Exhibit 4.3
Volkswagen Auto Lease Underwritten Funding, LLC
Seller,
VW Credit, Inc.
Servicer
and
----------
Trustee
on behalf of the Holders
FORM OF POOLING AND SERVICING AGREEMENT
Dated as of ________ __, 200_
VOLKSWAGEN AUTO LOAN ENHANCED TRUST 200_-_
____% Asset Backed Certificates, Class A
____% Asset Backed Certificates, Class B
TABLE OF CONTENTS
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.................................................... 1
Section 1.1 Definitions........................................... 1
Section 1.2 Other Interpretative Provisions....................... 19
Section 1.3 Calculations.......................................... 20
Section 1.4 References............................................ 20
Section 1.5 Action by or Consent of Holders....................... 20
ARTICLE II THE TRUST PROPERTY............................................ 20
Section 2.1 Conveyance of Trust Property.......................... 20
Section 2.2 Representations and Warranties as to Each Receivable.. 20
Section 2.3 Representations and Warranties as to the Receivables
in the Aggregate...................................... 23
Section 2.4 Repurchase upon Breach................................ 24
Section 2.5 Custodian of Receivable Files......................... 25
ARTICLE III ADMINISTRATION AND SERVICING OF TRUST PROPERTY............... 28
Section 3.1 Duties of Servicer.................................... 28
Section 3.2 Collection of Receivable Payments..................... 29
Section 3.3 Realization upon Receivables.......................... 29
Section 3.4 Physical Damage Insurance............................. 30
Section 3.5 Maintenance of Security Interests in Financed
Vehicles.............................................. 30
Section 3.6 Covenants of Servicer................................. 31
Section 3.7 Purchase by Servicer upon Breach...................... 31
Section 3.8 Servicing Compensation................................ 32
Section 3.9 Servicer's Report..................................... 32
Section 3.10 Annual Statement as to Compliance..................... 33
Section 3.11 Annual Independent Certified Public Accountants'
Report................................................ 33
Section 3.12 Access to Certain Documentation and Information
Regarding Receivables................................. 33
Section 3.13 Reports to the Commission............................. 34
Section 3.14 Reports to the Rating Agency.......................... 34
Section 3.15 Servicer Expenses..................................... 34
ARTICLE IV DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO HOLDERS......... 34
Section 4.1 Establishment of Accounts............................. 34
Section 4.2 Collections........................................... 35
Section 4.3 [RESERVED]............................................ 37
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Section 4.4 Additional Deposits; Net Deposits..................... 37
Section 4.5 Distributions......................................... 37
Section 4.6 Reserve Account....................................... 39
Section 4.7 Statements to Holders................................. 41
ARTICLE V THE CERTIFICATES............................................... 42
Section 5.1 The Certificates...................................... 42
Section 5.2 Authentication of Certificates........................ 43
Section 5.3 Registration of Transfer and Exchange of
Certificates.......................................... 43
Section 5.4 Mutilated, Destroyed, Lost or Stolen Certificates..... 44
Section 5.5 Persons Deemed Owners................................. 44
Section 5.6 Access to List of Holders' Names and Addresses........ 44
Section 5.7 Maintenance of Office or Agency....................... 45
Section 5.8 Book Entry Certificates............................... 45
Section 5.9 Notices to Clearing Agency............................ 46
Section 5.10 Definitive Certificates............................... 46
ARTICLE VI SELLER........................................................ 47
Section 6.1 Representations and Warranties of Seller.............. 47
Section 6.2 Merger or Consolidation of, or Assumption of the
Obligations of, Seller................................ 48
Section 6.3 Limitation on Liability of Seller and Others.......... 49
ARTICLE VII SERVICER..................................................... 49
Section 7.1 Representations and Warranties of Servicer............ 49
Section 7.2 Indemnities of Servicer............................... 51
Section 7.3 Merger or Consolidation of or Assumption of the
Obligations of Servicer............................... 52
Section 7.4 Limitation on Liability of Servicer and Others........ 52
Section 7.5 VW Credit, Inc........................................ 53
Section 7.6 Servicer May Own Certificates......................... 53
Section 7.7 Existence............................................. 53
ARTICLE VIII SERVICING TERMINATION....................................... 53
Section 8.1 Servicer Termination Events........................... 53
Section 8.2 Trustee to Act; Appointment of Successor Servicer..... 55
Section 8.3 Effect of Servicing Transfer.......................... 56
Section 8.4 Notification to Holders............................... 57
Section 8.5 Waiver of Past Servicer Termination Events............ 57
Section 8.6 Transfer of Accounts.................................. 57
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ARTICLE IX TRUSTEE....................................................... 57
Section 9.1 Acceptance by Trustee................................. 57
Section 9.2 Duties of Trustee..................................... 57
