
described in Section 7.03(a). By purchasing a Certificate,
each purchaser shall be deemed to have agreed to these
restriction on transfer.
(d) The Holder of a Certificate desiring to effect
any transfer or assignment shall, and the transferee of such
Certificate by purchasing such Certificate agrees to,
indemnify the Trustee and the Seller against any liability
that may result if the transfer or assignment is not made in
accordance with the provisions of this Section 7.03 and
applicable federal and state securities laws.
(e) Upon surrender for registration of transfer of
any Certificate at the Corporate Trust Office, the Trustee
shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new
Certificates in authorized denominations of a like aggregate
principal amount.
(f) At the option of a Certificateholder, such
holder's Certificates may be exchanged for other
Certificates in authorized denominations of a like aggregate
principal amount, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange the Trustee on
behalf of the Trust shall execute, authenticate and deliver
the Certificates that the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer and
exchange shall be cancelled and subsequently disposed of
by the Trustee.
(h) No service charge shall be made to the
Certificateholders for any registration of transfer or
exchange of Certificates, but the Trustee may require
payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
Section 7.04. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered
to the Certificate Registrar, or if the Certificate Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft
of any Certificate (provided that a Certificateholder's written
statement with respect to such destruction, loss or theft shall
constitute satisfactory evidence thereof) and (b) there shall be
delivered to the Certificate Registrar and the Trustee such security
or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, the Trustee on behalf
of the Trust shall execute and the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor
and denomination. In connection with the issuance of any new
Certificate under this Section 7.04, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to
this Section 7.04 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 7.05. Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Trustee
or the Certificate Registrar may treat the Person in whose name
any Certificate shall be registered as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 5.06
and for all other purposes whatsoever, and neither the Trustee nor
the Certificate Registrar shall be bound by any notice to the
contrary.
Section 7.06. Access to List of Certificateholders' Names
and Addresses. The Trustee shall furnish or cause to be furnished
to the Servicer, at the expense of the Trust, within 15 days after
receipt by the Trustee of a request therefor from the Servicer in
writing, a list, in such form as the Servicer may reasonably
require, of the names and addresses of the Certificateholders as of
the most recent Record Date. Each Holder, by receiving and
holding a Certificate, shall be deemed to have agreed to hold
neither the Servicer nor the Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from
which such information was derived.
Section 7.07. Maintenance of Office or Agency. The
Trustee shall maintain in Minneapolis, Minnesota, or New York,
New York, an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustee
in respect of the Certificates and this Agreement may be served.
The Trustee initially designates the Corporate Trust Office as
specified in this Agreement as its office for such purposes. The
Trustee shall give prompt written notice to the Backup Servicer
and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section 7.08. Notices to Certificateholders. Whenever
notice or other communication to the Certificateholders is required
under this Agreement, the Trustee shall give all such notices and
communications specified herein to be given to Holders of the
Certificates at their respective addresses as they appear in the
Certificate Register.
ARTICLE VIII
THE SELLER
Section 8.01. Representations of Seller. The Seller makes
the following representations on which the Trustee relies in
accepting the Receivables in trust and executing and authenticating
the Certificates on the Closing Date. The representations speak as
of the Closing Date, but shall survive the pledge, transfer and
assignment of the Receivables to the Trustee in trust for the benefit
of the Certificateholders.
(a) Organization and Good Standing. The
Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) Due Qualification. The Seller is in good
standing and duly qualified to do business and has obtained
all necessary licenses and approvals in the States of
Delaware and New Jersey and all other jurisdictions in
which the ownership or lease of property or the conduct of
its business shall require such qualifications, unless the
failure of the Seller to obtain such licenses and approvals
would have no material adverse effect on the Seller's
ability to fulfill its obligations hereunder.
(c) Power and Authority. The Seller has the
power and authority to execute and deliver this Agreement
and to carry out its terms; the Seller has full power and
authority to sell and assign the property to be so sold and
assigned to and deposited with the Trustee as part of the
Trust and such sale and assignment is valid and binding
against the Seller and has been duly authorized by the
Seller by all necessary action; and the execution, delivery
and performance of this Agreement have been duly
authorized by the Seller by all necessary action and this
Agreement is the legal, valid and binding obligation of the
Seller, enforceable in accordance with its terms. The
Seller has duly executed and delivered this Agreement and
any other agreements and documents necessary to effectuate
the transactions contemplated hereby.
(d) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment of the terms hereof neither conflict with, result
in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or bylaws of the
Seller, or any indenture, agreement, or other instrument to
which the Seller is a party or by which it shall be bound;
nor result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable
to the Seller of any court or of any federal or State
regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the
Seller or its properties.
(e) No Proceedings. To the Seller's
knowledge, there are no proceedings or investigations
pending, or threatened, before any court, regulatory body,
administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its
properties: (i) asserting the invalidity of this Agreement,
the Purchase Agreement or the Certificates; (ii) seeking to
prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by
the Purchase Agreement or this Agreement; (iii) seeking
any determination or ruling that might materially and
adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement, the Purchase Agreement or the Certificates; or
(iv) relating to the Seller and which might adversely affect
the federal or State income tax attributes of the Certificates.
(f) No Approvals. No approval, authorization
or other action by, or filing with, any governmental
authority of the United States of America or any of the
States is required or necessary to consummate the
transactions contemplated hereby, except as such as have
been duly obtained or made by the Closing Date. Seller
complies in all material respects with all applicable laws,
rules and orders with respect to itself, its business and
properties and the Receivables; and Seller maintains all
applicable permits and certifications.
(g) Taxes. The Seller has filed all federal,
State, county, local and foreign income, franchise and other
tax returns required to be filed by it through the date
hereof, and has paid all taxes reflected as due thereon.
There is no pending dispute with any taxing authority that,
if determined adversely to the Seller, would result in the
assertion by any taxing authority of any material tax
deficiency, and the Seller has no knowledge of a proposed
liability for any tax to be imposed upon the Seller's
properties or assets for which there is not an adequate
reserve reflected in the Seller's current financial statements.
(h) Adequate Provisions for Taxes. The
provisions for taxes on the Seller's books are in accordance
with generally accepted accounting principles.
(i) Pension/Profit Sharing Plans. No
contribution failure has occurred with respect to any
pension or profit sharing plan, and all such plans have been
fully funded as of the date of this Agreement.
(j) Trade Names. "Aegis Auto Funding
Corp." is the only trade name under which the Seller is
currently operating its business and under which the Seller
operated its business for the period of time during which
the Seller was in existence preceding the Closing Date.
(k) Ability to Perform. There has been no
material impairment in the ability of Seller to perform its
obligations under this Agreement.
(l) Chief Executive Office. Since its
inception, the Seller has maintained its chief executive
office in the State of New Jersey and there have been no
other locations of the Seller's chief executive office
preceding the Closing Date. The Seller shall give written
notice to the Trustee and the Certificateholders at least 30
days prior to relocating its chief executive office and shall
make such filings under the UCC as shall be necessary to
maintain the perfected, first priority security interest in the
Receivables granted hereunder in favor of the Trust.
(m) Adverse Orders. There is no injunction,
writ, restraining order or other order of any nature binding
upon Seller that adversely affects Seller's performance of
this Agreement and the transactions contemplated thereby.
(n) Solvent. Seller is solvent and will not
become insolvent after giving effect to the transactions
contemplated hereunder; Seller is paying its debts as they
become due; Seller, after giving effect to the contemplated
transactions, will have adequate capital to conduct its
business.
(o) Lock-Box Account. Each Obligor of a
Receivable has been directed and is required to remit
payments to the Lock-Box Account.
(p) Consolidation. Seller has operated and
will operate its business such that its assets and liabilities
will not be substantively consolidated with the assets and
liabilities of Aegis Finance and its separate existence will
not be disregarded in any state or federal court proceeding.
(q) Business Purpose. The Seller will acquire
and sell, transfer, assign and otherwise convey (for state
law, tax and financial accounting purposes) the Receivables
for a bona fide business purpose.
(r) Federal Income Tax Purposes. The Seller
intends to treat the transactions contemplated under this
Agreement as a sale of the Receivables to the Trust for
federal income tax purposes, subject to the retention by the
Seller of a stripped coupon therein as described in Section
1286 of the Code. The Seller and the Trustee intend to
cause to be filed all returns or reports in a manner
consistent with such treatment.
(s) Valid Transfer. The Purchase Agreement
constitutes a valid transfer to the Seller of all of Aegis
Finance's right, title and interest in the Receivables
transferred to the Seller pursuant to such Purchase
Agreement.
(t) Seller's Obligations. The Seller has
submitted all necessary documentation for payment of the
Receivables to the Obligors and has fulfilled all of its
applicable obligations hereunder required to be fulfilled as
of the Closing Date.
(u) 1940 Act. The Seller is not, and is not
controlled by, an "investment company" registered or
required to be registered under the Investment Company
Act of 1940, as amended.
Section 8.02. Liability of Seller; Indemnities. The Seller
shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under this
Agreement, and only to the extent of the Seller's interest in the
Trust Property.
(a) The Seller shall indemnify, defend and
hold harmless the Trustee, the Trust, the Backup Servicer,
the Custodian and each Certificateholder from and against
any taxes, other than income and franchise taxes, that may
at any time be asserted against the Trustee, the Trust, the
Backup Servicer, the Custodian or the Certificateholders
with respect to, and as of the date of, the transfer of the
Receivables to the Trust or the issuance and original sale
of the Certificates, including any sales, gross receipts,
general corporation, tangible personal property, privilege
or license taxes and costs and expenses in defending against
the same.
(b) The Seller shall assume, defend and hold
harmless the Trustee, the Trust, the Backup Servicer, the
Custodian and each Certificateholder from and against any
loss, liability, expense or action, suit, claim or damage
incurred by reason of (i) the Seller's willful misfeasance,
bad faith or negligence in the performance of its duties
under this Agreement, or by reason of reckless disregard
of its obligations and duties under this Agreement (and
such indemnity shall extend to the performance of the
Seller's duties and the satisfaction of its obligations with
respect to any Receivables that become Purchased
Receivables, as provided in this Agreement), (ii) the
Seller's violation of federal or State securities laws in
connection with the exemption from registration of the sale
of the Certificates, and (iii) any transaction arising out of
or contemplated by this Agreement except any loss,
liability, expense, action, suit, claim or damage arising out
of the failure to pay principal, premium, if any, or interest
with respect to the Certificates to the extent such failure
does not result from the Seller's omission to comply with
the terms of this Agreement or acts of the Seller in
contravention of this Agreement.
The assumption of liability or indemnification under this
Section 8.02 shall include, without limitation, reasonable fees and
expenses of counsel and expenses of litigation and shall survive
termination of this Agreement. If the Seller shall have made any
payments to the Trustee pursuant to this Section and the Trustee
thereafter shall collect any of such amounts from others, the
Trustee shall repay such amounts to such party without interest.
Notwithstanding anything to the contrary herein, the liability of the
Seller under this Section 8.02 is intended to be the same primary
liability as would apply to the general partner of a limited
partnership organized under the laws of the State of Delaware.
Potential creditors of the Trust are intended beneficiaries of the
assumption of liabilities by the Seller under this Section 8.02 and
may enforce such assumption in accordance with its tenor.
Section 8.03. Merger or Consolidation of, or Assumption
of the Obligations of, Seller. Any Person (a) into which the Seller
may be merged or consolidated, (b) which may result from any
merger or consolidation to which the Seller shall be a party, or (c)
which may succeed to the properties and assets of the Seller
substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every
obligation of the Seller under this Agreement, shall be the
successor to the Seller hereunder without the execution or filing of
any document or any further act by any of the parties to this
Agreement; provided, however, that (i) immediately after giving
effect to such transaction, no representation or warranty or
covenant made pursuant to Section 3.01 or Section 8.01 shall have
been breached, no Event of Servicing Default, and no event that,
after notice or lapse of time, or both, would become an Event of
Servicing Default shall have happened and be continuing and the
conditions of Section 8.07(a)(ii) shall have been satisfied, (ii) the
Seller shall have delivered to the Trustee and each
Certificateholder an Officer's Certificate and an Opinion of
Counsel, which shall be independent outside counsel, each stating
that such consolidation, merger or succession and such agreement
or assumption comply with this Section 8.03 and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with and (iii) the Seller shall have
delivered to the Trustee an Opinion of Counsel, which shall be
independent outside counsel, either (A) stating that, in the opinion
of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed
that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables, and reciting the details of such filings,
or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The
Seller shall provide notice of any merger, consolidation or
succession pursuant to this Section 8.03 to each Rating Agency and
each Certificateholder and each Rating Agency shall have
confirmed in writing to the Seller and the Trustee (a copy of which
confirmation shall have been delivered by the Seller to each
Certificateholder) that such merger, consolidation or succession
shall not result in a downgrade or withdrawal of the current rating
of the Certificates by such Rating Agency. Notwithstanding
anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (i), (ii) and
(iii) above shall be conditions to the consummation of the
transactions referred to in clauses (a), (b) or (c) above.
