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TRUST AGREEMENT
by and between
DEALER AUTO RECEIVABLES CORP.
as Depositor,
and
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as Owner Trustee
Dated as of __________, 2000
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TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS..............................................................................1
SECTION 1.01. CAPITALIZED TERMS......................................................................1
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS..........................................................4
SECTION 1.03. USAGE OF TERMS.........................................................................4
SECTION 1.04. SECTION REFERENCES.....................................................................4
SECTION 1.05. ACCOUNTING TERMS.......................................................................4
ARTICLE TWO ORGANIZATION.............................................................................4
SECTION 2.01. NAME...................................................................................4
SECTION 2.02. OFFICE.................................................................................5
SECTION 2.03. PURPOSES AND POWERS....................................................................5
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE...........................................................6
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE.....................................6
SECTION 2.06. DECLARATION OF TRUST...................................................................6
SECTION 2.07. LIABILITY OF DEPOSITOR.................................................................6
SECTION 2.08. TITLE TO TRUST PROPERTY................................................................6
SECTION 2.09. SITUS OF TRUST.........................................................................6
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR........................................7
SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS.........................................................8
ARTICLE THREE TRUST CERTIFICATES AND TRANSFER OF INTERESTS.............................................9
SECTION 3.01. INITIAL OWNERSHIP......................................................................9
SECTION 3.02. THE TRUST CERTIFICATES.................................................................9
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATES.....................................10
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST CERTIFICATES...........................10
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES...............................11
SECTION 3.06. PERSONS DEEMED HOLDERS................................................................11
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS'NAMES AND ADDRESSES..............................11
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY.......................................................12
SECTION 3.09. TEMPORARY TRUST CERTIFICATES..........................................................12
SECTION 3.10. APPOINTMENT OF PAYING AGENT...........................................................12
SECTION 3.11. BOOK-ENTRY CERTIFICATES...............................................................13
SECTION 3.12. NOTICES TO CLEARING AGENCY............................................................14
SECTION 3.13. DEFINITIVE TRUST CERTIFICATES.........................................................14
ARTICLE FOUR ACTIONS BY OWNER TRUSTEE................................................................15
SECTION 4.01. PRIOR NOTICE TO HOLDERS WITH RESPECT TO CERTAIN MATTERS...............................15
SECTION 4.02. ACTION BY HOLDERS WITH RESPECT TO CERTAIN MATTERS.....................................16
SECTION 4.03. ACTION BY HOLDERS WITH RESPECT TO BANKRUPTCY..........................................16
SECTION 4.04. RESTRICTIONS ON HOLDERS'POWER.........................................................16
SECTION 4.05. MAJORITY CONTROL......................................................................16
ARTICLE FIVE APPLICATION OF TRUST FUNDS; CERTAIN DUTIES..............................................17
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT........................................................17
SECTION 5.02. APPLICATION OF TRUST FUNDS............................................................17
SECTION 5.03. METHOD OF PAYMENT.....................................................................17
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST.................................................18
SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS, HOLDERS, THE INTERNAL REVENUE
SERVICE AND OTHERS....................................................................18
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.............................................18
ARTICLE SIX AUTHORITY AND DUTIES OF OWNER TRUSTEE...................................................19
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SECTION 6.01. GENERAL AUTHORITY.....................................................................19
SECTION 6.02. GENERAL DUTIES........................................................................19
SECTION 6.03. ACTION UPON INSTRUCTION...............................................................19
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN INSTRUCTIONS....................20
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS............................21
SECTION 6.06. RESTRICTIONS..........................................................................21
ARTICLE SEVEN CONCERNING THE OWNER TRUSTEE............................................................21
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES.......................................................21
SECTION 7.02. FURNISHING OF DOCUMENTS...............................................................22
SECTION 7.03. REPRESENTATIONS AND WARRANTIES........................................................22
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL...........................................................23
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY.....................................................24
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES, NOTES OR CONTRACTS...................24
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATES AND NOTES....................................24
ARTICLE EIGHT COMPENSATION OF OWNER TRUSTEE...........................................................25
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES.....................................................25
SECTION 8.02. INDEMNIFICATION.......................................................................25
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE.........................................................25
ARTICLE NINE TERMINATION OF TRUST AGREEMENT..........................................................25
SECTION 9.01. TERMINATION OF TRUST AGREEMENT........................................................25
ARTICLE TEN SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES..................................27
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE............................................27
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE...............................................27
SECTION 10.03. SUCCESSOR OWNER TRUSTEE...............................................................28
SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE..............................................28
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.........................................28
ARTICLE ELEVEN MISCELLANEOUS...........................................................................30
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS............................................................30
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN HOLDERS.............................................31
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS.......................................................31
SECTION 11.04. NOTICES...............................................................................31
SECTION 11.05. SEVERABILITY OF PROVISIONS............................................................33
SECTION 11.06. COUNTERPARTS..........................................................................33
SECTION 11.07. SUCCESSORS AND ASSIGNS................................................................33
SECTION 11.08. NO PETITION...........................................................................34
SECTION 11.09. NO RECOURSE...........................................................................34
SECTION 11.10. HEADINGS..............................................................................34
SECTION 11.11. GOVERNING LAW.........................................................................34
SECTION 11.12. TRUST CERTIFICATE TRANSFER RESTRICTIONS...............................................34
EXHIBITS
Exhibit A - Form of Certificate of Trust......................................................................A-1
Exhibit B - Form of Trust Certificate.........................................................................B-1
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This Trust Agreement (the "AGREEMENT") dated as of __________, 2000, is
by and between DEALER AUTO RECEIVABLES CORP., a Delaware corporation, as
Depositor (the "DEPOSITOR"), and _________________, a _________________, as
owner trustee (the "OWNER TRUSTEE").
WHEREAS, in connection herewith, the Depositor is willing to assume
certain obligations pursuant hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CAPITALIZED TERMS. Except as otherwise provided in this
Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"ADMINISTRATION AGREEMENT" means the administration agreement, dated as
of the date hereof, among the Trust, the Depositor, the Indenture Trustee and
Premier Auto Finance, Inc., as administrator.
"AGREEMENT" means this Trust Agreement, as the same may be amended and
supplemented from time to time.
"APPLICANT" shall have the meaning set forth in SECTION 3.07.
"BENEFIT PLAN" means (i) an employee benefit plan (as such term is
defined in SECTION 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in SECTION 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity.
"BOOK-ENTRY TRUST CERTIFICATE" means a beneficial interest in the Trust
Certificates, the ownership of which shall be evidenced by, and transfers of
which shall be made through book entries by a Clearing Agency as described in
SECTION 3.11.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware
Code, 12 DEL. CODE SECTION 3801 ET SEQ., as the same may be amended from time to
time.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement dated as of the
Closing Date, by and among the Trust, the Owner Trustee, the Administrator and
DTC, as the initial Clearing Agency, substituting, in the form attached hereto
as EXHIBIT A, relating to the Trust Certificates, as the same may be amended and
supplemented from time to time.
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"CERTIFICATE DISTRIBUTION ACCOUNT" means the account established and
maintained as such pursuant to SECTION 5.01.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed for the
Trust pursuant to SECTION 3810(a) of the Business Trust Statute, substantially
in the form of EXHIBIT A hereto.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
SECTION 3.04(a).