Section 9.3 Trustee's Certificate................................. 59
Section 9.4 Trustee's Assignment of Purchased Receivables......... 59
Section 9.5 Certain Matters Affecting Trustee..................... 60
Section 9.6 Trustee Not Liable for Certificates or Receivables.... 62
Section 9.7 Trustee May Own Certificates.......................... 63
Section 9.8 Trustee's Fees and Expenses........................... 63
Section 9.9 Eligibility Requirements for Trustee.................. 63
Section 9.10 Resignation or Removal of Trustee..................... 63
Section 9.11 Successor Trustee..................................... 64
Section 9.12 Merger or Consolidation of or Assumption of
Obligations of Trustee................................ 65
Section 9.13 Appointment of Co-Trustee or Separate Trustee......... 65
Section 9.14 Representations and Warranties of Trustee............. 67
Section 9.15 Reports by Trustee.................................... 68
Section 9.16 Tax Returns........................................... 68
Section 9.17 Trustee May Enforce Claims Without Possession of
Certificates.......................................... 68
ARTICLE X TERMINATION.................................................... 68
Section 10.1 Termination of the Trust.............................. 68
Section 10.2 Optional Purchase of All Receivables.................. 69
ARTICLE XI MISCELLANEOUS PROVISIONS...................................... 70
Section 11.1 Amendment............................................. 70
Section 11.2 Protection of Title to Trust Property................. 71
Section 11.3 Limitation on Rights of Holders....................... 73
Section 11.4 Governing Law......................................... 74
Section 11.5 Notices............................................... 74
Section 11.6 Severability of Provisions............................ 74
Section 11.7 Assignment............................................ 74
Section 11.8 Certificates Nonassessable and Fully Paid............. 74
Section 11.9 Intention of Parties.................................. 75
Section 11.10 Counterparts.......................................... 75
Section 11.11 Further Assurances.................................... 75
Section 11.12 No Waiver; Cumulative Remedies........................ 75
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Section 11.13 Regulation AB......................................... 75
Section 11.14 Information to Be Provided by the Trustee............. 76
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SCHEDULE
SCHEDULE A LOCATION OF RECEIVABLE FILES................................. S-1
EXHIBITS
EXHIBIT A FORM OF CLASS A CERTIFICATE.................................. A-1
EXHIBIT B FORM OF CLASS B CERTIFICATE.................................. B-1
EXHIBIT C FORM OF SERVICER'S REPORT.................................... C-1
EXHIBIT D SERVICING CRITERIA........................................... D-1
EXHIBIT E FORM OF TRUSTEE'S ANNUAL CERTIFICATION....................... E-1
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POOLING AND SERVICING AGREEMENT dated as of ____________, 200_,
between Volkswagen Auto Lease Underwritten Funding, LLC, a Delaware limited
liability company, as Seller, VW Credit, Inc., a Delaware corporation, as
Servicer, and __________, a ______________________, as trustee hereunder.
In consideration of the premises and of the mutual agreements herein
contained, and other good and valuable consideration, the receipt of which is
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS.
Section 1.1 Definitions. Whenever used in this Agreement, the
following capitalized words and phrases, unless the context otherwise requires,
have the following meanings:
"Accounts" means collectively the Collection Account, the Class A
Distribution Account, the Class B Distribution Account and the Payahead Account.
"Account Property" means all amounts and investments held from time to
time in any Account or the Reserve Account, as the case may be (whether in the
form of deposit accounts, instruments, certificated securities, book entry
securities, uncertificated securities or otherwise), and all proceeds of the
foregoing.
"Actuarial Receivable" means a Receivable that provides for (i)
amortization of the loan over a series of fixed level payment monthly
installments and (ii) each monthly installment, including the monthly
installment representing the final payment on the Receivable, to consist of an
amount of interest equal to 1/12 of the Contract Rate of the loan multiplied by
the unpaid principal balance of the loan, and an amount of principal equal to
the remainder of the monthly installment.
"Acquired Receivable" means a Receivable acquired by a the Transferor
through a bulk purchase of Receivables or the acquisition of a financial
institution that owned the Receivable.
"Additional Servicing" means, for each Distribution Date, an amount
equal to the lesser of (i) the amount by which (A) the aggregate amount of the
Servicing Fee for such Distribution Date and all prior Distribution Dates
exceeds (B) the aggregate amount of Additional Servicing paid to the Servicer on
all prior Distribution Dates and (ii) the amount, if any, by which (A) the sum
of Available Interest and Available Principal for such Distribution Date exceed
(B) the sum, without duplication of (x) the Servicing Fee paid on such
Distribution Date with respect to the related Collection Period and any accrued
and unpaid Servicing Fee for prior Collection Periods, (y) all amounts required
to be distributed to the Holders on such
Distribution Date and (z) the amount, if any, deposited in the Reserve Account
on such Distribution Date.