Section 8.04. Limitation on Liability of Seller and Others.
The Seller and any director or officer or employee or agent of the
Seller or the Seller's general partner may rely in good faith on the
written advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting
any matters arising hereunder.
Section 8.05. Seller May Own Certificates. The Seller
and any Affiliate of the Seller may in its individual or any other
capacity become the owner or pledgee of Certificates with the
same rights as it would have if it were not the Seller or an
Affiliate thereof, except as otherwise provided in the definition of
"Certificateholder" in Section 1.01. Certificates so owned by or
pledged to the Seller or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of the
Certificates, other than with respect to Voting Interests.
Notwithstanding the foregoing, the Seller will not, and will not
permit any of their Affiliates (or any Person acting on behalf of
the Seller or any such Affiliate) to directly or indirectly acquire or
make any offer to acquire any Certificates unless the Seller or such
Affiliate (or such Person acting on behalf thereof) shall have
offered to acquire Certificates, pro rata, from all Holders and upon
the same terms.
Section 8.06. Covenants of the Seller. The Seller shall:
(a) not impair the rights of the
Certificateholders or the Trustee in the Receivables;
(b) except for the sale and assignment effected
under this Agreement and prior to the termination of the
Trust, not sell, pledge, assign, or transfer to any other
Person, or grant, create, incur, assume, or suffer to exist
any Lien on any Receivable sold to the Trustee or any
interest therein;
(c) immediately notify the Trustee of the
existence of any Lien on any Receivable;
(d) defend the right, title, and interest of the
Trustee in, to, and under the Receivables transferred to the
Trustee, against all claims of third parties claiming through
or under the Seller, Aegis Finance or the Servicer;
(e) make at its sole cost and expense any
filings, reports, notices, applications, registrations with,
and seek any consents or authorizations from, the Securities
and Exchange Commission and any state securities
authority on behalf of the Trust as may be necessary or
advisable or reasonably requested by the Trustee, and shall
comply with any federal or State securities or reporting
requirements laws;
(f) comply in all respects with the terms and
conditions of the Purchase Agreement and not amend,
modify, or waive any provision of the Purchase Agreement
in any manner relating to the obligation of Aegis Finance
to repurchase Receivables or in any manner that would
have a materially adverse effect on the interests of the
Certificateholders;
(g) promptly notify the Trustee and the
Certificateholders of the occurrence of any Event of
Backup Servicing Default or Event of Servicing Default
and any breach by the Seller or the Backup Servicer of any
of its respective covenants or representations and warranties
contained in this Agreement or, with respect to the Seller,
in the Purchase Agreement;
(h) make at its sole cost and expense any
filings, reports, notices, or applications and seek any
consents or authorizations from any and all government
agencies, tribunals, or authorities in accordance with the
UCC and any State vehicle license or registration authority
on behalf of the Trust as may be necessary or advisable or
reasonably requested by the Trustee to create, maintain and
protect a first-priority perfected security interest of the
Trust in, to, and on the Financed Vehicles and a
first-priority perfected ownership interest of the Trust in,
to, and on the Receivables transferred to it;
(i) if requested by the Majority
Certificateholders, cooperate with the Certificateholders in
obtaining, and thereafter maintain, a rating on the
Certificates by DCR and/or Fitch; the expenses of
maintaining any such rating shall be paid as an expense of
the Trust; and
(j) upon request of any Certificateholder,
furnish the information required by paragraph (d)(4) of
Rule 144A promulgated under the Securities Act.
Section 8.07. Enforcement by Trustee. The Seller hereby
acknowledges and agrees that the following covenants and
agreements of the Seller shall be enforceable by the Trustee at all
times until the Trust is terminated.
(a) Covenants Regarding Operations:
(i) The Seller shall not engage in any
business or activity other than in connection with or
relating to the purchase of auto loan receivables and
the issuance of rated debt secured by, or certificates
of participation in, a pool of auto loan receivables.
(ii) The Seller shall not consolidate or
merge with or into any other entity or convey or
transfer its properties and assets substantially as an
entirety to any entity unless (A) the entity (if other
than the Seller) formed or surviving such
consolidation or merger, or that acquires by
conveyance or transfer the properties and assets of
the Seller substantially as an entirety, shall be
organized and existing under the laws of the United
States of America or any State thereof or the
District of Columbia, and shall expressly assume in
form satisfactory to each Rating Agency, if any,
and the Majority Certificateholders, the performance
of every covenant on the part of the Seller to be
performed or observed pursuant to this Agreement
and the Purchase Agreement, (B) immediately after
giving effect to such transaction, no default or event
of default under this Agreement shall have occurred
and be continuing and (C) the Seller shall have
delivered to each Rating Agency, if any, each
Certificateholder and the Trustee an Officers'
Certificate and an opinion of independent counsel,
each stating that such consolidation, merger,
conveyance or transfer comply with this Agreement.
(iii) The Seller shall not dissolve or
liquidate, in whole or in part, except (A) as
permitted in paragraph (ii) above or (B) with the
prior written consent of the Trustee and the
Majority Certificateholders (if the Certificates are
not then rated) and prior written confirmation from
each Rating Agency, if any, (a copy of which shall
be provided to the Trustee and each
Certificateholder by the Seller) that such dissolution
or liquidation will have no adverse effect on the
rating assigned to the Rated Certificates.
(iv) The funds and other assets of the
Seller shall not be commingled with those of any
other corporation, entity or Person, including, but
not limited to, the parent or Affiliates of the Seller.
(v) The Seller shall not hold itself out as
being liable for the debts of any other party,
including, but not limited to, the debts of the parent
or Affiliates of the Seller.
(vi) The Seller shall not form, or cause to
be formed, or otherwise have, any subsidiaries.
(vii) The Seller shall act solely in its
corporate name and through the duly authorized
officers or agents in the conduct of its business, and
shall conduct its business so as not to mislead others
as to the identity of the entity with which they are
concerned.
(viii) At all times, except in the case of a
temporary vacancy, which shall promptly be filled,
the Seller shall have on its board of directors at
least one director who qualifies as an "Independent
Director" as such term is defined in the Seller's
Certificate of Incorporation as originally filed with
the Delaware Secretary of State's office.
(ix) The Seller shall maintain records and
books of account of the Seller and shall not
commingle such records and books of account with
the records and books of account of any Person.
The books of the Seller may be kept (subject to any
provision contained in the statutes) inside or outside
the State of New Jersey at such place or places as
may be designated from time to time by the board
of directors of the Seller.
(x) The board of directors of the Seller
shall hold appropriate meetings to authorize all of
its corporate actions. Regular meetings of the board
of directors of the Seller shall be held not less
frequently than three times per annum.
(xi) Meetings of the shareholders of the
Seller shall be held not less frequently than one time
per annum.
(xii) The Seller shall not amend, alter,
change or repeal any provision contained in this
Section 8.07(a) without (A) the affirmative vote in
favor thereof of eighty percent (80%) of the then
outstanding shares of the Seller entitled to vote
thereon; (B) the prior written consent of the Trustee
and the Majority Certificateholders; and (C) the
prior written confirmation from each Rating
Agency, if any, that the rating on the Rated
Certificates will not be impaired.
(xiii) The Seller shall not, without the
affirmative unanimous vote of the whole board of
directors of the Seller (including at least one
director referred to in clause (viii) above), institute
any proceedings to adjudicate the Seller a bankrupt
or insolvent, consent to the institution of bankruptcy
or insolvency proceedings against the Seller, file a
petition seeking or consenting to reorganization or
relief under any applicable federal or State law
relating to bankruptcy, consent to the appointment
of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Seller
or a substantial part of its property or admit its
inability to pay its debts generally as they become
due or authorize any of the foregoing to be done or
taken on behalf of the Seller.
(xiv) The Seller is not and shall not be
involved in the day-to-day or other management of
its parent or any of its Affiliates.
(xv) Other than the purchase and sale or
pledge of assets as provided in this Agreement and
related agreements with respect to this transaction
and other transactions relating to the purchase of
auto loan receivables and the issuance of rated debt
or rated certificates of participation, the Seller shall
engage in no other transactions with any of its
Affiliates.
(xvi) Seller shall maintain a separate
business office and telephone number from any of
its Affiliates.
(xvii) Seller's financial statements shall
reflect its separate legal existence from any of its
Affiliates.
(xviii) The Seller will not amend its
Certificate of Incorporation in any respect material
to the Certificateholders without the consent of the
Majority Certificateholders (or, if the Certificates
have been rated, by each Rating Agency.)
(xix) The Seller shall use separate
invoices, stationery and checks.
(xx) The Seller shall not suffer or permit
the credit or assets of Aegis Finance to be held out
as available for the obligations of the Seller.
(xxi) The Seller shall enter into
transactions with Aegis Finance or its affiliates only
on commercially reasonable terms.
(xxii) The Seller shall not incur or issue
any "Obligation" (as such term is defined in its
Certificate of Incorporation) in contravention of the
limitations set forth therein.
(xxiii) The Seller shall not issue any
"Securities" or incur or issue any "Obligations" (as
such terms are defined in its Certificate of
Incorporation) under any other pooling and
servicing agreement, purchase agreement or
otherwise, unless such agreement contains an
express provision substantially similar to Section
13.10 hereof limiting recourse to the Seller to the
assets involved in the transaction to which such
agreement relates.
Section 8.08. No Bankruptcy Petition. The Seller
covenants and agrees that prior to the date which is one year and
one day after the payment in full of all securities issued by the
Seller or by a trust for which the Seller was the depositor, which
securities were rated by any nationally recognized statistical rating
organization, it will not institute any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy or similar law.
ARTICLE IX
THE BACKUP SERVICER
Section 9.01. Representations of Backup Servicer. The
Backup Servicer makes the following representations on which the
Trustee relies in accepting the Receivables in trust and executing
and authenticating the Certificates on the Closing Date. The
representations speak as of the Closing Date, but shall survive the
sale and assignment of the Receivables to the Trustee in trust for
the benefit of the Certificateholders.
(a) Organization and Good Standing. The
Backup Servicer shall have been duly organized and shall
be validly existing and in good standing under the federal
laws of the United States of America, with power and
authority to own its properties and to conduct its business
as such properties shall be currently owned and such
business is presently conducted.
(b) Power and Authority. The Backup Servicer
shall have the power and authority to execute and deliver
this Agreement and the Servicing Agreement and to carry
out their respective terms; and the execution, delivery and
performance of this Agreement and the Servicing
Agreement shall have been duly authorized by the Backup
Servicer by all necessary corporate action. Each of this
Agreement and the Servicing Agreement constitutes the
valid and binding obligation of the Backup Servicer
enforceable in accordance with its terms.
(c) No Violation. The consummation of the
transactions by the Backup Servicer contemplated by this
Agreement and the Servicing Agreement and the fulfillment
of the terms hereof and thereof neither conflict with, result
in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default
under, the charter or bylaws of the Backup Servicer, or, to
the best of the Backup Servicer's knowledge, any
indenture, agreement or other instrument to which the
Backup Servicer is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement
and the Servicing Agreement); nor to the best of the
Backup Servicer's knowledge, any law, order, rule or
regulation applicable to the Backup Servicer of any court
or of any federal or state regulatory body, administrative
agency, or other governmental instrumentality having
jurisdiction over the Backup Servicer or its properties.
(d) No Proceedings. To the Backup Servicer's
best knowledge, there are no proceedings or investigations
pending, or threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Backup Servicer or its
respective properties: (A) asserting the invalidity of this
Agreement or the Servicing Agreement; (B) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement or the Servicing
Agreement; or (C) seeking any determination or ruling that
might materially and adversely affect the performance by
the Backup Servicer of its obligations under, or the validity
or enforceability of, this Agreement or the Servicing
Agreement.