"CERTIFICATEHOLDER" or "HOLDER" means with respect to Definitive Trust
Certificates the Person in whose name a Trust Certificate is registered in the
Certificate Register and with respect to a Book-Entry Trust Certificate, the
Person who is the owner of such Book-Entry Trust Certificate, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
either case, in accordance with the rules of such Clearing Agency), except that,
solely for the purposes of giving any consent, waiver, request or demand
pursuant to this Agreement, the interest evidenced by any Trust Certificate
registered in the name of the Depositor, Premier Auto Finance, Inc. or any of
their respective Affiliates shall not be taken into account in determining
whether the requisite percentage necessary to effect any such consent, waiver,
request or demand in respect of the Trust Certificates shall have been obtained.
"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 on or about _____________, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DEFINITIVE TRUST CERTIFICATES" shall have the meaning set forth in
SECTION 3.11.
"DEPOSITOR" means Dealer Auto Receivables Corp. in its capacity as
Depositor hereunder, and its successors.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSES" shall have the meaning assigned to such term in SECTION
8.02.
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"INDEMNIFIED PARTIES" shall have the meaning assigned to such term in
SECTION 8.02.
"INDENTURE" means the Indenture dated as of the date hereof between the
Trust and The Bank of New York, as Indenture Trustee.
"INITIAL CERTIFICATE BALANCE" means $______________.
"NOTE DEPOSITORY AGREEMENT" means the Agreement dated as of the Closing
Date among the Trust, the Indenture Trustee, the Administrator and DTC, as the
initial Clearing Agency, relating to the Notes, as the same may be amended and
supplemented from time to time.
"NOTES" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class B Notes, in each case issued pursuant to the Indenture.
"OWNER TRUSTEE" means __________________, a Delaware corporation, not
in its individual capacity but solely as owner trustee under this Agreement, and
any successor Owner Trustee hereunder.
"OWNER TRUSTEE CORPORATE TRUST OFFICE" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be [____________], or such other office at such other address as
the Owner Trustee may designate from time to time by notice to the
Certificateholders, the Servicer, the Depositor and Premier Auto Finance, Inc.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to SECTION 3.10.
"PERSON" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof) unincorporated organization or government or any agency or political
subdivision thereof.
"RECORD DATE" means, with respect to any Distribution Date, the last
Business Day of the preceding calendar month.
"SALE AND SERVICING AGREEMENT" means the sale and servicing agreement,
dated as of the date hereof, among the Trust, as Issuer, the Depositor, Premier
Auto Finance, Inc., as servicer, and The Bank of New York, as Indenture Trustee
as the same may be amended or supplemented from time to time.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"TAX MATTERS PARTNER" shall have the meaning provided in SECTION
5.06(b).
"TREASURY REGULATIONS" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary
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regulations shall include analogous provisions of final Treasury Regulations or
other successor Treasury Regulations.
"TRUST" means the trust established by this Agreement.
"TRUST CERTIFICATES" means the trust certificates evidencing the
beneficial equity interest of a Holder in the Trust, substantially in the form
of EXHIBIT B hereto.
"TRUST ESTATE" means all right, title and interest of the Trust in and
to the property and rights assigned to the Trust pursuant to Article Two of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and the Certificate Distribution Account and all other property
of the Trust from time to time, including any rights of the Trust pursuant to
the Sale and Servicing Agreement and the Administration Agreement.
"UNDERWRITERS" means Chase Securities Inc. and Aon Capital Markets,
Inc.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. Capitalized terms used
that are not otherwise defined herein shall have the meanings ascribed thereto
in the Sale and Servicing Agreement or, if not defined therein, in the
Indenture.
SECTION 1.03. 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
amendments, modifications and supplements thereto or any 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 1.04. SECTION REFERENCES. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
SECTION 1.05. ACCOUNTING TERMS. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE TWO
ORGANIZATION
SECTION 2.01. NAME. The Trust created hereby shall be known as "DEALER
AUTO RECEIVABLES OWNER TRUST 2000-1", in which name the Owner Trustee may
conduct the activities
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of the Trust, make and execute contracts and other instruments on behalf of the
Trust and ▇▇▇ and be sued.
SECTION 2.02. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address in Delaware as the Owner Trustee may designate by written notice to the
Holders and the Depositor.
SECTION 2.03. PURPOSES AND POWERS.
(a) The sole purpose of the Trust is to manage the Trust Estate and
collect and disburse the periodic income therefrom for the use and benefit of
the Holders, and in furtherance of such purpose to engage in the following
ministerial activities:
(i) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to exchange the Notes and
the Trust Certificates for the Trust Estate pursuant to the Sale and
Servicing Agreement;
(ii) to acquire the Contracts and other property from the
Depositor pursuant to the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Holders pursuant to the Sale and Servicing Agreement
any portion of the Trust Estate released from the Lien of, and remitted
to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to the
Holders and the Noteholders.
The Trust shall not engage in any activities other than in connection with the
foregoing. Nothing contained herein shall be deemed to authorize the Owner
Trustee to engage in any business operations or any activities other than those
set forth in the introductory sentence of this Section. Specifically, the Owner
Trustee shall have no authority to engage in any business operations, or acquire
any assets other than those specifically included in the Trust Estate under
SECTION 1.01, or otherwise vary the assets held by the Trust. Similarly, the
Owner Trustee shall have no discretionary duties other than performing those
ministerial acts set forth above necessary to accomplish the purpose of this
Trust as set forth in the introductory sentence of this Section.
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SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $_____________. The Owner Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the initial Trust Estate
and shall be deposited in the Reserve Account pursuant to SECTION 7.04 of the
Sale and Servicing Agreement. The Depositor shall pay organizational expenses of
the Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the sole purpose of conserving the Trust Estate and
collecting and disbursing the periodic income therefrom for the use and benefit
of the Holders, subject to the obligations of the Trust under the Transaction
Documents. It is the intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the intention
of the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a partnership, with the assets of the partnership
being the Contracts and other assets held by the Trust, the partners of the
partnership being the Certificateholders (including the Depositor) and the Notes
being debt of the partnership. The parties agree that, unless otherwise required
by a final determination to the contrary, the Trust will file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership, the partners of the
partnership being the Certificateholders (including the Depositor) and the Notes
being debt of the partnership, for such tax purposes. Effective as of the date
hereof, the Owner Trustee shall have all rights, powers and duties set forth
herein and in the Business Trust Statute for the sole purpose and to the extent
necessary to accomplish the purpose of this Trust as set forth in the
introductory sentence of SECTION 2.03.
SECTION 2.07. LIABILITY OF DEPOSITOR. No Owner, solely by virtue of its
being the Holder of a Trust Certificate, shall have any personal liability for
any liability or obligation of the Trust.
SECTION 2.08. TITLE TO TRUST PROPERTY. Legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
SECTION 2.09. SITUS OF TRUST. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Illinois or the
State of Delaware. The Trust shall not have any employees
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in any state other than Delaware; PROVIDED, HOWEVER, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without
the State of Delaware. Payments will be received by the Trust only in Delaware
and payments will be made by the Trust only from Delaware. The only office of
the Trust will be at the Owner Trustee Corporate Trust Office.
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor is duly organized and validly existing as a
corporation organized and existing and in good standing under the laws
of the State of Delaware, with power and authority to own its
properties and to conduct its business and had at all relevant times,
and has, power, authority and legal right to acquire and own the
Contracts.
(ii) The Depositor is duly qualified to do business as a
foreign corporation in good standing and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business requires such
qualifications.
(iii) The Depositor has the power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Trust as part of the Trust Estate
and has duly authorized such sale and assignment and deposit with the
Trust by all necessary corporate action; and the execution, delivery
and performance of this Agreement have been duly authorized by the
Depositor by all necessary corporate action.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of the properties of the Depositor pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Transaction Documents); nor violate any law or any
order, rule or regulation applicable to the Depositor of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or
its properties.