"Administration Agreement" means the Administration Agreement dated as
of _______, 200_ by and among the Trust, the Administrator and the Indenture
Trustee as amended, restated and otherwise modified from time to time
"Administrator" means VW Credit in its capacity as administrator of
the Trust under the Administration Agreement, and any successor thereto.
"Affiliate" means, with respect to any specified Person, any other
Person controlling, controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. A Person shall not be
deemed to be an Affiliate of any specified Person solely because such other
Person has the contractual right or obligation to manage such specified Person
or act as servicer with respect to the financial assets of such specified Person
unless such other Person controls the specified Person through equity ownership
or otherwise.
"Agreement" means this Pooling and Servicing Agreement, including its
schedules and exhibits, as amended, modified or supplemented from time to time.
"Authorized Officer" means any officer within the Corporate Trust
Office of Trustee, including any vice president, assistant vice president,
secretary, assistant secretary or any other officer of Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Available Interest" means, for any Distribution Date, the sum of the
following amounts for the related Collection Period: (a) that portion of the
Collections on the Receivables received during the such Collection Period that
is allocable to interest in accordance with Servicer's customary servicing
procedures, (b) all Liquidation Proceeds received during the related Collection
Period and (c) the Purchase Amounts, to the extent allocable to accrued
interest, of all Receivables that are purchased by Servicer as of the last day
of the related Collection Period. "Available Interest" for any Distribution Date
shall exclude all payments and proceeds of any Receivables the Purchase Amount
of which has been distributed on a prior Distribution Date.
"Available Principal" means, for any Distribution Date the sum of the
following amounts with respect to the related Collection Period: (a) that
portion of all Collections on the Receivables received during such Collection
Period that is allocable to principal in accordance
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with Servicer's customary servicing procedures; and (b) the Purchase Amounts, to
the extent attributable to principal, of all Receivables purchased by Servicer
as of the last day of the related Collection Period. "Available Principal" on
any Distribution Date shall exclude all payments and proceeds of any Receivables
the Purchase Amount of which has been distributed on a prior Distribution Date.
"Available Reserve Amount" is defined in Section 4.6.
"Book Entry Certificate" means beneficial interests in the definitive
Certificates described in Section 5.8, the ownership of which shall be
evidenced, and transfers of which shall be made, through book entries by a
Clearing Agency as described in Section 5.8.
"Business Day" means a day that is not a Saturday or a Sunday and that
in the States of New York, Illinois, Michigan and the State in which the
Corporate Trust Office is located is neither a legal holiday nor a day on which
banking institutions are authorized by law, regulation or executive order to be
closed.
"Certificate" means any Class A Certificate or Class B Certificate.
"Certificate Owner" means, with respect to a Book Entry Certificate,
the Person who is the owner of such Book Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules, regulations and procedures of such Clearing Agency).
"Certificate Register" means the register maintained by Trustee for
the registration of Certificates and of transfers and exchanges of Certificates
as provided in Section 5.3.
"Class A Certificate" means a certificate executed by Trustee on
behalf of the Trust and authenticated by Trustee substantially in the form of
Exhibit A.
"Class A Certificate Balance" means, at any time, the original Class A
Certificate Balance, as reduced by all amounts allocable to principal on the
Class A Certificates distributed to Class A Holders prior to such time.
"Class A Certificate Rate" means ____% per annum, calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Class A Distribution Account" means the account established,
maintained and designated as the "Class A Distribution Account" pursuant to
Section 4.1.
"Class A Holder" means the Person in whose name a Class A Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent, request or waiver pursuant to this Agreement, the
interest evidenced by any Class A Certificate
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registered in the name of the Transferor, Servicer, or any Person actually known
to an Authorized Officer of Trustee to be an Affiliate, the Transferor, or
Servicer, shall not be taken into account in determining whether the requisite
percentage necessary to effect any such consent, request or waiver shall have
been obtained.
"Class A Interest Carryover Shortfall" means, (a) with respect to the
initial Distribution Date, zero, and (b) with respect to any other Distribution
Date, the excess of Class A Monthly Interest for the preceding Distribution Date
and any outstanding Class A Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that is actually
deposited in the Class A Distribution Account on such preceding Distribution
Date, plus 30 days of interest on such excess, to the extent permitted by law,
in an amount equal to the product of one-twelfth multiplied by the Class A
Certificate Rate multiplied by the amount of such excess.
"Class A Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of (a) the Class A Monthly Interest for such
Distribution Date and (b) the Class A Interest Carryover Shortfall for such
Distribution Date.
"Class A Monthly Interest" means, for any Distribution Date, an amount
equal to one-twelfth (or the actual number of days from and including the
Closing Date to but excluding _____________, 200_ divided by 360, for the
initial Distribution Date) of the Class A Certificate Rate multiplied by the
Class A Certificate Balance as of the close of business on the immediately
preceding Distribution Date, after giving effect to all payments of principal to
the Class A Certificates on or prior to such Distribution Date (or, in the case
of the first Distribution Date, the Original Class A Certificate Balance).