Section 9.02. Merger or Consolidation of, or Assumption
of the Obligations of, or Resignation of Backup Servicer. Any
Person (a) into which the Backup Servicer may be merged or
consolidated, (b) which may result from any merger or
consolidation to which the Backup Servicer shall be a party, (c)
which may succeed to the properties and assets of the Backup
Servicer substantially as a whole, or (d) which may succeed to the
duties and obligations of the Backup Servicer under this Agreement
and the Servicing Agreement following the resignation of the
Backup Servicer, whether or not such Person executes an
agreement of assumption to perform every obligation of the
Backup Servicer hereunder and thereunder, shall be the successor
to the Backup Servicer under this Agreement and the Servicing
Agreement without further act on the part of any of the parties to
this Agreement or the Servicing Agreement. If at any time
thereafter any Rating Agency shall have delivered to the Backup
Servicer and to the Trustee a statement that such transaction will
have an adverse effect on the rating assigned to the Rated
Certificates, if any, then such transaction shall be deemed to
constitute an Event of Backup Servicing Default.
Section 9.03. Limitation on Liability of Backup Servicer
and Others. Neither the Backup Servicer nor any of the directors
or officers or employees or agents of the Backup Servicer shall be
under any liability to the Trust or the Certificateholders, except as
provided under this Agreement, for any action taken or for
refraining from the taking of any action pursuant to this
Agreement; provided, however, that this provision shall not protect
the Backup Servicer or any such Person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement.
The Backup Servicer and any director or officer or employee or
agent of the Backup Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising under this
Agreement.
Except as provided in this Agreement, the Backup Servicer
shall not be under any obligation to appear in, prosecute or defend
any legal action that shall not be incidental to its duties under this
Agreement and the Servicing Agreement, and that in its opinion
may involve it in any expense or liability; provided, however, that
the Backup Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and
the Servicing Agreement and the rights and duties of the parties to
this Agreement and the Servicing Agreement and the interests of
the Certificateholders under this Agreement and the Servicing
Agreement. In such event, the legal expenses and costs of such
action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust and the Backup Servicer shall be entitled
to be reimbursed therefor.
The Trustee shall distribute out of the Collection Account
on the Distribution Date succeeding the delivery of the Opinion of
Counsel referred to below, without regard to any deficiencies in
the amounts required to be distributed pursuant to Section 5.06,
any expenses, costs or liabilities required from the Trust pursuant
to this Section 9.03, provided, however, that the Trustee shall only
distribute amounts pursuant to this Section 9.03 upon the Trustee's
receipt of an Opinion of Counsel to the effect that such distribution
is permitted by this Agreement.
Section 9.04. Successor Backup Servicer. The Backup
Servicer under this Agreement shall at all times be a corporation
or a banking association organized and existing in good standing
under the laws of the United States or a state thereof; having a
combined capital and surplus as designated from time to time by
the Majority Certificateholders (or, if the Certificates have been
rated, by each Rating Agency) or as otherwise approved by the
Majority Certificateholders (or, if the Certificates have been rated,
by each Rating Agency) (but in any event not less than
$100,000,000) and subject to supervision or examination by federal
or state authorities. If such association or corporation shall publish
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section 9.04, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Backup Servicer
shall cease to be eligible in accordance with the provisions of this
Section 9.04, or shall cease to be an Eligible Servicer, the Backup
Servicer shall resign immediately in the manner and with the effect
specified in Section 4.02.
Section 9.05. No Bankruptcy Petition. The Backup
Servicer covenants and agrees that prior to the date which is one
year and one day after the payment in full of all securities issued
by the Seller or by the Trust it will not institute against, or join
any other Person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or
similar law; provided, however, that nothing contained herein shall
prohibit the Backup Servicer from participating in any existing
bankruptcy proceeding.
ARTICLE X
BACKUP SERVICING DEFAULT
Section 10.01. Events of Backup Servicing Default. If
any one of the following events ("Events of Backup Servicing
Default") shall occur and be continuing:
(a) Failure to make any payment, transfer or
deposit required to be made by the Backup Servicer under
the terms of this Agreement or the Servicing Agreement,
which failure shall continue for two (2) Business Days after
the date due; or
(b) Failure on the part of the Backup Servicer
duly to observe or to perform in any material respect any
covenant or agreement of the Backup Servicer set forth in
this Agreement or the Servicing Agreement, which failure
shall (i) materially and adversely affect the rights of
Certificateholders and (ii) continue unremedied for a period
of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been
sent (A) to the Backup Servicer by the Trustee, or (B) to
the Backup Servicer and to the Trustee by the Holders of
Certificates evidencing not less than 20% of the Voting
Interests thereof; or
(c) The entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or
liquidator for the Backup Servicer in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of
its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 30 consecutive days;
or
(d) The consent by the Backup Servicer to the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to the
Backup Servicer or of or relating to substantially all of its
property; or the Backup Servicer shall admit in writing its
inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit
of its creditors or voluntarily suspend payment of its
obligations;
then, and in each and every case, so long as an Event of Backup
Servicing Default shall not have been remedied, either the Trustee,
or the Holders of the Certificates evidencing not less than 20% of
the Voting Interests thereof, by notice then given in writing to the
Backup Servicer (and to the Trustee if given by the
Certificateholders) may terminate all of the rights and obligations
of the Backup Servicer under this Agreement. Thirty (30) days
after the receipt by the Backup Servicer of such written notice, all
authority and power of the terminated Backup Servicer under this
Agreement, whether with respect to the Certificates or the
Receivables or otherwise, shall, without further action, pass to and
be vested in the Trustee if the Trustee is not the same entity as the
terminated Backup Servicer and a successor Backup Servicer has
not been appointed under Section 10.02. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the
predecessor Backup 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. The predecessor Backup
Servicer shall cooperate with the successor Backup Servicer and
the Trustee in effecting the termination of the responsibilities and
rights of the predecessor Backup Servicer under this Agreement.
Upon receipt of notice of the occurrence of an Event of Backup
Servicing Default, the Trustee shall give notice thereof to each
Rating Agency, if any.
Section 10.02. Appointment of Successor.
(a) Upon a Backup Servicer's receipt of notice
of termination pursuant to Section 10.01 or a Backup
Servicer's resignation in accordance with Section 4.02, the
predecessor Backup Servicer shall continue to perform its
functions as Backup Servicer under this Agreement until
receipt of such notice and, in the case of resignation, until
a successor Backup Servicer shall have assumed the duties
of the Backup Servicer in accordance with this Section
10.02. In the event of a Backup Servicer's termination
hereunder, the Trustee (with the consent of the Majority
Certificateholders) shall appoint a successor Backup
Servicer, and the successor Backup Servicer shall accept its
appointment by a written assumption in form acceptable to
the Trustee. In the event that a successor Backup Servicer
has not been so appointed (i) within 45 days of delivery of
notice of termination, or (ii) within 30 days of resignation,
the Trustee may petition a court of competent jurisdiction
to appoint any established institution, having a combined
capital and surplus of not less than $100,000,000 and
which is an Eligible Servicer, as the successor to the
Backup Servicer under this Agreement.
(b) Upon appointment, the successor Backup
Servicer shall be the successor in all respects to the
predecessor Backup Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Backup Servicer,
including, but not limited to, the assumption by the Backup
Servicer of all duties and obligations of the Servicer in the
event of an Event of Servicing Default with respect to the
Servicer under the Servicing Agreement pursuant to the
terms therein and shall be entitled to all of the rights
granted to the predecessor Backup Servicer, by the terms
and provisions of this Agreement.
(c) The outgoing Backup Servicer shall deliver
to the successor Backup Servicer all documents and records
in its possession which are necessary to enable the
successor Backup Servicer to perform its duties relating to
the Servicing Agreement and the Receivables and otherwise
use its best efforts to effect the orderly and efficient
transfer of the Servicing Agreement to the successor
Backup Servicer.
Section 10.03. Notification to Certificateholders. Upon
any termination of, or appointment of a successor to, a Backup
Servicer pursuant to this Article X, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating
Agency, if any.
Section 10.04. Waiver of Past Defaults. The Majority
Certificateholders (or, in the case of a default referred to in
Section 10.01(a), the Holders of Certificates evidencing 100% of
the Voting Interests thereof) may, on behalf of all Holders of
Certificates, waive any default by the Backup Servicer in the
performance of its obligations hereunder and its consequences.
Upon any such waiver of a past default, such default shall cease to
exist, and any Event of Backup Servicing Default arising therefrom
shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee. The Trustee, both prior
to the occurrence of an Event of Backup Servicing Default and
after an Event of Backup Servicing Default shall have been cured
or waived, shall undertake to perform only such duties as are
specifically set forth in this Agreement. If an Event of Backup
Servicing Default shall have occurred and shall not have been
cured or waived, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and shall use the same
degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of
his own affairs; provided, however, that if the Trustee shall
assume the duties of a Backup Servicer pursuant to Section 10.02,
the Trustee shall perform such duties in accordance with Section
4.06. If the Trustee is uncertain with respect to performing its
duties or if a conflict arises regarding the Trustee's rights, duties
and obligations, the Trustee may petition a court of competent
jurisdiction for written direction or to interplead necessary parties.
Notwithstanding anything in this Agreement to the contrary,
neither the Trustee nor the Backup Servicer shall have any
authority to perform any act which would cause the Trust to be
characterized as an association taxable as a corporation for federal
income tax purposes.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee that shall be specifically
required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform
as to form to the requirements of this Agreement; provided,
however, in the absence of bad faith on its part, the Trustee can
assume the truth and accuracy of the statements made therein and
the genuineness of the signatures thereon.
The Trustee shall take and maintain custody of the Schedule
of Receivables included as an exhibit to this Agreement and shall
retain all Monthly Servicing Certificates identifying Receivables
that become Purchased Receivables and Liquidated Receivables.
The Trustee shall give written notice to each Rating
Agency, if any, the Certificateholders, the Seller and Aegis
Finance of the occurrence, to its actual knowledge, which notice
shall be given within three (3) Business Days' of the Trustee's
receipt of actual knowledge thereof, of any waiver of or any action
taken to cure (i) any default, breach, violation or event permitting
acceleration under the terms of any Receivable; (ii) any continuing
condition that with notice or the lapse of time would constitute a
default, breach, violation or event permitting acceleration under
the terms of any Receivable; (iii) any default or delinquency under
the terms of any Receivable that remained uncured for more than
thirty (30) days after notice to the Seller; or (iv) any event which
constitutes or with notice or the lapse of time would constitute an
Event of Backup Servicing Default or Event of Servicing Default.
The Trustee shall give written notice to each Rating
Agency, if any, and each Certificateholder promptly upon receipt
of a notice from the Backup Servicer pursuant to Section 4.02
hereof or from the Servicer pursuant to paragraph IV.F.1 of the
Servicing Agreement or the Seller pursuant to Section 8.06(g)
hereof of an event which with the giving of notice or the lapse of
time, or both, would constitute an Event of Backup Servicing
Default or an Event of Servicing Default.
The Trustee shall deliver to each Certificateholder (or, if
the Certificates have been rated, to each Rating Agency) by no
later than the 20th calendar day of each month, a certificate signed
by an officer of the Trustee certifying that, as of the date of such
certificate, based solely upon information provided to the Trustee
by the Servicer or the Backup Servicer, the Trustee has no
knowledge of, nor to the Trustee's best knowledge, has any event
occurred which would cause the Trustee to reasonably believe, that
an Event of Backup Servicing Default or an Event of Servicing
Default has occurred.