(v) There are no proceedings or investigations pending, or to
the Depositor's best knowledge threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or
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its properties: (A) asserting the invalidity of this Agreement, any of
the other Transaction Documents or the Trust Certificates, (B) seeking
to prevent the issuance of the Trust Certificates or the consummation
of any of the transactions contemplated by this Agreement or any of the
other Transaction Documents, (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability
of, this Agreement, any of the other Transaction Documents or the Trust
Certificates or (D) involving the Depositor and which might adversely
affect the federal income tax or other federal, state or local tax
attributes of the Trust Certificates.
SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS.
(a) Trust items of income, gain, loss and deduction for any month as
determined for federal income tax purposes shall be allocated as follows:
(i) The Certificateholders, as of the first Record Date
following the end of such month, shall be allocated the following items
in proportion to their ownership of the principal amount of Trust
Certificates on such date: (A) interest equal to the Certificate
Interest Distributable Amount for such month, (B) accrued interest on
the excess, if any, of the Certificate Interest Distributable Amount
for the preceding Distribution Date over the amount in respect of
interest that is actually deposited in the Certificate Distribution
Account on such preceding Distribution Date, to the extent permitted by
law, at the Pass-Through Rate from such preceding Distribution Date
through the current Distribution Date, (C) the portion of the market
discount on the Contracts accrued during such quarter that is allocable
to the excess, if any, of the initial aggregate principal amount of the
Trust Certificates over their initial aggregate issue price and (D) any
other items of income and gain payable to the Certificateholders for
such month; such sum to be reduced by any amortization deduction by the
Trust of premium on Contracts that corresponds to any excess of the
issue price of Trust Certificates over their principal amount; and
(ii) to the Depositor to the extent of any remaining items of
income, gain, loss and deduction.
If the items of income or gain of the Trust for any calendar quarter are
insufficient for the allocations described in SECTION 2.11(a)(i), subsequent
items of income or gain shall first be allocated to make up such shortfall
before being allocated as provided in SECTION 2.11(a)(ii).
(b) To the extent that the Depositor would be allocated cumulative
items of loss and deduction in excess of the sum of (A) the cumulative items of
income and gain, if any, allocated to the Depositor, PLUS (B) the cumulative
contributions made by the Depositor to the Trust, PLUS (C) the amount of Trust
liabilities or claims, if any, for which the Depositor is liable pursuant to
SECTION 2.07 or otherwise allocated under Section 752 of the Code, LESS (D) the
cumulative distributions made to the Depositor pursuant to SECTION 5.02, then
such excess items
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of loss and deduction shall instead be allocated among the
Certificateholders (other than the Depositor) as of the first Record Date
following the end of such quarter in proportion to their ownership of the
principal amount of Trust Certificates on such Record Date until the cumulative
items of loss and deduction allocated to such Certificateholders equal the sum
of (I) the cumulative items of income and gain allocated to such
Certificateholders, PLUS (II) the cumulative contributions made by such
Certificateholders to the Trust, PLUS (III) the amount of Trust liabilities
allocated to such Certificateholders under Section 752 of the Code, LESS (IV)
the cumulative distributions made to the Depositor pursuant to SECTION 5.02.
Thereafter, any such excess items of loss and deduction shall be allocated among
the Depositor and the other Certificateholders in accordance with how such
Persons are reasonably expected to bear the economic burden of such items.
(c) The provisions of this Agreement relating to the allocations are
intended to comply with Treasury Regulation Sections 1.704-1 and 1.704-2. The
Depositor and Premier Auto Finance, Inc. are authorized to modify the
allocations in this paragraph if necessary or appropriate, in its sole
discretion, for the allocations to fairly reflect the economic income, gain or
loss to the Depositor or to the Certificateholders, or as otherwise to cause
such allocations to have substantial economic effect within the meaning of
Regulations Section 1.704-1(b)(2) or to be deemed to be in accordance with the
interests in the Trust under such Treasury Regulations.
ARTICLE THREE
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL OWNERSHIP. Upon the formation of the Trust by the
contribution by the Depositor pursuant to SECTION 2.05 and until the issuance of
the Trust Certificates, the Depositor shall be the sole beneficiary of the
Trust.
SECTION 3.02. THE TRUST CERTIFICATES. The Trust Certificates shall be
substantially in the form of EXHIBIT B hereto. The Trust Certificates shall be
issuable in minimum denominations of $1,000 and integral multiples of $1,000 in
excess thereof. The Trust Certificates shall be executed by the Owner Trustee on
behalf of the Trust by manual or facsimile signature of an authorized officer of
the Owner Trustee and shall be deemed to have been validly issued when so
executed. Trust Certificates bearing the manual or facsimile signature of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Owner Trustee shall be valid and binding obligations of
the Trust, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of such Trust
Certificates or did not hold such offices at the date of such Trust
Certificates. All Trust Certificates shall be dated the date of their
authentication.
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SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATES. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Depositor, in exchange for the Contracts and the other assets of the Trust,
simultaneously with the sale, assignment and transfer to the Trust of the
Contracts and such other assets and the constructive delivery to the Trust of
the Contract Files and the other assets of the Trust, Trust Certificates duly
authenticated by the Owner Trustee, in authorized denominations equaling in the
aggregate the Initial Certificate Balance evidencing the entire ownership of the
Trust and Notes issued by the Trust and authenticated by the Indenture Trustee
in aggregate principal amount of, in the case of (i) Class A-1 Notes, $________,
(ii) Class A-2 Notes, $________, (iii) Class A-3 Notes $________, and (iv) Class
B Notes, $__________. No Trust Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Trust Certificate a certificate of authentication substantially in the form set
forth in the form of Trust Certificate attached hereto as EXHIBIT B, executed by
the Owner Trustee or its authenticating agent, by manual signature, and such
certificate upon any Trust Certificate shall be conclusive evidence, and the
only evidence, that such Trust Certificate has been duly authenticated and
delivered hereunder. Upon issuance, authorization and delivery pursuant to the
terms hereof, the Trust Certificates will be entitled to the benefits of this
Agreement.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATES.
(a) The Owner Trustee shall cause to be kept at the office or agency to
be maintained pursuant to SECTION 3.08 by a certificate registrar (the
"CERTIFICATE REGISTRAR"), a register (the "CERTIFICATE REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. The Owner
Trustee is hereby initially appointed Certificate Registrar for the purpose of
registering Trust Certificates and transfers and exchanges of Trust Certificates
as herein provided. In the event that, subsequent to the Closing Date, the Owner
Trustee notifies the Administrator that it is unable to act as Certificate
Registrar, the Administrator shall appoint another bank or trust company, having
an office or agency located in the City of Chicago, Illinois, agreeing to act in
accordance with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Owner Trustee, to act as successor Certificate Registrar
hereunder.
(b) Upon surrender for registration of transfer of any Trust
Certificate at the Owner Trustee Corporate Trust Office, the Owner Trustee shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations of a
like aggregate principal amount.
(c) At the option of a Certificateholder, Trust Certificates may be
exchanged for other Trust Certificates in authorized denominations of a like
aggregate principal amount, upon surrender of the Trust Certificates to be
exchanged at any such office or agency. Whenever any Trust Certificates are so
surrendered for exchange, the Owner Trustee on behalf of the Trust shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and
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deliver) the Trust Certificates that the Certificateholder making the exchange
is entitled to receive. Every Trust Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar duly executed by the Holder thereof or his attorney duly
authorized in writing.