"Class A Monthly Principal" means, with respect to any Distribution
Date, the Class A Percentage of Available Principal for such Distribution Date
plus the Class A Percentage of Realized Losses with respect to the related
Collection Period.
"Class A Percentage" means _____%.
"Class A Pool Factor" means, with respect to any Distribution Date,
the Class A Certificate Balance as of the close of business on such Distribution
Date (after giving effect to any payments to be made on such Distribution Date)
divided by the Original Class A Certificate Balance, expressed as a seven-digit
decimal.
"Class A Principal Carryover Shortfall" means, as of the close of
business on any Distribution Date, the excess of Class A Monthly Principal for
such Distribution Date and any outstanding Class A Principal Carryover Shortfall
from the preceding Distribution Date over the amount in respect of principal
that is actually deposited in the Class A Distribution Account on such
Distribution Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of Class A Monthly Principal for such Distribution
Date and, in the case of any
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Distribution Date other than the initial Distribution Date, the Class A
Principal Carryover Shortfall as of the close of business on the preceding
Distribution Date; provided that the Class A Principal Distributable Amount
shall not exceed the Class A Certificate Balance prior to such Distribution
Date. In addition, on the Final Scheduled Distribution Date, the Class A
Principal Distributable Amount shall include, to the extent not included under
the preceding sentence, the amount that is necessary (after giving effect to the
other amounts to be deposited in the Class A Distribution Account on such
Distribution Date and allocable to principal) to reduce the Class A Certificate
Balance to zero.
"Class B Certificate" means a certificate executed by Trustee on
behalf of the Trust and authenticated by Trustee substantially in the form of
Exhibit B.
"Class B Certificate Balance" means, at any time, the Original Class B
Certificate Balance, as reduced by all amounts allocable to principal on the
Class B Certificates distributed to Class B Holders prior to such time.
"Class B Certificate Owner" means, with respect to a Book Entry
Certificate representing a beneficial interest in the Class B Certificates, the
Person who is the owner of such Book Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant in accordance
with the rules, regulations and procedures of such Clearing Agency).
"Class B Certificate Rate" means ____% per annum, calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Class B Distribution Account" means the account established,
maintained and designated as the "Class B Distribution Account" pursuant to
Section 4.1.
"Class B Holder" means the Person in whose name a Class B Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent, request or waiver pursuant to this Agreement, the
interest evidenced by any Class B Certificate registered in the name of the
Transferor, Servicer, or any Person actually known to an Authorized Officer of
Trustee to be an Affiliate of the Transferor or Servicer, shall not be taken
into account in determining whether the requisite percentage necessary to effect
any such consent, request or waiver shall have been obtained.
"Class B Interest Carryover Shortfall" means, (a) with respect to the
initial Distribution Date, zero, and (b) with respect to any other Distribution
Date, the excess of Class B Monthly Interest for the preceding Distribution Date
and any outstanding Class B Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that is actually
deposited in the Class B Distribution Account on such preceding Distribution
Date, plus 30 days of interest on such excess, to the extent permitted by law,
in an amount equal to the product of one-twelfth multiplied by the Class B
Certificate Rate multiplied by the amount of such excess.
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"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of (a) the Class B Monthly Interest for such
Distribution Date and (b) the Class B Interest Carryover Shortfall for such
Distribution Date.
"Class B Monthly Interest" means, for any Distribution Date, an amount
equal to one-twelfth (or the actual number of days from and including the
Closing Date to but excluding __________, 200_ divided by 360, for the initial
Distribution Date) of the Class B Certificate Rate multiplied by the Class B
Certificate Balance as of the close of business on the immediately preceding
Distribution Date, after giving effect to all payments of principal to the Class
B Certificates on or prior to such Distribution Date (or, in the case of the
first Distribution Date, the Certificate Balance on the Closing Date).
"Class B Monthly Principal" means, with respect to any Distribution
Date, the Class B Percentage of Available Principal for such Distribution Date
plus the Class B Percentage of Realized Losses with respect to the related
Collection Period.
"Class B Percentage" means __%.
"Class B Pool Factor" means, with respect to any Distribution Date,
the Class B Certificate Balance as of the close of business on such Distribution
Date (after giving effect to any payments to be made on such Distribution Date)
divided by the Original Class B Certificate Balance, expressed as a seven-digit
decimal.