No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own bad faith; provided,
however, that:
(a) Prior to the occurrence of an Event of
Backup Servicing Default, and after the curing or waiving
of all such Events of Backup Servicing Default that may
have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as shall be
specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely on
the truth of the statements and the correctness of the
opinions expressed upon any certificates or opinions
furnished to the Trustee and conforming as to form to the
requirements of this Agreement;
(b) The Trustee shall not be liable for an error
of judgment made in good faith by a Trustee Officer,
unless it shall be proved that the Trustee shall have been
negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken in good
faith in accordance with this Agreement or at the direction
of the Holders of Certificates evidencing not less than 20%
of the Voting Interests thereof relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement;
(d) The Trustee shall not be charged with
knowledge of any failure by the Backup Servicer (so long
as the Trustee is not the Backup Servicer) or the Servicer
to comply with the obligations, covenants or
representations or warranties of the Backup Servicer or the
Servicer under this Agreement or the Servicing Agreement,
as the case may be, or of any failure by the Seller to
comply with the obligations, covenants or representations
or warranties of the Seller under this Agreement, unless a
Trustee Officer assigned to the Trustee's Corporate Trust
Department obtains actual knowledge of such failure (it
being understood that, so long as the Trustee is not the
Backup Servicer, knowledge of the Backup Servicer is not
attributable to the Trustee) or the Trustee receives written
notice of such failure from the Backup Servicer, Servicer
or the Seller, as the case may be, or any Holder of
Certificates; and
(e) Without limiting the generality of this Section
or Section 11.04, the Trustee (except if also serving as the
Backup Servicer and the duties of the Backup Servicer
require such) shall have no duty (i) to see to any recording,
filing or depositing of this Agreement or any agreement
referred to therein or any financing statement or
continuation statement evidencing a security interest in the
Receivables or the Financed Vehicles, or to see to the
maintenance of any such recording or filing or depositing
or to any rerecording, refiling or redepositing of any
thereof, (ii) to see to any insurance of the Financed
Vehicles or Obligors or to effect or maintain any such
insurance, (iii) to see to the payment or discharge of any
tax, assessment or other governmental charge or any Lien
or encumbrance of any kind owing with respect to,
assessed or levied against, any part of the Trust, (iv) to
confirm or verify the contents of any reports or certificates
of the Servicer delivered to the Trustee pursuant to this
Agreement or the Servicing Agreement believed by the
Trustee to be genuine and to have been signed or presented
by the proper party or parties or (v) to inspect the Financed
Vehicles at any time or ascertain or inquire as to the
performance or observance of any of the Seller's or the
Servicer's representations, warranties or covenants or the
Servicer's duties and obligations as Servicer under this
Agreement and the Servicing Agreement.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights
or powers, if it believes in its sole discretion that the repayment of
such funds or adequate indemnity against such risk or liability shall
not be reasonably assured to it, and none of the provisions
contained in this Agreement or the Servicing Agreement shall in
any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer,
the Backup Servicer or a Servicer under this Agreement or the
Servicing Agreement, as the case may be.
Section 11.02. Trustee's Certificate. On or as soon as
practicable after each Distribution Date on which Receivables shall
be assigned to the Seller pursuant to Section 11.03, the Trustee
shall execute a Trustee's Certificate (in the form of Exhibit N),
based on the information contained in the Monthly Servicing
Certificate for the related Collection Period, amounts deposited to
the Certificate Account and notices received pursuant to this
Agreement, identifying the Receivables repurchased by the Seller
pursuant to Section 3.02 during such Collection Period, and shall
deliver such Trustee's Certificate, accompanied by a copy of the
Monthly Servicing Certificate for such Collection Period to the
Seller. The Trustee's Certificate submitted with respect to such
Distribution Date shall operate, as of such Distribution Date, as an
assignment, without recourse, representation or warranty, to the
Seller, of all the Trustee's right, title and interest in and to such
repurchased Receivable, and all security and documents relating
thereto, such assignment being an assignment outright and not for
security.
Section 11.03. Trustee's Assignment of Purchased
Receivables. With respect to all Receivables repurchased by the
Seller pursuant to Section 3.02, the Trustee shall by a Trustee's
Certificate (in the form of Exhibit N) assign, without recourse,
representation or warranty, to the Seller all the Trustee's right,
title and interest in and to such Receivables, and all security and
documents relating thereto.
Section 11.04. Certain Matters Affecting Trustee. Except
as otherwise provided in Section 11.01:
(a) The Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution,
Officer's Certificate, Monthly Servicing Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the
proper party or parties.
(b) The Trustee may consult with counsel and
any written Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken
or suffered or omitted by it under this Agreement in good
faith and in accordance with such written Opinion of
Counsel.
(c) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or in relation to this Agreement, at
the request, order or direction of any of the
Certificateholders pursuant to the provisions of this
Agreement, unless such Certificateholders shall have
offered to the Trustee security or indemnity, reasonably
satisfactory to the Trustee, against the costs, expenses and
liabilities that may be incurred therein or thereby.
(d) The Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement.
(e) Except as expressly provided herein, the
Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of
Certificates evidencing not less than 20% of the Voting
Interests thereof; provided, however, that the Trustee may
require reasonable indemnity against any cost, expense or
liability as a condition to so proceeding at the direction of
the Certificateholders.
(f) The Trustee may execute any of the trusts or
powers hereunder or perform any duties under this
Agreement either directly or by or through agents or
attorneys or a custodian. The Trustee shall not be
responsible for any misconduct or negligence of any such
agent or custodian appointed with due care by it hereunder
or of the Servicer in its capacity as Servicer. The Trustee
may act upon the opinion or advice of accountants,
engineers or such other professionals as the Trustee deems
necessary and selected by it in the exercise of reasonable
care, and the Trustee may pay reasonable compensation
and shall be entitled to reimbursement hereunder for such
compensation paid to such professionals, which fee shall be
considered an expense of the Trustee to be paid pursuant to
Section 5.06(d)(i).
(g) Subsequent to the sale of the Receivables by
the Seller to the Trust, the Trustee shall have no duty of
independent inquiry, and the Trustee may rely upon the
representations and warranties and covenants of the Seller
and the Servicer contained in this Agreement and the
Servicing Agreement with respect to the Receivables.
Section 11.05. Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates
(other than the certificate of authentication on the Certificates)
shall be taken as the statements of the Seller, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee
shall make no representations as to the validity or sufficiency of
this Agreement, the Trust Property or of the Certificates (other
than the certificate of authentication on the Certificates), or of any
Receivable or related document or the validity, genuineness or
originality of any document delivered to the Trustee in its capacity
as Custodian. The Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and
enforceability of any security interest in any Financed Vehicle or
any Receivable, or the perfection and priority of such a security
interest or the maintenance of any such perfection and priority, or
for or with respect to the efficacy of the Trust or its ability to
generate the payments to be distributed to Certificateholders under
this Agreement, including, without limitation: the existence,
condition, location and ownership of any Financed Vehicle; the
review of any Servicer File or Custodian File therefor; the
existence and enforceability of any physical damage insurance
thereon; the existence and contents of any Receivable or any
Servicer File or Custodian File or any computer or other record
thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any
Receivable or any Servicer File or Custodian File; the performance
or enforcement of any Receivable; the compliance by the Seller or
the Servicer, with any warranty or representation made under this
Agreement or the Servicing Agreement or in any related document
and the accuracy of any such warranty or representation prior to
the Trustee's receipt of notice or other discovery of any
noncompliance therewith or any breach thereof (provided,
however, that the receipt of notice or other discovery of such
noncompliance or breach shall only obligate the Trustee to comply
with the terms of Section 3.02 hereof); any investment of moneys
by the Trustee or any loss resulting therefrom (it being understood
that the Trustee shall remain responsible for any Trust property
that it may hold); the acts or omissions of the Seller, the Servicer
or any Obligor; an action of the Servicer taken in the name of the
Trustee; or any action by the Trustee taken at the instruction of the
Servicer; provided, however, that the foregoing shall not relieve
the Trustee of its obligation to perform its duties under this
Agreement. Except if caused by its negligence or its failure to act
in accordance with reasonable and proper instructions given in
writing received by the Trustee, the Trustee shall not be liable for
losses on investments on the funds or on the accounts established
pursuant to Section 5.01. The Trustee shall not be liable for
collections received by the Servicer prior to deposit by the Servicer
of such collections into the Collection Account or for the
application or misapplication of funds, or for other acts or
defaults, by any person, firm or corporation except its own
directors, officers, agents and employees. Except with respect to
a claim based on the Trustee's negligence or willful misconduct,
no recourse shall be had for any claim based on any provision of
this Agreement, the Certificates or any Receivable or assignment
thereof against the Trustee in its individual capacity, the Trustee
shall not have any personal obligation, liability or duty whatsoever
to any Certificateholder or any other Person with respect to any
such claim, and any such claim shall be asserted solely against the
Trust or any indemnitor who shall furnish indemnity as provided
in this Agreement. The Trustee shall not be accountable for the
use or application by the Seller of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any
funds paid to a Servicer in respect of the Receivables. The Seller
hereby certifies to the Trustee that the rating agency rating the
Rated Certificates is the Rating Agency, and that its address is as
set forth in Section 13.05. The Trustee may rely on the accuracy
of such certification until it receives from the Seller an Officer's
Certificate superseding such certification.
Section 11.06. Trustee May Own Certificates. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may deal with the Seller and
the Servicer in banking transactions with the same rights as it
would have if it were not Trustee, except as otherwise provided in
the definition of "Certificateholder" in Section 1.01.
Section 11.07. Trustee's Fees and Expenses. The Trustee
shall be entitled to its customary compensation as set forth on
Exhibit G to this Agreement (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by it in the execution of the
trusts created by this Agreement and in the exercise and
performance of any of the Trustee's powers and duties under this
Agreement. The Trustee shall be paid or reimbursed pursuant to
Section 5.06 upon its request for all reasonable expenses and
disbursements (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons not
regularly in its employ) incurred or made by the Trustee in
accordance with any provisions of this Agreement, except any such
expense or disbursement as may be attributable to its willful
misfeasance, negligence or bad faith. Unpaid fees and expenses
of the Trustee shall bear interest at the prime rate then in effect
plus 2%. The Seller shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred without
willful misfeasance, negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the
Trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties under this Agreement.
Additionally, the Seller, pursuant to Section 8.02, shall indemnify
the Trustee with respect to certain matters. The Trustee shall not
be required to furnish any surety bond. The provisions of this
Section 11.07 shall survive the termination of this Agreement.
Section 11.08. Eligibility Requirements for Trustee. The
Trustee shall at all times be a corporation having an office in the
same state as the location of the Corporate Trust Office as
specified in or pursuant to this Agreement; and organized and
doing business under the laws of such state or the United States of
America; authorized under such laws to exercise corporate trust
powers; having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal
or state authorities. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the
purpose of this Section 11.08, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 11.08,
the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.09.
Section 11.09. Resignation or Removal of Trustee. The
Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Seller and
each Certificateholder. Upon receiving such notice of resignation,
the Majority Certificateholders with the approval of each Rating
Agency, if any, shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.08 and shall fail to
resign after written request therefor by the Seller, or if at any time
the Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Majority Certificateholders may remove the Trustee. If the
Majority Certificateholders shall remove the Trustee under the
authority of the immediately preceding sentence, the Majority
Certificateholders with the approval of each Rating Agency, if any,
shall promptly appoint a successor Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to
the outgoing Trustee so removed and one copy to the successor
Trustee and payment of all fees and expenses owed to the outgoing
Trustee.
Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this
Section 11.09 shall not become effective until acceptance of
appointment by the successor Trustee pursuant to Section 11.10
and payment of all fees and expenses owed to the outgoing Trustee
or upon order of a court of competent jurisdiction. The Seller
shall provide notice of such resignation or removal of the Trustee
to each Rating Agency, if any.
Section 11.10. Successor Trustee. Any successor Trustee
appointed pursuant to Section 11.09 shall execute, acknowledge
and deliver to the Backup Servicer, the Servicer and to the
predecessor Trustee an instrument accepting such appointment
under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of
its predecessor under this Agreement, with like effect as if
originally named as Trustee. The predecessor Trustee shall upon
payment of its fees and expenses deliver to the successor Trustee
all documents and statements and moneys held by it under this
Agreement; and the Seller and the predecessor Trustee shall
execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties
and obligations.
No successor Trustee shall accept appointment as provided
in this Section 11.10 unless at the time of such acceptance such
successor Trustee shall be eligible pursuant to Section 11.08.
Upon acceptance of appointment by a successor Trustee
pursuant to this Section 11.10, the successor Trustee shall mail
notice of the successor of such Trustee under this Agreement to all
Holders of Certificates at their addresses as shown in the
Certificate Register and to each Rating Agency, if any.
Section 11.11. Merger or Consolidation of Trustee. Any
corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 11.08, without the
execution or filing of any instrument or any further act on the part
of any of the parties hereto; provided, further, that the Trustee
shall mail notice of such merger or consolidation to each Rating
Agency, if any, and each Certificateholder.