(d) No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner 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 Trust Certificates.
(e) All Trust Certificates surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Owner Trustee.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.
If (i) any mutilated Trust Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Trust Certificate, and (ii) there is
delivered to the Certificate Registrar and the Owner 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 Trust Certificate has been acquired by a protected
purchaser, the Owner Trustee on behalf of the Trust shall execute and the Owner
Trustee or its authenticating agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of like tenor and fractional undivided
interest. In connection with the issuance of any new Trust Certificate under
this Section, the Owner Trustee may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. Any duplicate Trust Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Certificate shall be found at any time.
SECTION 3.06. PERSONS DEEMED HOLDERS. Prior to due presentation of a
Trust Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the Person in
whose name any Trust Certificate is registered as the owner of such Trust
Certificate for the purpose of receiving distributions pursuant to SECTION 5.02
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar, any Paying Agent or any of their respective agents shall
be bound by any notice of the contrary.
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Certificate Registrar shall furnish or cause to be furnished to
the Servicer and the Depositor, within 15 days after receipt by the Certificate
Registrar of a written request therefor from the Servicer or the Depositor, a
list, in such form as the Servicer or the Depositor may reasonably require, of
the names and addresses of the Certificateholders as of the most recent Record
Date. If three or more Certificateholders, or one or more Certificateholders of
Trust Certificates
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evidencing not less than 25% of the percentage interests of the Trust
Certificates (hereinafter referred to as "APPLICANTS"), apply in writing to the
Owner Trustee, and such application states that the Applicants desire to
communicate with other Certificateholders with respect to their rights hereunder
or under the Trust Certificates and such application is accompanied by a copy of
the communication that such Applicants propose to transmit, then the Owner
Trustee shall, within five Business Days after the receipt of such application,
afford such Applicants access, during normal business hours, to the current list
of Certificateholders. Every Certificateholder, by receiving and holding a Trust
Certificate, agrees with the Servicer, the Depositor and the Owner Trustee that
none of the Servicer, the Depositor or the Owner Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in New York, New York, an office or offices or agency or agencies where
Trust Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Trust Certificates and this Agreement may be served. The Owner Trustee hereby
designates the Owner Trustee Corporate Trust Office as its office for such
purposes. The Owner Trustee shall give prompt written notice to the Depositor,
the Servicer and to Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 3.09. TEMPORARY TRUST CERTIFICATES. Pending the preparation of
Definitive Trust Certificates, the Owner Trustee, on behalf of the Trust, may
execute, authenticate and deliver, temporary Trust Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Trust
Certificates in lieu of which they are issued. If temporary Trust Certificates
are issued, the Depositor will cause definitive Trust Certificates to be
prepared without unreasonable delay. After the preparation of definitive Trust
Certificates, the temporary Trust Certificates shall be exchangeable for
definitive Trust Certificates upon surrender of the temporary Trust Certificates
at the office or agency to be maintained as provided in SECTION 3.08, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Trust Certificates, the Owner Trustee shall execute and authenticate
and deliver in exchange therefor a like principal amount of definitive Trust
Certificates in authorized denominations. Until so exchanged, the temporary
Trust Certificates shall in all respects be entitled to the same benefits
hereunder as definitive Trust Certificates.
SECTION 3.10. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to SECTION 5.02(a) and shall report the amounts of such distributions
to the Owner Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Certificate Distribution Account for the purpose of
making the distributions referred to above. The Owner Trustee may revoke such
power and remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any
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material respect. The Paying Agent initially shall be
[___________________________], and any co-paying agent chosen by the Paying
Agent that is acceptable to the Owner Trustee. Each Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. In the event that [__________________________] shall no longer be the
Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that, as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of SECTIONS 7.01, 7.03, 7.04 and 8.01 shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.11. BOOK-ENTRY CERTIFICATES. The Trust Certificates upon
original issuance will be issued in the form of one or more typewritten
certificates representing the Book-Entry Trust Certificates, to be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Trust. The
certificate or certificates delivered to DTC evidencing such Trust Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Certificateholder (other
than the Company) will receive a definitive certificate representing such
Certificateholders' interest in the Trust Certificates, except as provided in
SECTION 3.13. Unless and until definitive, fully registered Trust Certificates
(the "DEFINITIVE TRUST CERTIFICATES") have been issued to Certificateholders
pursuant to SECTION 3.13:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Depositor, the Servicer, the Certificate Registrar
and the Owner Trustee, subject to the provisions and limitations of
SECTIONS 2.03 and 2.06, may deal with the Clearing Agency for all
purposes (including the making of distributions on the Trust
Certificates) as the authorized representative of the
Certificateholders;
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(iii) to the extent that the provisions of this section
conflict with any other provisions of this agreement, the provisions of
this Section shall control;
(iv) the rights of Certificateholder shall be exercised only
through the Clearing Agency (or through procedures established by the
Clearing agency) and shall be limited to those established by law and
agreements between the Holder and the Clearing Agency and/or the
Clearing Agency Participants; pursuant to the Certificate Depository
Agreement, unless and until Definitive Trust Certificates are issued
pursuant to SECTION 3.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit distributions of principal and interest on the Trust
Certificates to such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Certificateholders
evidencing a specified percentage of the percentage interests thereof,
the Clearing Agency shall be deemed to represent such percentage only
to the extent that it has received instructions to such effect from
Certificateholders and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in Trust Certificates and has delivered such instructions to
the Owner Trustee.
SECTION 3.12. NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required hereunder, unless and until
Definitive Trust Certificates shall have been issued to Certificateholders
pursuant to SECTION 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency.
SECTION 3.13 DEFINITIVE TRUST CERTIFICATES. If (i)(A) the
Administrator advises the Owner Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities as
described in the Certificate Depository Agreement and (B) the Owner Trustee or
the Administrator is unable to locate a qualified successor, (ii) the
Administrator, at its option, advises the Owner Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency, or (iii)
after the occurrence of an Event of Default or a Servicer Default,
Certificateholders representing beneficial interests aggregating more than 50%
of the Certificate Balance advise the Owner Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Certificateholders, then the Clearing Agency shall notify all
Certificateholders and the Owner Trustee of the occurrence of any such event and
of the availability of Definitive Trust Certificates to Certificateholders
requesting the same. Upon surrender to the Owner Trustee by the Clearing Agency
of the certificates evidencing the Book-Entry Trust Certificates, accompanied by
registration instructions from the Clearing Agency for registration, the Owner
Trustee shall issue the Definitive Trust Certificates and deliver such
Definitive Trust Certificates in accordance with the instructions of the
Clearing Agency. Neither the Depositor, the Certificate Registrar nor the Owner
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively
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rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Trust Certificates, the Owner Trustee shall recognize the
Certificateholders of the Definitive Trust Certificates as Certificateholders
hereunder. The Owner Trustee shall not be liable if the Owner Trustee or the
Administrator is unable to locate a qualified successor Clearing Agency. The
Definitive Trust Certificates shall be printed, lithographed or engraved or may
be produced in any manner as is reasonably acceptable to the Owner Trustee, as
evidenced by its execution thereof.
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO HOLDERS WITH RESPECT TO CERTAIN MATTERS.