"Class B Principal Carryover Shortfall" means, as of the close of
business on any Distribution Date, the excess of Class B Monthly Principal for
such Distribution Date and any outstanding Class B Principal Carryover Shortfall
from the preceding Distribution Date over the amount in respect of principal
that is actually deposited in the Class B Distribution Account on such
Distribution Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of Class B Monthly Principal for such Distribution
Date and, in the case of any Distribution Date other than the initial
Distribution Date, the Class B Principal Carryover Shortfall as of the close of
business on the preceding Distribution Date; provided that the Class B Principal
Distributable Amount shall not exceed the Class B Certificate Balance prior to
such Distribution Date. In addition, on the Final Scheduled Distribution Date,
the Class B Principal Distributable Amount shall include, to the extent not
included under the preceding sentence, the amount that is necessary (after
giving effect to the other amounts to be deposited in the Class B Distribution
Account on such Distribution Date and allocable to principal) to reduce the
Class B Certificate Balance to zero.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act, as amended.
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"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 of securities deposited with the Clearing
Agency.
"Closing Date" means the date of the initial issuance of the
Certificates hereunder.
"Code" means the Internal Revenue Code of 1986 and the Treasury
Regulations promulgated thereunder.
"Collection Account" means the segregated account or accounts
established, maintained and designated as the "Collection Account" pursuant to
Section 4.1.
"Collection Period" means, (a) in the case of the initial Collection
Period, the period from [but not including] the Cutoff Date to and including
___________ __, 200_ and (b) thereafter, each calendar month during the term of
this Pooling and Servicing Agreement. With respect to any Determination Date,
Deposit Date or Distribution Date, the "related Collection Period" means the
Collection Period preceding the month in which such Determination Date, Deposit
Date or Distribution Date occurs.
"Collections" means all collections on the Receivables and any
proceeds from Insurance Policies and lender's single interest insurance
policies.
"Commission" means the Securities and Exchange Commission.
"Contract Rate" means, with respect to a Receivable, the rate per
annum of interest charged on the outstanding principal balance of such
Receivable.
"Corporate Trust Office" means the principal office of Trustee at
which at any particular time its corporate trust business shall be administered,
which office at date of execution of this Agreement is located at ____________,
Attention: ______________, Telephone: _______________, Facsimile:
________________ or at such other address as Trustee may designate from time to
time by notice to the Holders, the Transferor, Seller and Servicer, or the
principal corporate trust office of any successor Trustee (the address of which
the successor Trustee will notify the Holders, the Transferor, Seller and
Servicer).
"Custodian" means Servicer in its capacity as agent of the Trustee, as
custodian of the Receivable Files and the Transferor acting as agent for
Servicer for the purpose of maintaining custody of the Receivables Files.
"Cutoff Date" means the [opening] of business on ___________ __,
200_.
"Cutoff Date Principal Balance" means, with respect to any Receivable,
the Initial Principal Balance of such Receivable minus the sum of the portion of
all payments received
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under such Receivable from or on behalf of the related Obligor on or prior to
the Cutoff Date and allocable to principal in accordance with the terms of the
Receivable.
"Dealer" means, with respect to any Receivable, the seller of the
related Financed Vehicle.
"Dealer Agreement" means an agreement between an Originator and a
Dealer pursuant to which such Originator acquires Motor Vehicle Loans from the
Dealer or gives such Dealer the right to induce persons to apply to such
Originator for loans in connection with the retail sale of Motor Vehicles by
such Dealer.
"Dealer Recourse" means, with respect to any Dealer, any rights and
remedies against such Dealer under the related Dealer Agreement (other than with
respect to any breach of representation or warranty thereunder) with respect to
credit losses on a Receivable secured by a Financed Vehicle sold by such Dealer.
"Defaulted Receivable" means, with respect to any Collection Period, a
Receivable (other than a Purchased Receivable) which Servicer has determined to
charge off during such Collection Period in accordance with its customary
servicing practices; provided that any Receivable which Servicer is obligated to
repurchase or purchase shall be deemed to have become a Defaulted Receivable
during a Collection Period if Servicer fails to deposit the related Purchase
Amount on the related Deposit Date when due.
"Definitive Certificates" is defined in Section 5.8.