Section 11.12. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust or any Financed
Vehicle may at the time be located, the Backup Servicer and the
Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved
by the Trustee to act as co-trustee, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust,
and to vest in such Person, in such capacity and for the benefit of
the Certificateholders, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 11.12, such
powers, duties, obligations, rights and trusts as the Backup
Servicer and the Trustee may consider necessary or desirable. If
the Backup Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, or in
the case an Event of Backup Servicing Default shall have occurred
and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 11.08 and no notice of a
successor trustee pursuant to Section 11.10 and no notice to
Certificateholders of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 11.10.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
(a) All rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred
upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed
(whether as Trustee under this Agreement or as successor
to the Backup Servicer under this Agreement), the Trustee
shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or
any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(b) No trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(c) The Backup Servicer and the Trustee acting
jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article XI.
Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Trustee. Each such
instrument shall be filed with the Trustee and copies thereof given
to the Backup Servicer.
Any separate trustee or co-trustee may at any time appoint
the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor separate trustee or
co-trustee.
Section 11.13. Representations and Warranties of Trustee.
The Trustee makes the following representations and warranties on
which the Seller and Certificateholders rely:
(a) The Trustee is a banking association duly
organized, validly existing, and in good standing under the
laws of its place of incorporation.
(b) The Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Agreement and the Servicing
Agreement, and shall have taken all necessary action to
authorize the execution, delivery and performance by it of
this Agreement and the Servicing Agreement.
(c) This Agreement and the Servicing Agreement
shall have been duly executed and delivered by the Trustee,
and each constitutes the valid and binding obligation of the
Trustee enforceable in accordance with its terms.
(d) The execution, delivery and performance by
the Trustee of this Agreement (a) does not violate any
provision of any law governing the banking and trust
powers of the Trustee or any order, writ, judgment or
decree of any court, arbitrator, or governmental authority
applicable to the Trustee or any of its assets, (b) does not
violate any provision of the corporate charter or by-laws of
the Trustee, and (c) does not violate any provision of, or
constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on
any properties included in the Trust pursuant to the
provisions of any mortgage, indenture, contract, agreement
or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to materially
and adversely affect the Trustee's performance or ability to
perform its duties under this Agreement or the transactions
contemplated in this Agreement.
(e) The execution, delivery and performance by
the Trustee of this Agreement does not require the
authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency
regulating the banking and corporate trust activities of the
Trustee.
Section 11.14. No Bankruptcy Petition. Except with the
consent of the Majority Certificateholders, the Trustee covenants
and agrees that prior to the date which is one year and one day
after the payment in full of all securities issued by the Seller or by
the Trust it will not institute against, or join any other Person in
instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law;
provided, however, that nothing contained herein shall prohibit the
Trustee from participating in any existing bankruptcy proceeding.
ARTICLE XII
TERMINATION
Section 12.01. Termination of the Trust.
(a) The Trust and the respective obligations of
the Seller, the Backup Servicer and the Trustee created by
this Agreement (except such obligations as are hereinafter
set forth) shall terminate upon the earliest of (i) payment to
the Certificateholders of all amounts required to be paid to
them pursuant to this Agreement and the disposition of all
property held as part of the Trust Property, (ii) the
purchase as of any Distribution Date by the Seller, at its
option, of the corpus of the Trust as described in Section
12.02, (iii) the Final Scheduled Distribution Date or (iv)
subject to Section 12.01(c), 90 days after the Dissolution of
the Seller. The Seller shall promptly notify the Trustee of
any prospective termination pursuant to this Section 12.01.
(b) Notice of any prospective termination,
specifying the Distribution Date for payment of the final
distribution and requesting the surrender of the Certificates
for cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not earlier than the 15th
day and not later than the 25th day of the month next
preceding the specified Distribution Date stating (A) the
Distribution Date upon which final payment of the
Certificates shall be made and (B) the amount of any such
final payment. Surrender of the Certificates shall not be a
condition of payment of the final distribution; however,
each Certificateholder, by accepting the Certificates, hereby
agrees to indemnify and hold harmless the Trustee, the
Seller and the Certificate Registrar from and against any
and all claims arising from such failure, including but not
limited to claims by third parties claiming to be bona fide
purchasers subsequently presenting such Certificates for
payment.
(c) The Seller shall not voluntarily take any
action that would cause it to cease being deemed a general
partner of the Trust if the Trust were deemed a limited
partnership formed under the Delaware Revised Uniform
Limited Partnership Act and the Residual Interest were
deemed to represent the sole general partnership interest in
such a partnership.
In the event of the Dissolution of the Seller or any
action that would cause the Seller to cease being deemed a
general partner of the Trust if the Trust were deemed a
limited partnership formed under the Delaware Revised
Uniform Limited Partnership Act and the Residual Interest
were deemed to represent the sole general partnership
interest in such a partnership, the Trust shall terminate 90
days after the date of such event and its assets liquidated in
accordance with Section 12.01(d) unless:
A. The Majority Certificateholders inform the
Trustee in writing before the end of such 90 day period that
they disapprove of the liquidation of the assets of the Trust;
and
B. The Seller and the Trustee shall receive an
Opinion of Counsel from independent counsel to the effect
that the continuation of the Trust shall not cause the Trust
to be treated as an association taxable as a corporation for
federal income tax purposes.
During any period that the Certificates are
outstanding, the Seller agrees that it shall not voluntarily
take action that will cause the Dissolution of the Seller.
If the Trust will be terminated and its assets
liquidated in accordance with this Section 12.01(c), the
Trustee shall act as liquidator of the assets of the Trust, but
shall continue to have all the powers, rights and duties of
the Trustee hereunder, under the Servicing Agreement and
the Purchase Agreement until the disposition of the assets
of the Trust and the final distribution to the
Certificateholders, the Trustee and the Backup Servicer of
all amounts required to be paid to them pursuant to this
Agreement.
(d) Upon receipt by the Trustee from the Seller
of notice of any prospective termination of the Trust
pursuant to Section 12.01(a)(iii) or (iv), the Trustee shall,
subject to the direction of the Majority Certificateholders
(provided that, if the Majority Certificateholders shall not
have provided such direction to the Trustee within 30 days
of the Trustee having sent a written request for such
direction to the Certificateholders, the Trustee shall
proceed without such direction) sell the remaining assets of
the Trust, if any, at public or private sale, in a
commercially reasonable manner and on commercially
reasonable terms. The Seller agrees to cooperate with the
Trustee to effect any such sale, including by executing such
instruments of conveyance or assignment as shall be
necessary or required by the purchaser. Proceeds of sale,
net of expenses, shall be treated as collections on the assets
of the Trust and shall be deposited into the Collection
Account. On the Distribution Date specified for final
payment, the Trustee shall cause to be distributed to
Certificateholders and the Seller amounts distributable on
such Distribution Date pursuant to Section 5.06 and Section
5.07.
Section 12.02. Optional Purchase of All Receivables. The
Seller shall have the option to purchase the corpus of the Trust on
the Distribution Date following the last day of any Collection
Period as of which the Pool Balance as a percentage of the
Original Pool Balance shall be less than or equal to the Optional
Purchase Percentage. To exercise such option, the Seller shall (i)
give notice to the Trustee and the Certificateholders not less than
30 days prior to the Distribution Date on which such purchase is
to be effected and (ii) on or before such Distribution Date, deposit
in the Collection Account an amount equal to the Purchase Amount
for the Receivables and the appraisal value of any other property
held by the Trust. After payment of such amounts, the Seller shall
succeed to all interests in and to the Trust Property.
Section 12.03. Notice. The Trustee shall give notice of
termination of the Trust to the Seller and each Rating Agency.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment. (a) This Agreement may be
amended by written instrument executed by the Seller, the Backup
Servicer and the Trustee, without the consent of any of the
Certificateholders if the Certificates are at such time rated by at
least one Rating Agency, (i) to cure any ambiguity, to correct or
supplement any provisions in this Agreement, (ii) to add, change
or eliminate any other provisions with respect to matters or
questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; or (iii) to add
or amend any provision therein in connection with permitting
transfers of the Certificates or to add or provide for any credit
enhancement for the Certificates; provided, however, that any such
action described in clause (ii) shall not adversely affect in any
material respect the interests of the Certificateholders and
provided, further, that in connection with any such amendment
delivery to the Trustee of a letter from each Rating Agency to the
effect that such amendment will not cause the then-current rating
on the Rated Certificates to be qualified, reduced or withdrawn
shall constitute conclusive evidence that such amendment does not
adversely affect in any material respect the interests of the
Certificateholders.
(b) This Agreement may also be amended from time to
time or the provisions hereof waived from time to time by a
written instrument executed by the Seller, the Backup Servicer and
the Trustee with the consent of the Holders of the
Certificateholders affected thereby (which consent of any Holder
of a Certificate given pursuant to this Section or pursuant to any
other provision of the Agreement shall be conclusive and binding
on such Holder and on all future Holders of such Certificate and
of any Certificate issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent
is made upon the Certificate) evidencing not less than 51% of the
Voting Interests of all the affected Certificates for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement, or of modifying in any
manner the rights of Certificateholders; provided, however, that no
such amendment or waiver shall, without the consent of the
Holders of all Certificates affected thereby then outstanding, (a)
increase or reduce in any manner the amount of, or accelerate or
delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made on any Certificate
or (b) reduce the aforesaid percentage of the Voting Interests of
the Certificates required to consent to any such amendment.
(c) Prior to any such amendment, the Trustee shall furnish
written notification of the substance of the proposed amendment to
each Rating Agency and each Rating Agency shall provide written
confirmation to the Trustee that such amendment will have no
adverse effect on the ratings assigned to the Rated Certificates.
Any amendment which affects the Trustee's own rights, duties or
immunities under the Agreement or otherwise shall not be effective
to such extent unless the Trustee shall have joined thereto.
(d) Promptly after the execution of any such amendment
or consent, the Trustee shall furnish a copy of such amendment or
consent to each Certificateholder and each Rating Agency. It shall
not be necessary for the consent of Certificateholders pursuant to
this Section 13.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of Certificateholders provided for
in this Agreement) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
(e) Prior to the execution of any amendment to this
Agreement, the Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement.
Section 13.02. Protection of Title to Trust.
(a) The Seller shall execute and file such
financing statements and cause to be executed and filed
such continuation statements, all in such manner and in
such places as may be required by law fully to preserve,
maintain and protect the interest of the Certificateholders
and the Trustee in the Receivables and the other assets of
the Trust Property and in the proceeds thereof. The Seller
shall deliver (or cause to be delivered) to the Trustee
file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such
filing.
(b) The Seller shall not change its name, identity
or corporate structure in any manner that would, could or
might make any financing statement or continuation
statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of SECS 9-402(7) of
the UCC, unless it shall have given the Trustee at least
thirty (30) days' prior written notice thereof and shall have
promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) The Seller shall give the Trustee at least 30
days' prior written notice of any relocation of its chief
executive office. If, as a result of such relocation, the
applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or
continuation statement or of any new financing statement,
it shall promptly file any such amendment and shall give
the amendment with the recorder's file stamp thereon to the
Custodian promptly upon receipt thereof.
Section 13.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or commence any proceeding in
any court for a partition or winding up of the Trust, nor otherwise
affect the rights, obligations and liabilities of the parties to this
Agreement or any of them.
Nothing in this Agreement set forth, or contained in the
terms of the Certificates, shall be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability
to any third Person by reason of any action taken pursuant to any
provision of this Agreement.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any
suit, action or proceeding in equity or at law upon or under or
with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a written notice of default and of
the continuance thereof, and unless also the Holders of Certificates
evidencing not less than 20% of the Voting Interests thereof shall
have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee under this
Agreement and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 30
days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and during such 30-day period no
request or waiver inconsistent with such written request has been
given to the Trustee pursuant to this Section or Section 10.04; no
one or more Holders shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of the Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to
enforce any right under this Agreement except in the manner
provided in this Agreement and for the equal, ratable and common
benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.03, each
Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 13.04. Governing Law. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD OR
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS OF
SUCH STATE.