Subject to the provisions and limitations of SECTION 4.04, with respect to the
following matters, the Owner Trustee shall not take action unless at least 30
days before the taking of such action, the Owner Trustee shall have notified the
Certificateholders in writing of the proposed action and the Holders shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Holders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the Contracts) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Contracts);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially and adversely affects the interest of the Holders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner or add any provision that would not materially and adversely affect
the interests of the Holders; or
(f) the amendment, change or modification of the Sale and Servicing
Agreement, except any amendment where the consent of any Certificateholder is
not required under the terms of the Sale and Servicing Agreement; or
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(g) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent, Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or the Agreement, as applicable.
SECTION 4.02. ACTION BY HOLDERS WITH RESPECT TO CERTAIN MATTERS.
Subject to the provisions and limitations of SECTION 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Holders, to (a)
remove the Administrator pursuant to SECTION 8 of the Administration Agreement,
(b) appoint a successor Administrator pursuant to SECTION 8 of the
Administration Agreement, (c) remove the Servicer pursuant to SECTION 8.03 of
the Sale and Servicing Agreement, (d) except as expressly provided in the
Transaction Documents, sell the Contracts after the termination of the
Indenture, (e) initiate any claim, suit or proceeding by the Trust or compromise
any claim, suit or proceeding brought by or against the Trust, (f) authorize the
merger or consolidation of the Trust with or into any other business trust or
entity (other than in accordance with SECTION 3.10 of the Indenture) or (g)
amend the Certificate of Trust. The Owner Trustee shall take the actions
referred to in the preceding sentence only upon written instructions signed by
the Holders.
SECTION 4.03. ACTION BY HOLDERS WITH RESPECT TO BANKRUPTCY. The Owner
Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the unanimous prior approval of all
Holders and the delivery to the Owner Trustee by each such Holder of a
certificate certifying that such Holder reasonably believes that the Trust is
insolvent.
SECTION 4.04. RESTRICTIONS ON HOLDERS' POWER. The Holders shall not
direct the Owner Trustee to take or to refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the Owner
Trustee under this Agreement or any of the Transaction Documents or would be
contrary to the purpose of this Trust as set forth in SECTION 2.03, nor shall
the Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.05. MAJORITY CONTROL. Except as expressly provided herein,
any action that may be taken by the Holders under this Agreement may be taken by
the Holder of Trust Certificates evidencing not less than a majority of the
Certificate Balance. Except as expressly provided herein, any written notice of
the Holders delivered pursuant to this Agreement shall be effective if signed by
the Holders of Trust Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS;
CERTAIN DUTIES
SECTION 5.01. ESTABLISHMENT OF TRUST ACCOUNT. The Owner Trustee, for
the benefit of the Certificateholders, shall establish and maintain in the name
of the Trust an Eligible Account (the "CERTIFICATE DISTRIBUTION ACCOUNT"),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders.
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account and
in all proceeds thereof. Except as otherwise expressly provided herein, the
Certificate Distribution Account shall be under the sole dominion and control of
the Owner Trustee for the benefit of the Certificateholders. If, at any time,
the Certificate Distribution Account ceases to be an Eligible Account, the Owner
Trustee (or the Depositor on behalf of the Owner Trustee, if the Certificate
Distribution Account is not then held by the Owner Trustee or an Affiliate
thereof) shall within ten Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Certificate Distribution Account as an Eligible Account and shall transfer any
cash and/or any investments to such new Certificate Distribution Account.
SECTION 5.02. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Owner Trustee will distribute to
Certificateholders, on a pro rata basis, amounts deposited in the Certificate
Distribution Account pursuant to SECTION 7.03 of the Sale and Servicing
Agreement with respect to such Distribution Date.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement or statements provided to the Owner Trustee by
the Servicer pursuant to SECTION 9.06 of the Sale and Servicing Agreement with
respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocation of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Owner Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Holders sufficient funds for the payment
of any tax that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility
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that withholding tax is payable with respect to a distribution, the Owner
Trustee may in its sole discretion withhold such amounts in accordance with this
paragraph (c).
SECTION 5.03. METHOD OF PAYMENT. Subject to SECTION 9.01(c) respecting
the final payment upon retirement of each Certificate, distributions required to
be made to each Certificateholder of record on the related Record Date shall be
made either (a) by wire transfer, in immediately available funds, to the account
of such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to the Distribution Date and such Certificateholder's Certificates in
the aggregate evidence a denomination of not less than $1,000,000 or (b) by
check mailed to such Certificateholder at the address of such Holder appearing
in the Certificate Register; PROVIDED that, unless Definitive Certificates have
been issued pursuant to SECTION 3.13, with respect to Trust Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), distributions will made by wire
transfer in immediately available funds to the account designated by such
nominee.
SECTION 5.04. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to
SECTIONS 5.01 and 5.02, moneys received by the Owner Trustee hereunder need not
be segregated in any manner except to the extent required by law or the Sale and
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Owner Trustee shall not be liable for any interest
thereon.
SECTION 5.05. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDERS,
HOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis and the accrual method of accounting, (b) deliver to each Holder, as may
be required by the Code and applicable Treasury Regulations, such information as
may be required (including Schedule K-1) to enable each Holder to prepare its
federal and state income tax returns, (c) file such tax returns relating to the
Trust (including a partnership information return, IRS Form 1065) and make such
elections as from time to time may be required or appropriate under any
applicable state or federal statute or any rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax as described in and
in accordance with SECTION 5.02(c) with respect to income or distributions to
Holders. The Owner Trustee shall elect under SECTION 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Contracts. The Owner Trustee shall not make the election provided under SECTION
754 or SECTION 761 of the Code.
SECTION 5.06. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Depositor shall sign on behalf of the Trust the tax returns of
the Trust.
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(b) The Depositor shall be designated the "TAX MATTERS PARTNER" of the
Trust pursuant to SECTION 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. Subject to the provisions and
limitations of SECTIONS 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit to
or contemplated by the Transaction Documents to which the Trust is to be a party
and any amendment or other agreement, as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Transaction Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator recommends
with respect to the Transaction Documents.
SECTION 6.02. GENERAL DUTIES. Subject to the provisions and limitations
of SECTIONS 2.03 and 2.06, it shall be the duty of the Owner Trustee to
discharge (or cause to be discharged through the Administrator) all of its
responsibilities pursuant to the terms of this Agreement and the Transaction
Documents to which the Trust is a party and to administer the Trust in the
interest of the Holders, subject to the Transaction Documents and in accordance
with the provisions of this Agreement. Without limiting the foregoing, the Owner
Trustee shall on behalf of the Trust file and prove any claim or claims that may
exist against Premier Auto Finance, Inc. in connection with any claims paying
procedure as part of an insolvency or receivership proceeding involving Premier
Auto Finance, Inc. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Transaction Document, and the Owner Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement.
SECTION 6.03. ACTION UPON INSTRUCTION.
(a) Subject to ARTICLE FOUR, in accordance with the terms of the
Transaction Documents the Holders may by written instruction direct the Owner
Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other Transaction Document or is
otherwise contrary to law.
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(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any other Transaction Document, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the Holders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Holders received, the Owner Trustee shall not be liable on
account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement and the
other Transaction Documents, as it shall deem to be in the best interests of the
Holders, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
applicability of any provision of this Agreement or any other Transaction
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event
that this Agreement permits any determination by the Owner Trustee or is silent
or in incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Holders requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Agreement or the other
Transaction Documents, as it shall deem to be in the best interests of the
Holders, and shall have no liability to any Person for such action or inaction.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or any document or written instruction received by the Owner
Trustee pursuant to SECTION 6.03; and no implied duties or obligations shall be
read into this Agreement or any other Transaction Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Commission filing for the Trust or to
record this Agreement or any other Transaction Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on
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any part of the Trust Estate that result from actions by, or claims against, the
Owner Trustee that are not related to the ownership or the administration of the
Trust Estate.