"Delivery" when used with respect to Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-102(47) of
the UCC and are susceptible of physical delivery, transfer thereof to
Trustee or its nominee or custodian by physical delivery to Trustee or
its nominee or custodian endorsed to, or registered in the name of,
Trustee or its nominee or custodian or endorsed in blank, and, with
respect to a "certificated security" (as defined in Section 8-102 of
the UCC) transfer thereof (i) by delivery of such certificated
security endorsed to, or registered in the name of, Trustee or its
nominee or custodian or endorsed in blank to a "financial
intermediary" (as defined in Section 8-313 of the UCC) and the making
by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to Trustee or
its nominee or custodian and the sending by such financial
intermediary of a confirmation of the purchase of such certificated
security by Trustee or its nominee or custodian, or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(3) of
the UCC) and the making by such clearing corporation of appropriate
entries on its books reducing the appropriate
8
securities account of the transferor and increasing the appropriate
securities account of a financial intermediary by the amount of such
certificated security, the identification by the clearing corporation
of the certificated securities for the sole and exclusive account of
the financial intermediary, the maintenance of such certificated
securities by such clearing corporation or a "custodian bank" (as
defined in Section 8-102(4) of the UCC) or the nominee of either
subject to the clearing corporation's exclusive control, the sending
of a confirmation by the financial intermediary of the purchase by
Trustee or its nominee or custodian of such securities and the making
by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to Trustee or
its nominee or custodian (all of the foregoing, "Physical Property"),
and, in any event, any such Physical Property in registered form shall
be in the name of Trustee or its nominee or custodian; and such
additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Account Property to Trustee or its nominee or custodian, consistent
with changes in applicable law or regulations or the interpretation
thereof;
(b) with respect to any securities issued by the U.S. Treasury,
the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book-entry security held through the
Federal Reserve System pursuant to Federal book-entry regulations, the
following procedures, all in accordance with applicable law, including
applicable Federal regulations and Articles 8 and 9 of the UCC:
book-entry registration of such Account Property to an appropriate
book-entry account maintained with a Federal Reserve Bank by a
financial intermediary which is also a "depository" pursuant to
applicable Federal regulations and issuance by such financial
intermediary of a deposit advice or other written confirmation of such
book-entry registration to Trustee or its nominee or custodian of the
purchase by Trustee or its nominee or custodian of such book-entry
securities; the making by such financial intermediary of entries in
its books and records identifying such book entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations as belonging to Trustee or its nominee or custodian and
indicating that such custodian holds such Account Property solely as
agent for Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Account Property to Trustee
or its nominee or custodian, consistent with changes in applicable law
or regulations or the interpretation thereof; and
(c) with respect to any item of Account Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of
the issuer thereof in the name of the financial intermediary, the
sending of a confirmation by the financial intermediary of the
purchase by Trustee or its nominee or custodian of
9
such uncertificated security, the making by such financial
intermediary of entries on its books and records identifying such
uncertificated certificates as belonging to Trustee or its nominee or
custodian.
"Deposit Date" means, with respect to any Collection Period, the
Business Day preceding the related Distribution Date.
"Depository Agreement" means the agreement among Seller, Servicer,
Trustee and the initial Clearing Agency, dated the Closing Date.
"Determination Date" with respect to any Collection Period, means the
tenth day of the calendar month following such Collection Period (or, if the
tenth day is not a Business Day, the next succeeding Business Day).
"Direct Loan" means motor vehicle promissory notes and security
agreements executed by an Obligor in favor of a motor vehicle lender.
"Distribution Date" means the _____ day of each month (or, if the ___
day is not a Business Day, the next succeeding Business Day), commencing _______
__, 200_.
"Dollar" and the sign "$" mean lawful money of the United States.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as the
long-term unsecured debt of such depository institution shall have a credit
rating from each Rating Agency in one of its generic rating categories which
signifies investment grade. Any such accounts (other than the Reserve Account)
may be maintained with _____________, or any of its Affiliates, if such accounts
meet the requirements described in clause (a) of the preceding sentence.
"Eligible Institution" means a depository institution (which may be
Servicer or any Affiliate of Servicer or Trustee) organized under the laws of
the United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), which (a) has (i) either a
long-term senior unsecured debt rating of AA or a short-term senior unsecured
debt or certificate of deposit rating of A-1+ or better by S&P and (ii) (A) a
short-term senior unsecured debt rating of A-1 or better by S&P and (B) a
short-term senior unsecured debt rating of P-1 or better by Moody's, or any
other long-term, short-term or certificate of deposit rating acceptable to the
Rating Agencies and (b) whose deposits are insured by the Federal Deposit
Insurance Corporation. If so qualified, Servicer, any Affiliate of Servicer or
Trustee may be considered an Eligible Institution.
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"Eligible Investments" shall mean any one or more of the following
types of investments:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution (including any Affiliate of the Transferor
Seller, Trustee or any Affiliate of the Trustee) or trust company
incorporated under the laws of the United States of America or any
state thereof or the District of Columbia (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or
state banking or depository institution authorities (including
depository receipts issued by any such institution or trust company as
custodian with respect to any obligation referred to in clause (a)
above or a portion of such obligation for the benefit of the holders
of such depository receipts); provided that at the time of the
investment or contractual commitment to invest therein (which shall be
deemed to be made again each time funds are reinvested following each
Distribution Date), the commercial paper or other short-term senior
unsecured debt obligations (other than such obligations the rating of
which is based on the credit of a Person other than such depository
institution or trust company) of such depository institution or trust
company shall have a credit rating from S&P of A-1+ and from Moody's
of P-1;
(c) commercial paper (including commercial paper of any Affiliate
of the Transferor Seller) having, at the time of the investment or
contractual commitment to invest therein, a rating from S&P of A-1+
and from Moody's of P-1;
(d) investments in money market funds (including funds for which
Trustee or any of its Affiliates or any of Seller's or Transferor's
Affiliates is investment manager or advisor) having a rating from S&P
of AAA-m or AAAm-and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) referred to in clause (b) above;
and
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(g) any other investment with respect to which each Rating Agency
has provided written notice that such investment would not cause such
Rating Agency to downgrade or withdraw its then current rating on the
Class A Certificates or the Class B Certificates.