Section 13.05. Notices. All demands, notices and
communications upon or to the Seller, the Backup Servicer, the
Trustee under this Agreement shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, and
shall be deemed to have been duly given upon receipt:
(a) in the case of the Seller, to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Aegis Auto Funding Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as shall be designated by the Seller
in a written notice to the Trustee;
(b) in the case of the Backup Servicer, to
Norwest Bank Minnesota, National
Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services--Asset
Backed Administration
or at such other address as shall be designated by the
Backup Servicer in a written notice to the Seller;
(c) in the case of the Trustee or Custodian, to
Norwest Bank Minnesota, National
Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services--Asset
Backed Administration
or at such other address as shall be designated by the
Trustee in a written notice to the Seller;
(d) in the case of any Rating Agency, such
address as shall be designated by such Rating Agency in a
written notice to the Seller and the Trustee.
Any notice or other communication required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register
(with copies thereof to such other Person(s) as such Certificateholder shall
have requested in writing, the address of such other Person(s) to receive
such copies also to be reflected in the Certificate Register), and shall be
deemed to have been given upon receipt.
Section 13.06. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
Section 13.07. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 8.03, this
Agreement may not be assigned by the Seller without the prior written
consent of the Trustee and the Holders of Certificates evidencing not less
than 66% of the Voting Interests thereof.
Section 13.08. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the
Trust. The interests represented by the Certificates shall be nonassessable
for any losses or expenses of the Trust or for any reason whatsoever.
Section 13.09. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and all of which counterparts shall
constitute but one and the same instrument.
Section 13.10. Limited Recourse to Seller. The parties hereto
agree that the obligations of the Seller hereunder, including, without
limitation, the obligation of the Seller in respect of indemnification
pursuant to Sections 3.06, 8.02 and 11.07 in respect of repurchases or
substitutions of Receivables upon breach of representations and warranties
pursuant to Section 3.02, and in respect of fees, costs and expenses
pursuant to Sections 3.06, 4.04 and 4.05, are payable solely from the
Seller's interests in the Trust Property and that no party may look to any
other property or assets of the Seller in respect of such obligations.
IN WITNESS WHEREOF, the Seller, the Backup Servicer and the
Trustee have caused this Pooling and Servicing Agreement to be duly
executed by their respective officers as of the day and year first above
written.
AEGIS AUTO FUNDING CORP.,
as Seller
By
▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
NORWEST BANK MINNESOTA,
NATIONAL
ASSOCIATION, as Trustee
By
▇▇▇▇▇▇▇ ▇▇▇▇▇
Corporate Trust Officer
NORWEST BANK MINNESOTA,
NATIONAL
ASSOCIATION, as Backup Servicer
By
▇▇▇▇▇▇▇ ▇▇▇▇▇
Corporate Trust Officer
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"),OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE
UNITED STATES OR ANY FOREIGN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS CERTIFICATE THE HOLDER OF THIS
CERTIFICATE IS DEEMED TO REPRESENT TO THE SELLER AND
THE TRUSTEE (i) THAT IT IS AN INSTITUTIONAL INVESTOR
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED
UNDER THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR") AND THAT IT IS ACQUIRING THIS
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS THE HOLDER IS A BANK
ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF OR
(II) THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS
ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT (AND
NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED
INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CERTIFICATE
MAY BE MADE BY ANY PERSON UNLESS EITHER (i) SUCH
SALE, PLEDGE OR OTHER TRANSFER IS MADE TO THE SELLER,
(ii) SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT EXECUTES A
CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN
THE AGREEMENT, TO THE EFFECT THAT IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACTING FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO
ARE INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE
HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY), (iii)
SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH
SALE, PLEDGE OR OTHER TRANSFER IS MADE TO A PERSON
WHOM THE ISSUER REASONABLY BELIEVES AFTER DUE
INQUIRY IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A), ACTING FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO
ARE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE
IS GIVEN THAT THE SALE, PLEDGE OR TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (iv) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A
TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN WHICH CASE (A)
THE TRUSTEE SHALL REQUIRE THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY
TO THE TRUSTEE AND THE SELLER IN WRITING THE FACTS
SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION
SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE SELLER, AND (B) THE TRUSTEE SHALL
REQUIRE A WRITTEN OPINION OF COUNSEL (WHICH SHALL
NOT BE AT THE EXPENSE OF THE SELLER OR THE TRUSTEE)
SATISFACTORY TO THE SELLER AND THE TRUSTEE TO THE
EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE
SECURITIES ACT. NO SALE, PLEDGE OR OTHER TRANSFER
MAY BE MADE TO ANY ONE PERSON FOR CERTIFICATES WITH
A FACE AMOUNT OF LESS THAN $250,000 AND, IN THE CASE
OF ANY PERSON ACTING ON BEHALF OF ONE OR MORE THIRD
PARTIES (OTHER THAN A BANK (AS DEFINED IN SECTION
3(a)(2) OF THE SECURITIES ACT) ACTING IN ITS FIDUCIARY
CAPACITY), FOR CERTIFICATES WITH A FACE AMOUNT OF
LESS THAN $250,000 FOR EACH SUCH THIRD PARTY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
AEGIS AUTO RECEIVABLES TRUST 1996-A
AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATES
PPN:
CUSIP:
NUMBER R-1 Original
Certificate Balance:
Pass-Through Rate: 9.00%
$_______________________
Final Scheduled Distribution Date: May 20, 2002
Initial Certificate Balance of all Certificates: $
THIS CERTIFIES THAT ___________________ is the registered
owner of this _________ DOLLARS Certificate. This Certificate
evidences a fractional undivided interest in the Aegis Auto Receivables
Trust 1996-A (the "Trust") (excluding the Residual Interest in the Trust),
formed by Aegis Auto Funding Corp., a Delaware corporation (the
"Seller"). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of September 1, 1996 (the "Agreement") among the
Seller, Norwest Bank Minnesota, National Association, as backup servicer
(the "Backup Servicer"), and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"). The property of the Trust
includes, among other assets, a pool of motor vehicle retail installment
sale contracts secured by new and used automobiles and light-duty trucks.
(This Certificate does not represent an interest in or obligation of the
Seller or any of the respective Affiliates thereof, except to the extent
described below.) A summary of certain of the pertinent provisions of the
Agreement is set forth below. To the extent not otherwise defined herein,
the capitalized terms used herein have the meanings assigned to them in
the Agreement. The Certificate Balance of this Certificate will be
decreased by the payments on this Certificate in respect of principal as
described in the Agreement. Accordingly, following the initial issuance of
the Certificates, the Certificate Balance of this Certificate will over time
be less than the original denomination shown above. Anyone acquiring
this Certificate may ascertain its current Certificate Balance by inquiry of
the Trustee.
This Certificate is one of the duly authorized Certificates
designated as "Automobile Receivable Pass-Through Certificates." This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. The property of the Trust includes, without limitation,
a pool of motor vehicle retail installment sale contracts (the
"Receivables") acquired on the Closing Date (as defined in the
Agreement) secured by new and used automobiles and light-duty trucks
(the "Financed Vehicles"), all moneys due thereunder after the Cutoff
Date (as defined in the Agreement), proceeds from claims on certain
insurance policies and certain other rights under the Agreement, all right,
title and interest of the Seller in and to the Purchase Agreement and any
and all proceeds of the foregoing.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and immunities of the Trustee. Copies of the
Agreement and all amendments thereto will be provided to any
Certificateholder, at its expense, upon a written request to the Trustee.
Under the Agreement, there will be distributed on the 20th day of
each month or, if such 20th day is not a Business Day, the next Business
Day (the "Distribution Date"), commencing on October 21, 1996, to the
person in whose name this Certificate is registered at the close of business
on the last day of the Collection Period preceding a Distribution Date or
termination of the Trust (the "Record Date") an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the holders of all Certificates.
All payments to Certificateholders shall be made on each
Distribution Date to each Certificateholder of record on the related Record
Date by check, or, if requested by a Certificateholder holding Certificates
with Original Certificate Balances in aggregate in excess of $1,000,000,
by wire transfer to the account designated in writing by such Holder in the
form of Exhibit F to the Agreement (or such other account as such
Certificateholder may designate in writing) delivered to the Trustee prior
to the Determination Date, in immediately available funds. Except as
otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution, which notice shall request
that the Certificateholder present and surrender this Certificate at the
office or agency maintained for that purpose by the Trustee in
Minneapolis, Minnesota. Surrender of this Certificate shall not be a
condition of payment of the final distribution; however, the Holder, by
accepting this Certificate, hereby agrees to indemnify and hold harmless
the Trustee, the Seller and the Certificate Registrar from and against any
and all claims arising from such failure to present and surrender this
Certificate, including but not limited to claims by third parties claiming
to be bona fide purchasers.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
The Certificates do not represent a recourse obligation of, or an
interest in, the Seller, the Backup Servicer, the Trustee or any Affiliate
of any of them. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Receivables, all as more
specifically set forth in the Agreement. A copy of the Agreement may be
examined during normal business hours at the principal office of the
Seller, and at such other places, if any, designated by the Seller, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations
of the Seller and the rights of the Certificateholders under the Agreement
at any time by the Seller and the Trustee with the consent of the Holders
of the Certificates affected thereby evidencing not less than 51% of the
Voting Interests of all affected Certificates. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder
and on all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The
Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Trustee in its capacity as
Certificate Registrar, or by any successor Certificate Registrar, in
Minneapolis, Minnesota, or such other office of the Trustee maintained
for such purpose and designated by the Trustee in writing, accompanied
by a written instrument of transfer in form satisfactory to the Trustee and
the Certificate Registrar duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The Certificates are initially issuable only as registered Certificates
without coupons in denominations of $250,000 and integral multiples of
$1,000 in excess thereof, except that one Certificate may be issued in a
different denomination. As provided in the Agreement and subject to
certain limitations set forth therein, Certificates are exchangeable for new
Certificates evidencing the same aggregate denomination, as requested by
the Holder surrendering the same. No service charge will be made to the
Holder for any such registration of transfer or exchange, but the Trustee
may require payment of a sum sufficient to cover any tax or governmental
charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the Trustee
or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Trustee, the Certificate Registrar, nor any such agent shall be affected
by any notice to the contrary.
The Trust created by the Agreement shall terminate upon the
earliest of (i) payment to the Certificateholders of all amounts required to
be paid to them pursuant to the Agreement and the disposition of all
property held as part of the Trust Property, (ii) May 20, 2002 or
(iii) subject to the Agreement, 90 days after the Dissolution of the Seller.
The Seller may, at its option, purchase the corpus of the Trust, in whole,
at a price specified in the Agreement, and such purchase will effect early
retirement of the Certificates; however, such right of purchase is
exercisable only on a Distribution Date following the last day of any
Collection Period as of which the Pool Balance is less than or equal to
10% of the Original Pool Balance.
IN WITNESS WHEREOF, the Trustee, not in
its individualcapacity but on behalf of the Trust, has caused this
Certificate to be duly executed.
AEGIS AUTO
RECEIVABLES TRUST
1996-A
By: NORWEST BANK
MINNESOTA,
NATIONAL
ASSOCIATION, as Trustee
By
Name:
Title:
This is one of the Certificates referred to
in the within-mentioned Agreement.
NORWEST BANK
MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By
Name:
Title:
Dated as of
_________________, 199_
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns
and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address, including postal zip code, of
assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
*
Name:
_______________
*NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Certificate in every
particular, without alteration, enlargement or any change whatever.