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the other Transaction
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to SECTION 6.03.
SECTION 6.06. RESTRICTIONS. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in SECTION
2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for federal or state income tax
purposes. The Holders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section.
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any other Transaction Document under any circumstances, except (i) for its
own willful misconduct or negligence or (ii) in the case of the inaccuracy of
any representation or warranty contained in SECTION 7.03 expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator or any Holder;
(c) no provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Transaction Document if the Owner Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
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(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate, or for or in respect of the validity or
sufficiency of the Transaction Documents, other than the certificate of
authentication on the Trust Certificates, and the Owner Trustee shall in no
event assume or incur any liability, duty, or obligation to any Noteholder or to
any Holder, other than as expressly provided for herein or expressly agreed to
in the Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Administrator, the Depositor, the Indenture Trustee or the Servicer under
any of the Transaction Documents or otherwise and the Owner Trustee shall have
no obligation or liability to perform the obligations of the Trust under this
Agreement or the other Transaction Documents that are required to be performed
by the Administrator under the Administration Agreement, the Indenture Trustee
under the Indenture or the Servicer or the Depositor under the Sale and
Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by the Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any other Transaction Document, at the request, order or direction
of the Holders, unless such Holders have offered to the Owner Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or in any
other Transaction Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 7.02. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Holders promptly upon receipt of a written request therefor, duplicates
or copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee under the
Transaction Documents.
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Depositor and the Holders that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement.
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(b) It has taken all corporate action necessary to authorize the
execution an delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound or result in the creation or imposition of
any lien, charge or encumbrance on the Trust Estate resulting from actions by or
claims against the Owner Trustee individually which are unrelated to this
Agreement or the other Transaction Documents.
(d) The execution, delivery and performance by the Owner 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 of the State of
Delaware or the United States of America regulating the corporate trust
activities of the Owner Trustee.
(e) This Agreement has been duly authorized, executed and delivered by
the Owner Trustee and shall constitute the legal, valid, and binding agreement
of the Owner Trustee, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization and other
laws affecting the rights of creditors generally, and by general principles of
equity regardless of whether enforcement is pursuant to proceeding in equity or
at law.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to
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agreements entered into by any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys shall have been
selected by the Owner Trustee with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be selected with reasonable
care and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such persons.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article Seven, in accepting the trusts hereby created, _______________ acts
solely as Owner Trustee hereunder and not in its individual capacity, and all
Persons having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any other Transaction Document shall look only
to the Trust Estate for payment or satisfaction thereof.
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES, NOTES OR
CONTRACTS. The recitals contained herein and in the Trust Certificates (other
than the signature and countersignature of the Owner Trustee and the certificate
of authentication on the Trust Certificates) shall be taken as the statements of
the Depositor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Transaction Document or the
Trust Certificates (other than the signature and countersignature of the Owner
Trustee and the certificate of authentication on the Trust Certificates) or the
Notes, or of any Contract or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Contract, or the perfection and priority of
any security interest created by any Contract in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Agreement or the Noteholders under
the Indenture, including, without limitation, the existence, condition and
ownership of any Financed Vehicle; the existence and enforceability of any
insurance thereon; the existence and contents of any Contract on any computer or
other record thereof; the validity of the assignment of any Contract to the
Trust or of any intervening assignment; the completeness of any Contract; the
performance or enforcement of any Contract; the compliance by the Depositor or
the Servicer with any warranty or representation made under any Transaction
Document or in any related document or the accuracy of any such warranty or
representation; or any action of the Administrator, the Indenture Trustee or the
Servicer or any subservicer taken in the name of the Owner Trustee.
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATES AND NOTES. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
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ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon and which shall be paid consistent with SECTION 7.03(a)
of the Sale and Servicing Agreement. Additionally, the Owner Trustee shall be
entitled to be reimbursed by the Servicer for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and its
duties hereunder.
SECTION 8.02. INDEMNIFICATION. The Servicer shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors, assigns
and servants (collectively, the "INDEMNIFIED PARTIES") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "EXPENSES") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Transaction Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder, except only that the Servicer shall not be liable for
or required to indemnify an Indemnified Party from and against Expenses arising
or resulting from any of the matters described in the third sentence of SECTION
7.01. The indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement or a
Service Transfer pursuant to SECTION 8.03 of the Sale and Servicing Agreement.
In the event of any claim, action or proceeding for which indemnity will be
sought pursuant to this Section, the Owner Trustee's choice of legal counsel
shall be subject to the approval of the Servicer, which approval shall not be
unreasonably withheld.
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of the
Trust Estate immediately after such payment.
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Article Eight) and the Trust shall
terminate and be of no further force or effect upon the earlier of (i) final
distribution by the Owner Trustee of all moneys or other property or proceeds of
the Trust Estate in accordance with terms of the
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Indenture, the Sale and Servicing Agreement and Article Five and (ii) the
expiration of 21 years from the death of the survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof. The bankruptcy, liquidation, dissolution,
death or incapacity of any Holder, shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Holder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Trust Estate or
(iii) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in SECTION 9.01(a), neither the Depositor nor
any Holder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which Certificateholders shall surrender their Trust Certificates to
the Paying Agent for payment of the final distribution and cancellation, shall
be given by the Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from the Servicer given
pursuant to SECTION 10.01 of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon or with respect to which final payment of the Trust
Certificates shall be made upon presentation and surrender of the Trust
Certificates at the office of the Owner Trustee or the Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Trust Certificates at the
office of the Owner Trustee or the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than the
Owner Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Trust Certificates,
the Owner Trustee or the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
SECTION 5.02.
(d) In the event that all of the Certificateholders shall not surrender
their Trust Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by the Owner
Trustee to the Depositor.
(e) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of SECTION 3810 of the Business Trust Statute.
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ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of SECTION
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by ▇▇▇▇▇'▇. If
such corporation shall publish reports of condition at least annually pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in SECTION 10.02.
SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to the successor
Owner Trustee. If no successor Owner Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of SECTION 10.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator, may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to SECTION 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
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SECTION 10.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to SECTION 10.02 shall execute, acknowledge and deliver to
the Administrator, and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective, and such successor
Owner 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 Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Administrator and the predecessor Owner
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 Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to SECTION 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to all
Certificateholders, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within ten days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner 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 Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; PROVIDED, that such corporation shall be eligible pursuant to
SECTION 10.01 and, PROVIDED, FURTHER, that the Owner Trustee shall mail notice
of such merger or consolidation to each Rating Agency.
SECTION 10.05. 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 Estate or any Financed Vehicle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner
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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 Owner Trustee pursuant to SECTION 10.01 and no notice
of the appointment of any co-trustee or separate trustee shall be required
pursuant to SECTION 10.03.
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 Owner Trustee shall be conferred upon and exercised or
performed by the Owner 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 Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner 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 Estate 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 Owner 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 Administrator and the Owner 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 Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
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 Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as 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
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
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ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS.
(a) This Agreement may be amended from time to time by the Depositor
and the Owner Trustee, with notice to the Rating Agencies, but without the
consent of the Trustees or any of the Securityholders, to correct manifest
error, to cure any ambiguity, to correct or supplement any provisions herein
which may be ambiguous or inconsistent with any other provisions herein or in
any other Transaction Document, as the case may be, or to add any other
provisions with respect to matters or questions arising under this Agreement
that shall not be inconsistent with the provisions of this Agreement; PROVIDED,
HOWEVER, that such action shall not, as evidenced by an Opinion of Counsel,
materially and adversely affect the interests of any Securityholder.