"Eligible Servicer" means a Person which, at the time of its
appointment as Servicer, (a) has a net worth of not less than $50,000,000, (b)
is servicing a portfolio of motor vehicle retail installment sales contracts
and/or motor vehicle loans, (c) is legally qualified, and has the capacity, to
service the Receivables, (d) has demonstrated the ability to service a portfolio
of motor vehicle loans similar to the Receivables professionally and competently
in accordance with standards of skill and care that are consistent with prudent
industry standards, and (e) is qualified and entitled to use pursuant to a
license or other written agreement, and agrees to maintain the confidentiality
of, the software which Servicer uses in connection with performing its duties
and responsibilities under this Agreement or obtains rights to use, or develops
at its own expense, software which is adequate to perform its duties and
responsibilities under this Agreement.
"ERISA" means the Employment Retirement Income Security Act of 1974.
"Exchange Act" means the Securities Exchange Act of 1934.
"Final Scheduled Distribution Date" means the _______ __ Distribution
Date.
"Final Scheduled Maturity Date" means the last day of the Collection
Period immediately preceding the Collection Period during which the Final
Scheduled Distribution Date falls.
"Financed Vehicle" means, with respect to a Receivable, the Motor
Vehicle, together with all accessories and accessions thereto, securing or
purporting to secure the indebtedness under such Receivable.
"Fitch" means Fitch Ratings, or its successor.
"GAAP" is defined in Section 11.1(c).
"Holder" means the Person in whose name a Certificate is registered in
the Certificate Register, except that, solely for the purpose of giving any
consent, request or waiver pursuant to this Agreement, the interest evidenced by
any Certificate registered in the name of the Transferor, Servicer or any Person
actually known to an Authorized Officer of Trustee to be an Affiliate of the
Transferor or Servicer, shall not be taken into account in determining whether
the requisite percentage necessary to effect any such consent, request or waiver
shall have been obtained.
"Initial Principal Balance" means, in respect of a Receivable, the
amount advanced under the Receivable toward the purchase price of the Financed
Vehicle and related
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costs, including accessories, service and warranty contracts, insurance
premiums, other items customarily financed as part of retail motor vehicle loans
and/or retail installment sales contracts and other fees charged by the
Transferor or Dealer and included in the amount to be financed, the total of
which is shown as the initial principal balance in the note and security
agreement or retail installment sale contract evidencing and securing such
Receivable.
"Insurance Policies" means, all credit life and disability insurance
policies maintained by the Obligors and all Physical Damage Insurance Policies.
"Lien" means a security interest, lien, charge, pledge, preference,
participation interest or encumbrance of any kind, other than liens for taxes
not yet due and payable, mechanics' or materialmen's liens and other liens for
work, labor or materials, and any other liens that may attach by operation of
law.
"Liquidation Proceeds" means, with respect to any Receivable which has
become a Defaulted Receivable, (a) insurance proceeds received by Servicer with
respect to the Insurance Policies, (b) amounts received by Servicer in
connection with such Defaulted Receivable pursuant to the exercise of rights
under that Receivable and (c) the monies collected by Servicer (from whatever
source, including proceeds of a sale of a Financed Vehicle or a deficiency
balance recovered after the charge-off of the related Receivable or as a result
of any Dealer Recourse) on such Defaulted Receivable net of any expenses
incurred by Servicer in connection therewith and any payments required by law to
be remitted to the Obligor.
"Majority Holders" means Holders of Certificates evidencing not less
than a majority of the aggregate outstanding principal balance of the Class A
Certificates and the Class B Certificates taken together as a single class.
"Minimum Specified Reserve Balance" with respect to any Distribution
Date means the lesser of (i) $______ and (ii) the aggregate outstanding Class A
Certificate Balance and Class B Certificate Balance (after giving effect to any
distributions on the Certificates on such Distribution Date).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Motor Vehicle" means a new or used automobile or light duty truck.
"Motor Vehicle Loan" means a Direct Loan or retail installment sales
contract secured by a Motor Vehicle originated by the Transferor or another
financial institution.
"Obligor" means, with respect to a Receivable, the borrower or
co-borrowers under the related Receivable and any co-signer of the Receivable or
other Person who owes or may be primarily or secondarily liable for payments
under such Receivable.
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"Officer's Certificate" means a certificate signed by the chairman,
the president, any vice president or the treasurer of the Transferor or
Servicer, as the case may be, and delivered to Trustee.
"Opinion of Counsel" means a written opinion of counsel (who may be an
employee of the Transferor or Servicer or any of their Affiliates) reasonably
acceptable in form to Trustee.