EXHIBIT B
TRUSTEE'S STATEMENT TO CERTIFICATEHOLDERS
Aegis Auto Receivables Trust 1996-A
Automobile Receivable Pass-Through Certificates
Distribution Date:
Last Day of Collection Period:
I. COLLECTIONS INTEREST PRINCIPAL
TOTALS
Scheduled Payments
Full & Partial Prepayments
Recoveries
Risk Default Insurance Proceeds
Receivable Repurchased by Seller
Miscellaneous Servicer Collections
Available Interest Distribution Amount
Available Principal Distribution Amount
Total Available Distribution Amount
Reinvestment Income on Collection Account
Withdrawals from
Reserve Fund
Total Amount Available
II. DISTRIBUTIONS
Backup Servicer Fee
Servicing Fee
Trustee and Custodian Fees
Interest Distribution
Interest Carryover Shortfall
Principal Distribution
Principal Carryover Shortfall
Deposits to Reserve Fund
Releases to Seller
Total Funds Distributed
III. CERTIFICATE BALANCE
Original Aggregate Certificate Balance
Beginning Aggregate Certificate Balance
Ending Aggregate Certificate Balance
Interest Carryover Shortfall
Principal Carryover Shortfall
Certificate Factor
IV. POOL BALANCE INFORMATION
Original Pool Balance:
Beginning of Period
End of Period
Pool Balance
Pool Factor
Weighted Average Coupon (WAC)
Weighted Average Remaining Maturity (WAM) (in months)
Remaining Number of Receivables
V. RESERVE FUND
Amount
Beginning Balance
Plus: Deposits
Plus: Reinvestment Income
Withdrawals to Certificateholders
Withdrawals for expenses
Released to Seller
Ending Balance
VI. RECEIVABLES REPURCHASED/SUBSTITUTED BY SELLER
Number of Receivables Repurchased
Principal Amount
Number of Receivables Substituted
Principal Amount
VII. DELINQUENCY INFORMATION*
# of Principal % of
Contracts Balance Pool
Balance
30-59 Days Delinquent
60-90 days Delinquent
90 Days or more Delinquent
*Excluding Liquidated and Defaulted Receivables
VIII. REPOSSESSION INFORMATION Current Period
Cumulative
Number of Receivables as to which Vehicles have been
Repossessed (and not yet liquidated)
Principal Balances of Receivables relating to Vehicles
which have been Repossessed (and not yet liquidated)
IX. LIQUIDATED AND DEFAULTED RECEIVABLES Current Period
Cumulative
Number of Liquidated Receivables
Principal Balances of Liquidated Receivables*
(Prior to Liquidation)
Number of Defaulted Receivables**
Principal Balances of Defaulted Receivables
Total Principal Balance of Liquidated
and Defaulted Receivables
* Excludes receivables previously characterized
as Defaulted Receivables
**Refers to Receivables that have become
180 days delinquent and are not Liquidated Receivables
X. RECOVERIES Current Period
Cumulative
Liquidation Proceeds
Rebate of Servicer Cancelled Warranty Contracts
VSI Physical Damage/Loss Insurance Proceeds
Consumer Insurance
Total Recoveries
XI. RETENTION AMOUNT
Beginning Balance
Plus: Quarterly Reserve Loss Deficiency
Less: Claims approved
Less: Quarterly Reserve Loss Surplus
Ending Balance
XII. RISK DEFAULT INSURANCE PROCEEDS Current Period
Cumulative
Risk Default Insurance Proceeds
XIII. NET LOSSES Current Period
Cumulative
Principal Balance of Liquidated and
Defaulted Receivables
Less: Recoveries
Less: Risk Default Insurance Proceeds
Net Losses
XIV. INSURANCE CLAIMS
Current Period
Cumulative
Number of Risk Default Insurance Claims
Amount of Risk Default Insurance Claims
Number of VSI Physical Damage/Loss Insurance Claims
Amount of VSI Physical Damage/Loss Insurance Claims
Number of Risk Default Insurance Claims Rejected
Principal Balance of Receivables Rejected
EXHIBIT C
SCHEDULE OF RECEIVABLES
Delivered to the Trustee on the Closing Date
(See Attached)
EXHIBIT D
LOCATION OF SERVICER FILES
American Lenders Facilities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT E
Aegis Auto Receivables Trust 1996-A
AUTO RECEIVABLES PASS-THROUGH CERTIFICATES
RECEIVABLE CHARACTERISTICS
As of September 24, 1996 (Cutoff Date)
Remaining Term % Outstanding
Outstanding
To Maturity Principal Balance
Principal Balance
31-36 2.70%
475,356.22
37-42 6.39%
1,122,707.24
43-48 16.22%
2,848,514.56
49-54 29.53%
5,185,458.99
55-60 45.16%
7,929,334.60
Weighted Average Remaining Term to Maturity 54.4 months
Annual Percentage Rate
Weighted Average Annual Percentage Rate 20.06%
% Outstanding
Outstanding
Model Year Principal Balance
Principal Balance
1991 2.67%
468,439.22
1992 6.52%
1,144,501.30
1993 15.76%
2,768,426.74
1994 29.82%
5,236,729.50
1995 33.85%
5,944,811.85
1996 11.00%
1,932,017.31
1997 0.38%
66,445.69
% Outstanding
Outstanding
New/Used Collateral Principal Balance
Principal Balance
New 5.57%
977,456.35
Used 94.43%
16,583,915.26
Outstanding
Principal Balance
Largest 36,505.52
Smallest 3,911.50
Average 12,402.10
EXHIBIT F
WIRING INSTRUCTIONS FORM
______________, 19____
Norwest Bank Minnesota, National Association
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Automobile Receivable Pass-Through Certificates
Issued by Aegis Automobile Receivables Trust
1996-A
Dear Sirs:
In connection with the sale of the above-captioned Certificate by
to
("Transferee") you, as Trustee with respect to the related Certificates, are
instructed to make all remittances to Transferee as Certificateholder as of
, 19 and you are directed to send all notices to the appropriate
party at the address set forth on Schedule 1 hereto. You are further
instructed to treat the Transferee as the record holder for purposes of the
, 199__ Distribution Date.
[Transferee]
By
Title:
Acknowledged
[Seller]
By
Title:
EXHIBIT G
FEE SCHEDULE
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
CORPORATE TRUST DEPARTMENT
SCHEDULE OF FEES
AEGIS AUTO RECEIVABLES TRUST 1996-A
I. Trustee and Custodian Fee:
one-twelfth of the product of (i) 0.03% per annum and (ii) the
aggregate Certificate Balance as of the close of business on the
preceding Distribution Date or, in the case of the first Distribution
Date, the original aggregate Certificate Balance.
II. Monthly Backup Servicer Fee:
one-twelfth of the product of (i) 0.02% per annum and (ii) the
outstanding Pool Balance as of the first day of the preceding
Collection Period or, in the case of the first Distribution Date, as
of the Closing Date.
EXHIBIT H
RISK DEFAULT INSURANCE POLICY
Issuer: The Connecticut Indemnity Company
Policy Name: Secured Value Insurance Policy
Policy No.: ZSC __________
Date: September , 1996
Named Insured: Norwest Bank Minnesota, N.A., as Trustee for Aegis Receivables
Trust 1996-A
Endorsements: Exhibit A, Ed. 8/30/95 & Exhibit B, Ed. 11/7/95
and Exhibit C
EXHIBIT I
VSI INSURANCE POLICY
1. Issuer: Guaranty National Insurance Company
Policy Name: Lenders Comprehensive Single Interest Insurance Policy
Policy No.: ZYG 1500103
Date: February 1, 1994
Named Insured: Aegis Capital Markets
Endorsements: 42621-0 (10/93), 42623-0 (10/93), 42624-0 (10/93),
42627-0 (10/93), 42629-0 (10/93), 42630-0 (10/93),
41510-0 (6/90), Nos. 7, 8, Coverage Endorsements dated
3/23/94,
9/08/94 and 9/26/94, Nos. 16-24, 30-31
EXHIBIT J
FORM OF TRANSFEREE LETTER
(Rule 144A Transfer)
[Date]
Aegis Auto Funding Corp.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Norwest Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services Asset Backed Administration
Aegis Auto Receivables Trust 1996-A
Automobile Receivable Pass-Through Certificates
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase one or
more Automobile Receivable Pass-Through Certificates, (the
"Certificates") issued by Aegis Auto Receivables Trust 1996-A (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated
as of September 1, 1996 (the "Pooling and Servicing Agreement") by and
among Aegis Auto Funding Corp., a Delaware corporation, as seller
("Seller"), Norwest Bank Minnesota, National Association, as Backup
Servicer, and Norwest Bank Minnesota, National Association, as Trustee.
Unless the context or use indicates another or different meaning, each
capitalized term used herein and not otherwise defined herein shall have
the meaning ascribed to it in the Pooling and Servicing Agreement.
1. The undersigned hereby certifies that, as indicated below,
the undersigned is the President, Chief Executive/Financial Officer, Senior
Vice President or other executive officer or investment officer of the
Purchaser.
2. In connection with the purchase by the Purchaser of the
Certificates, the undersigned hereby certifies to you that the Purchaser is
a "qualified institutional buyer" as defined in Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as amended, because:
[ ] (a) The Purchaser owned or invested on a discretionary basis $100
million in securities (except for the excluded securities referred to
below) as of the end of the Purchaser's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and
the Purchaser satisfies the criteria in the subcategory marked below
(check one):
[ ] Insurance Company. The Purchaser is an insurance
company whose primary and predominant business activity
is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of
Columbia.
[ ] Investment Company. The Purchaser is (i) an investment
company registered under the Investment Company Act of
1940, as amended (the "Investment Company Act") or (ii)
a business development company as defined in Section
2(a)(48) of that Act.
[ ] Small Business Investment Company. The Purchaser is a
Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
[ ] Corporation, Etc. The Purchaser is an organization
described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, a corporation (other than a
bank, savings and loan association or similar institution),
partnership or Massachusetts or similar business trust.
[ ] State or Local Plan. The Purchaser is a plan established
and maintained by a State or its political subdivisions, or
any agency or instrumentality of a State or its political
subdivisions, for the benefit of its employees.
[ ] ERISA Plan. The Purchaser is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
[ ] Trust Fund. The Purchaser is a trust fund whose trustee is
a bank or trust company and whose participants are
exclusively plans established and maintained by a State or
its political subdivision, or any agency or instrumentality
of a State or its political subdivisions, for the benefit of its
employees.
[ ] Business Development Company. The Purchaser is a
business development company as defined in Section
202(a)(22) of the Investment Adviser Act of 1940.
[ ] Investment Advisor. The Purchaser is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
[ ] (b) The Purchaser is a dealer registered pursuant too Section 15
of the Exchange Act, acting for its own account or the accounts of
other qualified institutional buyers, that in the aggregate owns and
invests on a discretionary basis at least $10 million of securities of
issuers that are not affiliated with the dealer, provided that
securities constituting the whole or a part of an unsold allotment
to or subscription by a dealer as a participant in a public offering
shall not be deemed to be owned such dealer.
[ ] (c) The Purchaser is a dealer registered pursuant to Section 15 of
the Exchange Act acting in a riskless principal transaction on
behalf of a qualified institutional buyer.
[ ] (d) The Purchaser is an investment company registered under the
Investment Company Act, acting for its own account or for the
accounts of other qualified institutional buyers, that is part of a
family of investment companies which own in the aggregate at
least $100 million in securities of issuers other than issuers that are
affiliated with the investment company or are part of such family
of investment companies. "Family of investment companies"
means any two or more investment companies registered under the
Investment Company Act, except for a unit investment trust whose
assets consist solely of shares of one or more registered investment
companies, that have the same investment adviser (or, in the case
of unit investment trusts, the same depositor), provided that, for
purposes of this section:
(A) each series of a series company (as defined in Rule
18f-2 under the Investment Company Act (17 CFR
270.18f-2)) shall be deemed to be a separate investment
company; and
(B) investment companies shall be deemed to have the
same adviser (or depositor) if their advisers (or depositors)
are majority-owned subsidiaries of the same parent, or if
on investment company's adviser (or depositor) is a
majority-owned subsidiary of the other investment
company's adviser (or depositor).
[ ] (e) The Purchaser is an entity, all of the equity owners of which
are qualified institutional buyers, acting for its own account or the
accounts of other qualified institutional buyers.
[ ] (f) The Purchaser is a bank as defined in Section 3(a)(2) of the
Act, any savings and loan association or other institution as
referenced in Section 3(a)(5)(A) of the Act, or any foreign bank or
savings and loan association or equivalent institution, acting for its
own account or the accounts of other qualified institutional buyers,
that in the aggregate owns and invests on a discretionary basis at
least $100 million in securities of issuers that are not affiliated
with it and that has an audited net worth of at least $25 million ad
demonstrated in its latest annual financial statements, as of a date
not more than 16 months preceding the date of sale under the Rule
in the case of a U.S. bank or savings and loan association, and not
more than 18 months preceding such date of sale for a foreign
bank or savings and loan association or equivalent institution.
The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Purchaser, (ii) securities that are part
of an unsold allotment to or subscription by the Purchaser (if the
Purchaser is a dealer), (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
For purposes of determining the aggregate amount of securities
owned or invested on a discretionary basis by the Purchaser, the
Purchaser used the cost of such securities to the Purchaser and did not
include any of the securities referred to in the preceding paragraph.