(b) This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with the consent of Noteholders of more than
50% of the aggregate principal amount of the Class A-1 Notes, Class A-2 Notes
and Class A-3 Notes, or, if there are no Class A-1 Notes, Class A-2 Notes or
Class A-3 Notes outstanding, with the consent of Noteholders of more than 50% of
the aggregate principal amount of the Class B Notes, or, if there are no Notes
outstanding, with the consent of Certificateholders of more than 50% of the
Certificate Balance, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or Certificateholders;
PROVIDED, HOWEVER, that no such amendment or waiver shall (x) increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments on the Contracts or distributions which are required to be made on
any Note or Certificate, (y) change the interest rate on any Notes or
Certificates which such change adversely affects the priority of payment of
principal or interest made to the Noteholders or Certificateholders or (z)
reduce the aforesaid percentage required to consent to any such amendment,
without the consent of the Noteholders and Certificateholders then outstanding;
and PROVIDED, FURTHER, that no such amendment or consent shall be effective
unless each Rating Agency delivers written confirmation that such amendment or
consent will not cause its then-current rating on any class of Notes or the
Certificates to be qualified, reduced or withdrawn.
(c) The consent of any Holder of a Note or Trust Certificate given
pursuant to this Section or pursuant to any other provision of this Agreement
shall be conclusive and binding on such Holders and on all future Holder of such
Note or Trust Certificate, as the case may be, issued upon the transfer thereof
or in exchange thereof or in lieu thereof whether or not notation of such
consent is made thereon
(d) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent,
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together with a copy thereof, to the Indenture Trustee, the Administrator and
each Rating Agency.
(e) Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder. It shall not be necessary for
the consent of Certificateholders, Noteholders or the Indenture Trustee pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents (and any other consents of
Certificateholders provided for in this Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the Owner
Trustee may prescribe.
(f) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(g) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner 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. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment that affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN HOLDERS. The Holders
shall not have legal title to any part of the Trust Estate. The Holders shall be
entitled to receive distributions with respect to their undivided ownership
interest herein only in accordance with Articles Five and Nine. No transfer, by
operation of law or otherwise, of any right, title or interest of the Holders to
and in their ownership interest in the Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS. Except for SECTION
2.07, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Holders, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement (other than SECTION 2.07), whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Trust Estate or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
SECTION 11.04. NOTICES. All notices, demands, certificates, requests
and communications hereunder ("NOTICES") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt to
be effective the date of delivery indicated on the return receipt, or (b) one
Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an
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Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Servicer or Seller:
Premier Auto Finance, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (___) _____-_____
(ii) If to the Depositor:
Dealer Auto Receivables Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (___) ____-______
(iii) If to the Indenture Trustee:
The Bank of New York
[address]
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Attention: _____________________________
Telecopier No.: (___) ____-______
(iv) If to the Owner Trustee:
[address]
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Attention: _____________________________
Telecopier No.: (___) ____-______
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(v) If to Moody's:
▇▇▇▇▇'▇ Investors Service, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Monitoring Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(vi) If to Standard & Poor's:
Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(vii) If to the Underwriters:
Chase Securities Inc.
[address]
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Attention: ______________
Telecopier No.: (___) ____-______
Each party hereto may, by notice given in accordance herewith to each
of the other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 11.05. 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 Trust Certificates or the rights of the Holders thereof.
SECTION 11.06. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Depositor, and the Owner Trustee and their respective successors and permitted
assigns and each Holder and its successors and
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permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Holder shall bind the
successors and assigns of such Holder.
SECTION 11.08. NO PETITION.
(a) The Depositor will not at any time institute against the Trust any
bankruptcy proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Trust
Certificates, the Notes, this Agreement or any of the other Transaction
Documents.
(b) The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee
and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the
Depositor or the Trust, or join in any institution against the Depositor, or the
Trust of, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificates, the Notes, this Agreement or any of the other Transaction
Documents.
SECTION 11.09. NO RECOURSE. Each Certificateholder by accepting a Trust
Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Depositor, the Servicer, the Seller, the Administrator,
the Owner Trustee, the Indenture Trustee or any of the respective Affiliates and
no recourse may be had against such parties or their assets, except as my be
expressly set forth or contemplated in this Agreement, the Trust Certificates or
the other Transaction Documents.
SECTION 11.10. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. TRUST CERTIFICATE TRANSFER RESTRICTIONS. The Trust
Certificates may not be acquired by or for the account of a Benefit Plan. By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan nor will it hold
such Trust Certificate for the account of a Benefit Plan. By accepting and
holding a Trust Certificate, the Holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
DEALER AUTO RECEIVABLES
CORP.
as Depositor
By:
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Printed Name:
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Title:
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_________________________-, as Owner Trustee
By:
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Printed Name:
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Title:
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EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
Dealer Auto Receivables Owner Trust 2000-1
This Certificate of Trust of Dealer Auto Receivables Owner Trust
2000-1 (the "TRUST"), dated _______, 2000, is being duly executed and filed
by _____________, a _______________________, as Owner Trustee, to form a
business trust under the Delaware Business Trust Act (12 DEL. CODE, Section
3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Dealer
Auto Receivables Owner Trust 2000-1.
2. DELAWARE TRUSTEE. The name and business address of the Owner
Trustee of the Trust in the State of Delaware is _________________,
[______________].
IN WITNESS WHEREOF, the undersigned, being the sole Owner Trustee of
the Trust, has executed this Certificate of Trust as of the date first above
written.
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not in its individual capacity but solely as
Owner Trustee
By:
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Printed Name:
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Title:
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EXHIBIT B
FORM OF TRUST CERTIFICATE
[TO BE INSERTED ON CEDE & CO. CERTIFICATE -
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE 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.]
THIS TRUST CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES TO THE
EXTENT DESCRIBED IN THE SALE AND SERVICING AGREEMENT AND INDENTURE REFERRED TO
HEREIN.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
DEALER AUTO RECEIVABLES CORP., PREMIER AUTO FINANCE, INC. OR ANY AFFILIATE
THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE TRUST AGREEMENT.
DEALER AUTO RECEIVABLES OWNER TRUST 2000-1
NO. ___________ Initial Trust Certificate
Principal Balance $______________
Fractional Interest _________%
THIS CERTIFIES THAT __________ is the registered owner of equity
$_____________ nonassessable, fully-paid, fractional undivided interest in the
Dealer Auto Receivables Owner Trust 2000-1 (the "TRUST") formed by Dealer Auto
Receivables Corp., a Delaware corporation (the "DEPOSITOR").
The Trust was created pursuant to a Trust Agreement, dated as of
_________, 2000 (as amended and supplemented from time to time, the "TRUST
AGREEMENT"), between Dealer Auto Receivables Corp. as Depositor (the
"DEPOSITOR") and ________________, as owner trustee (the "OWNER TRUSTEE"), a
summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings
assigned to them in (i) the Trust Agreement, (ii) the Sale and
Servicing Agreement, dated as of ___________, 2000 (the "SALE AND SERVICING
AGREEMENT"), among the Trust, the Depositor, Premier Auto Finance, Inc., as
Servicer (in such capacity, the "SERVICER") and The Bank of New York, as
Indenture Trustee (the "Indenture Trustee") or (iii) the Indenture, dated as of
__________, 2000 (the "INDENTURE"), between the Trust and the Indenture Trustee.
This Trust Certificate is one of the duly authorized Trust Certificates
designated as "___% DEALER AUTO RECEIVABLES ASSET-BACKED CERTIFICATES" (the
"TRUST CERTIFICATES"). Also issued under the Indenture are four classes of notes
designated as "___% DEALER AUTO RECEIVABLES ASSET-BACKED NOTES, CLASS A-1,"
"___% DEALER AUTO RECEIVABLES ASSET-BACKED NOTES, CLASS A-2," "____% DEALER AUTO
RECEIVABLES ASSET-BACKED NOTES, CLASS A-3," and "____% DEALER AUTO RECEIVABLES
ASSET-BACKED NOTES, CLASS B" (collectively, the "NOTES"). This Trust Certificate
is issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, to which Trust Agreement the Holder of this Trust Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
The property of the Trust includes, among other things, (i) all the right, title
and interest of the Depositor in and to the Contracts listed on the List of
Contracts in effect on the Closing Date (including, without limitation, all
security interests and all rights to receive scheduled payments and prepayments
which are collected pursuant thereto on or after the Cutoff Date, including any
liquidation proceeds therefrom, but excluding any rights to receive scheduled
payments due on or after, but received prior to, the Cutoff Date), (ii) all
security interests in each Financed Vehicle, (iii) all rights of the Depositor
to proceeds from any claims on theft, physical damage, credit life or disability
insurance or other individual insurance policy relating to any such Contract, an
Obligor or a Financed Vehicle securing such Contract, (iv) all documents
contained in the related Contract Files, (v) all rights (but not the
obligations) of the Depositor against any originating dealer or other third
party (i.e. the originators of the Contracts) under any agreements between the
Seller and such originating dealers or other third party, (vi) all rights of the
Depositor in the Lockbox, the Lockbox Account and related Lockbox Agreement to
the extent they relate to such Contracts, (vii) any rebates of premiums and
other amounts relating to insurance policies, extended service contracts, other
repair agreements or any other items financed under such Contract, (viii) all
rights (but not the obligations) of the Depositor under the Transfer and Sale
Agreement, including but not limited to the Depositor's rights under ARTICLE V
thereof, (ix) all rights of the Depositor under the Performance Guarantee, (x)
the remittances, deposits and payments made into the Trust Accounts from time to
time and amounts in the Trust Accounts (other than the Reserve Fund) from time
to time (and any investments of such amounts), and (xi) all proceeds and
products of the foregoing.
Under the Trust Agreement, there will be distributed on the [ ] day of
each month or if such day is not a Business Day the next succeeding Business Day
commencing [ ], 2000 (each, a "DISTRIBUTION Date") and ending no later than the
Distribution Date in ___ to the person in whose name this Trust Certificate is
registered as of the last Business Day immediately preceding the calendar month
in which such Distribution Date occurs (each, a "RECORD DATE"),
such Certificateholder's fractional undivided interest in the amount to be
distributed to Certificateholders on such Distribution Date.
The holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders to the extent described in the
Sale and Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer, the Depositor, Owner
Trustee, Indenture Trustee and the Certificateholders that, for purposes of
federal income, state and local income and single business tax and any other
income taxes, the Trust will be treated as a partnership and the
Certificateholders (including the Depositor) will be treated as partners in that
partnership. The Depositor and the other Certificateholders, by acceptance of a
Trust Certificate, agree to treat, and to take no action inconsistent with the
treatment of, the Trust Certificates for such tax purposes as partnership
interests in the Trust and the Certificateholders (including the Depositor) as
partners in that partnership.
Each Certificateholder, by its acceptance of a Trust Certificate or
beneficial interest in a Trust Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Trust or the
Depositor, or join in any institution against the Trust or the Depositor, or the
Servicer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificates, the Notes, the Trust Agreement or any of the other
Transaction Documents.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee or its Agent by wire transfer or check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Trust Certificate or the making of any
notation hereon, except that with respect to Trust Certificates registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Except as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Trust Certificate will be made after due notice by
the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Trust Certificate at the office or agency
maintained for that purpose by the Owner Trustee in the City of New York, New
York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Trust Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or any other Transaction Document or be valid for any
purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
[REVERSE OF CERTIFICATE]
The Trust Certificate does not represent an obligation of, or an
interest in the Depositor, Premier Auto Finance, L.P., as the Seller or Premier
Auto Finance, Inc., as the Servicer, the Owner Trustee, the Indenture Trustee or
any of their respective Affiliates and no recourse may be had against such
parties or their assets, except as expressly set forth or contemplated herein or
in the Trust Agreement or the other Transaction Documents. In addition, this
Trust Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Contracts and certain other amounts, in each case
as more specifically set forth herein and in the Sale and Servicing Agreement. A
copy of each of the Sale and Servicing Agreement and the Trust Agreement may be
examined by any Certificateholder upon written request during normal business
hours at the principal office of the Depositor and at such other places, if any,
designated by the Depositor.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee with the consent of Noteholders
of more than 50% of the aggregate principal amount of the Class A-1 Notes, Class
A-2 Notes and Class A-3 Notes, or, if there are no Class A-1 Notes, Class A-2
Notes or Class A-3 Notes outstanding, with the consent of Noteholders of more
than 50% of the aggregate principal amount of the Class B Notes, or, if there
are no Notes outstanding, with the consent of Certificateholders of more than
50% of the Certificate Balance. Any such consent by the Holder of this Trust
Certificate shall be conclusive and binding on such Holder and on all future
Holders of this Trust Certificate and of any Trust Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Trust Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the Holders of any of the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in the
Certificate Register upon surrender of this Trust Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in New York, New York, accompanied by a written instrument
of transfer in form satisfactory to the Owner Trustee and the Certificate
Registrar in Chicago, Illinois executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Trust
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is
[___________________].
Except as provided in the Trust Agreement, the Trust Certificates are
issuable only as registered Trust Certificates without coupons in denominations
of $1,000 and in integral multiples of $1,000 in excess thereof. As provided in
the Trust Agreement and subject to certain
limitations therein set forth, Trust Certificates are exchangeable for new Trust
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Trust Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the Sale and Servicing Agreement and the deposition of all property held as part
of the Trust Estate. The Seller may at its option purchase the Trust Estate at a
price specified in the Sale and Servicing Agreement, and such purchase of the
Contracts and other property of the Trust will affect early retirement of the
Trust Certificates; however, such right of purchase is exercisable only as of
any Distribution Date on which the unpaid Aggregate Principal Balance is less
than 10% of the Aggregate Principal Balance as of the Cutoff Date.
The Trust Certificates may not be acquired by a Benefit Plan. By
accepting and holding this Trust Certificate, the Holder hereof or, in the case
of Book-Entry Trust Certificate, by accepting a beneficial interest in this
Trust Certificate, the related Certificate Owner, shall be deemed to have
represented and warranted that it is not a Benefit Plan and is not acquiring
this Trust Certificate or an interest therein for the account of such an entity.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Trust Certificate to be duly
executed.
Dated: DEALER AUTO RECEIVABLES OWNER
TRUST 2000-1
By: ____________________, not in its individual
capacity but solely as Owner Trustee
By: ____________________
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned Trust Agreement.
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not in its individual capacity but solely
as Owner Trustee
By:
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Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
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the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
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to transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
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Signature Guaranteed:
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NOTICE: Signature(s) must be guaranteed NOTICE: The signature to this
by an eligible guarantor institution. assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Trust Certificate in every
particular, without alteration or
enlargement or any change whatever.