Further, in determining such aggregate amount, the Purchaser may
have included securities owned by subsidiaries of the Purchaser, but only
if such subsidiaries are consolidated with the Purchaser in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
the Purchaser's direction. However, such securities were not included if
the Purchaser is a majority-owned, consolidated subsidiary of another
enterprise and the Purchaser is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
3. The Purchaser certifies and acknowledges that it is familiar
with Rule 144A and understands that you and your customers (if you act
as a broker for one or more customers) are relying on the statements made
therein.
4. The Purchaser certifies that the Purchaser is purchasing the
Certificates in the capacity marked below (check one):
[ ] The Purchaser certifies that the Purchaser is purchasing the
Certificates for its own account only; or
[ ] The Purchaser certifies that the Purchaser is purchasing the
Certificates for the account of [one] [specify number:] other
qualified institutional buyer(s), [each of] which is a "qualified
institutional buyer." (Draw a line through inapplicable words and
brackets.)
5. The Purchaser certifies that, to the extent it has requested
same, it has received from the Seller the information that satisfies the
requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A
Information").
6. The Purchaser certifies that it will comply with all
applicable federal and state securities laws in connection with any
subsequent resale by the Purchaser of the Certificates. The Purchaser
acknowledges that no Certificates may be exchanged for any new
Certificates having an initial principal balance of less than $250,000.
7. The Purchaser understands and acknowledges that the
Certificates have not been and will not be registered under the Securities
Act of 1933, as amended, or any state securities laws and may be resold
only if (a) the Certificates are registered pursuant to the provisions of the
Securities Act of 1933, as amended, and such state securities laws, or (b)
if an exemption from such registration is available. The Purchaser
understands and acknowledges that the Seller is not required to register the
Certificates and that any transfer must comply with Section 7.03 of the
Agreement. The Trustee is not obligated to provide Rule 144A
Information.
8. The Purchaser understands that there is no market, nor is
there any assurance that a market will develop, for the Certificates and
that the Seller does not have any obligation to make or facilitate any such
market (or to otherwise repurchase the Certificates from the Purchaser)
under any circumstances.
9. The Purchaser has consulted with its own legal counsel,
independent accountants and financial advisors to the extent it deems
necessary regarding the tax consequences to it of ownership of the
Certificates, is aware that its taxable income with respect to the
Certificates in any accounting period may not correspond to the cash flow
(if any) from the Certificates for such period, and is not purchasing the
Certificates in reliance on any representations of the Seller or its counsel
with respect to tax matters.
10. The Purchaser hereby further agrees to be bound by all the
terms and conditions of the Certificates as provided in the Pooling and
Servicing Agreement.
11. If the Purchaser sells any of the Certificates, the Purchaser
will obtain from any subsequent purchaser the same representations
contained in this Letter.
Very truly yours,
[PURCHASER]
By
Name
Title
EXHIBIT K
FORM OF TRANSFEREE LETTER
(Non-Rule 144A Transfer)
[Date]
Aegis Auto Funding Corp.
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Norwest Bank Minnesota, National Association
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Attention: Corporate Trust Services Asset Backed Administration
Aegis Auto Receivables Trust 1996-A
Automobile Receivable Pass-Through Certificates
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase certain
Automobile Receivable Certificates (the "Certificates") issued by Aegis
Auto Receivables Trust 1996-A (the "Trust) pursuant to a Pooling and
Servicing Agreement dated as of September 1, 1996 (the "Pooling and
Servicing Agreement"), among Aegis Auto Funding Corp., as Seller,
Norwest Bank Minnesota, National Association, as Backup Servicer, and
Norwest Bank Minnesota, National Association as Trustee. Unless the
context or use indicates another or different meaning, each capitalized
term used herein and not otherwise defined herein shall have the meaning
ascribed to it in the Pooling and Servicing Agreement.
The Purchaser represents and warrants that:
(a) Information. The Purchaser acknowledges that it has made
such investigation as the Purchaser deems necessary to evaluate the merits
and risks involved with an investment in the Certificates, and has had an
opportunity to meet with officers and employees of the Seller and to ask
questions and receive answers regarding an investment in the Certificates
and has asked any question he desired to ask and has received answers
with respect to such questions to the full satisfaction of the Purchaser and
has relied exclusively on the information and information discussed at
such meeting.
(b) No Reliance on Other Purchasers. In making its investment
decision with respect to subscribing for the Certificates, the Purchaser has
not relied upon any statement, representation or advice of any other
Purchaser of the Certificates.
(c) Purchase for Investment. The Purchaser is purchasing the
Certificates without a view to any distribution, assignment, resale or other
disposition of the Certificates in any manner which would violate the
Securities Act of 1933, as amended (the "Securities Act"), or applicable
state securities or "Blue Sky" laws, subject, nevertheless, to the
understanding that the disposition of the Purchaser's property shall at all
times be and remain within the Purchaser's control, and the Certificates
are being purchased solely for the Purchaser's own account for investment
purposes only and not for the account of any other person.
(d) Institutional Accredited Investor. The Purchaser is an
institutional "accredited investor" as defined in Rule 501 under the
Securities Act as follows (check one):
( ) A bank as defined in Section 3(a)(2) of the
Securities Act, whether acting in its individual or fiduciary
capacity;
( ) A savings and loan association or other institution
as defined in Section 3(a)(5)(A) of the Securities Act, whether
acting in its individual or fiduciary capacity;
( ) A broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934;
( ) An insurance company as defined in Section 2(13)
of the Securities Act;
( ) An investment company registered under the
Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of that Act;
( ) A Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958;
( ) An employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary
(as defined in Section 3(21) of ERISA) which is a bank, savings
and loan association, insurance company or registered investment
advisor, or if the plan has total assets in excess of $5,000,000 or,
if a self-directed plan, with investment decisions made solely by
accredited investors;
( ) A plan established or maintained by a state, its
political subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees, if
such plan has total assets in excess of $5,000,000;
( ) A private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940;
( ) An organization described in Section 501(c)(3) of
the Internal Revenue Code, corporation, Massachusetts or similar
business trust or partnership, not formed for the specific purpose
of acquiring the securities offered, with total assets in excess of
$5,000,000;
( ) A trust, with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a person having such
knowledge and experience in financial and business matters to be
capable of evaluating the merits and risks of an investment in the
Certificates; or
( ) An entity in which all of the equity owners fall
within one of the foregoing categories of "accredited investors."
(e) Exempt Offering. The Purchaser understands that the
Certificates are not being registered under the Securities Act or any state
securities or "Blue Sky" laws and are being sold in reliance on exemptions
from the registration requirements of the Securities Act and any such laws
for non-public offerings. The Purchaser understands that the exemptions
from the registration requirements under state securities laws upon which
the Certificates is relying require that the Purchaser be one of the types
of investors specified in subsection (d) above under the applicable state
securities law and the Purchaser is such an investor. The Purchaser
further understands that the Certificates must be held indefinitely unless
subsequently registered under the Securities Act, any applicable state
securities or "Blue Sky" laws or unless exemptions from the registration
requirements of the Securities Act and such laws are available. The
Purchaser represents, warrants and agrees that, if at some future time the
Purchaser wishes to dispose of or exchange any of the Certificates, the
Purchaser will not do so unless before any such sale, transfer or other
disposition the Purchaser shall have furnished to the Trustee either (a) a
certificate of the transferee that the transferee is a "qualified
institutionalbuyer" within the meaning of Rule 144A promulgated pursuant to
the Securities Act or (b) a certificate of the transferee that the transferee
is an institutional "accredited investor" as defined in Rule 501(a) of the
Securities Act and, in the case of (b) only, an opinion of counsel
satisfactory in form and substance to the Trustee and the transferor, to the
effect that the sale, transfer or other disposition of such Certificate has
been registered under the Securities Act, or that such sale, transfer or
other disposition does not require registration under the Securities Act.
(f) Legal Investment. The Purchaser understands that there
may be restrictions on the ability of certain investors, including, without
limitation, depository institutions, either to purchase the Certificates or to
purchase investments having characteristics similar to those of the
Certificates representing more than a specified percentage of the investor's
assets, and the Purchaser further represents and warrants that it has
consulted, and relied on the advice of, its own legal advisor in
determining whether and to what extent the Certificates constitute a legal
investment for the Purchaser.
(g) The Purchaser (i) has no need for liquidity with respect to
the Certificates, (ii) is able to bear the economic risks of an investment
in the Certificates for an indefinite period and (iii) is able to afford a
complete loss of such investment. The Purchaser has such knowledge and
experience in financial and business matters to use the information made
available in connection with the offering of the Certificates, to evaluate the
merits and risks of the prospective investment in the Certificates and to
make an informed business decision with respect thereto. The Purchaser
understands that the Seller will rely upon the information supplied by the
Purchaser pursuant to this Agreement in order to verify this representation
and warranty and represents that such information is true and correct in
all respects. The Purchaser understands that a false representation may
constitute a violation of law, that any person which suffers damage as a
result of a false representation may have a claim against the undersigned
for damages for which the undersigned will indemnify the Seller and its
affiliates pursuant to the terms of this Agreement.
(h) The Purchaser understands that there is no established
market for the Certificates and that none may develop and, accordingly,
that the Purchaser must bear the economic risk of an investment in the
Certificates for an indefinite period of time.
(i) The Purchaser agrees that it is bound by and will abide by
the provisions of the Pooling and Servicing Agreement pursuant to which
the Certificates are issued.
(j) All information which the Purchaser has provided to the
Seller concerning the Purchaser is correct and complete as of the date
hereof, and if there should be any adverse change in such information
before receiving notification that this subscription has been accepted, the
Purchaser will immediately provide the Seller with such information.
Very truly yours,
[PURCHASER]
By
Name
Title
EXHIBIT L
ASSIGNMENT
In accordance with the Pooling and Servicing Agreement dated as
of September 1, 1996 by and among Aegis Auto Funding Corp., a
Delaware corporation (the "Seller"), and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee") and as backup servicer
(the "Backup Servicer") (the "Pooling and Servicing Agreement"), the
Seller hereby assigns, transfers and otherwise conveys unto the Trustee in
trust for the benefit of the Certificateholders, without recourse (capitalized
terms used herein and not otherwise defined shall have the meaning
assigned to them in the Pooling and Servicing Agreement): (i) all right,
title and interest of the Seller in and to the Receivables identified on
Schedule I attached hereto (the "Receivables"), and all moneys received
thereon, on and after the Cutoff Date allocable to principal, and all monies
received thereon allocable to interest accrued from and including the
Cutoff Date; (ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables and
all certificates of title to such Financed Vehicles; (iii) the interest of the
Seller in any Risk Default Insurance Proceeds or any proceeds from
claims on Insurance Policies (including the VSI Insurance Policy) covering
the Receivables, the Financed Vehicles or Obligors from the Cutoff Date;
(iv) the right of the Seller to realize upon any property (including the right
to receive future liquidation Proceeds) that shall have secured a Receivable
and have been repossessed by or on behalf of the Trustee; (v) the interest
of the Seller in any Dealer Recourse; (vi) all right, title and interest in the
Seller in and to the Purchase Agreement; and (vii) the proceeds of any and
all of the foregoing. The foregoing sale does not constitute and is not
intended to result in any assumption by the Trustee of any obligation of
the undersigned to the Obligors, insurers or any other person in
connection with the Receivables, Custodian Files, Servicer Files, any
insurance policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements contained in the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of , 199 .
AEGIS AUTO
FUNDING CORP.
a Delaware
corporation
By
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▇▇▇▇▇, Vice President
EXHIBIT M
TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 11.02
OF THE POOLING AND SERVICING AGREEMENT
Norwest Bank Minnesota, National Association, as trustee (the
"Trustee") of the Aegis Auto Receivables Trust Series 1996-A created
pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of September 1, 1996 among Aegis Auto
Funding Corp. (the "Seller"), Norwest Bank Minnesota, National
Association, as backup servicer (the "Backup Servicer") and as trustee (the
"Trustee"), does hereby sell, transfer, assign and otherwise convey to the
Seller, without recourse, representation or warranty, all of the Trustee's
right, title and interest in and to all of the Receivables (as defined in the
Pooling and Servicing Agreement) identified in the attached Servicer's
Certificate of "Purchased Receivables," which are to be repurchased by
the Seller pursuant to Section 3.02 of the Pooling and Servicing
Agreement, and all security and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this
day of 199 .
Norwest Bank Minnesota, National
Association, as Trustee
By
[Name]
[Title]
EXHIBIT N
APPOINTMENT OF CUSTODIAN'S AGENT