"Original Certificate Balance" means the sum of the Original Class A
Certificate Balance and the Original Class B Certificate Balance.
"Original Class A Certificate Balance" means $_________.
"Original Class B Certificate Balance" means $_________.
"Original Pool Balance" means the Pool Balance as of the Cutoff Date.
"Originator" means, with respect to any Direct Loan or retail
installment sales contract, the Transferor that was the lender with respect to
such Direct Loan or that acquired such Direct Loan or retail installment sales
contract from a Dealer or other Person.
"Payaheads" means early payments by or on behalf of Obligors on
Precomputed Receivables which, in accordance with the Servicer's customary
practices, do not constitute scheduled payments or full prepayments and are
applied to principal and interest in a subsequent period.
"Payahead Account" means the account designated as such, established
and maintained pursuant to Section 4.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Physical Damage Insurance Policy" means a theft and physical damage
insurance policy maintained by the Obligor under a Receivable, providing
coverage against loss or damage to or theft of the related Financed Vehicle.
"Pool Balance" means, at any time, the aggregate Principal Balance of
the Receivables (excluding Defaulted Receivables) at such time.
"Pool Factor" means, with respect to any Collection Period, the Pool
Balance as of the last day of such Collection Period divided by the Original
Pool Balance, expressed as a seven-digit decimal.
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"Precomputed Receivable" means (i) an Actuarial Receivable, (ii) a
Rule of 78's Receivable or (iii) a Sum of Periodic Balances Receivable.
"Principal Balance" means, as of any time, for any Receivable, the
principal balance of such Receivable under the terms of the Receivable
determined in accordance with the Servicer's customary practices.
"Purchase Agreement" means each Purchase Agreement dated as of
________ __, 200_ by and between the Transferor and the Seller, as amended,
restated or otherwise modified from time to time.
"Purchase Amount" of any Receivable means, with respect to any Deposit
Date, an amount equal to the sum of (a) the outstanding Principal Balance of
such Receivable as of the last day of the preceding Collection Period and (b)
the amount of accrued and unpaid interest on such Principal Balance at the
related Contract Rate from the date a payment was last made by or on behalf of
the Obligor through and including the last day of such preceding Collection
Period, in each case after giving effect to the receipt of monies collected on
such Receivable in such preceding Collection Period.
"Purchased Receivable" means, at any time, a Motor Vehicle Loan
included in the Schedule of Receivables as to which payment of the Purchase
Amount has previously been made by the Transferor or Servicer pursuant to this
Agreement.
"Rating Agencies" means ▇▇▇▇▇'▇, S&P and Fitch.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof (or such
shorter period as shall be acceptable to the Rating Agencies) and that none of
the Rating Agencies shall have notified the Transferor Seller, Servicer or
Trustee in writing that such action will, in and of itself, result in a
reduction or withdrawal of the then current rating on the Class A Certificates
or the Class B Certificates.
"Realized Losses" means, for any Collection Period, the aggregate
Principal Balances of any Receivables that became Defaulted Receivables during
such Collection Period.
"Receivable" means each Motor Vehicle Loan described in the Schedule
of Receivables, but excluding (i) Defaulted Receivables to the extent the
Principal Balances thereof have been deposited in the Collection Account and
(ii) any Purchased Receivables.
"Receivable File" is defined in Section 2.5.
"Record Date" means, subject to Section 1.4, with respect to any
Distribution Date, the last day of the related Collection Period.
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"Regulation AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.110-229.1123, as such regulatiOn may be
amended from time to time and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(January 7, 2005)) or by the staff of the Commission, or as may be provided in
writing by the Commission or its staff from time to time.
"Related Agreements" means the Certificates, the Depository Agreement
and the underwriting agreement between Seller and the underwriter(s) of the
Certificates. The Related Agreements to be executed by any party are referred to
herein as "such party's Related Agreements", "its Related Agreements" or by a
similar expression.
"Required Rating" means a rating with respect to short term deposit
obligations of at least P-1 by Moody's and at least A-1 by S&P.
"Reserve Account" means the account established, maintained and
designated as the "Reserve Account" pursuant to Section 4.6.
"Reserve Account Initial Deposit" means cash or Eligible Investments
having a value of at least $____________.
"Reserve Account Property" is defined in Section 4.6.
"Responsible Officer" means, with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who, in each case, shall have direct responsibility for the
administration of the Agreement,
"Rule of 78's Receivable" means a Receivable that provides for the
payment by the Obligor of a specified total amount of payments, payable in equal
monthly installments on each due date, which total represents the principal
amount financed and add-on interest in an amount calculated at the stated
Contract Rate for the term of the Receivable and allocated to each monthly
payment based upon a fraction, the numerator of which is the number of payments
scheduled to have been made prior to the due date for such monthly payments on
such Receivable and the denominator of which is the sum of all such numbers of
payments to be made until the maturity of such Receivable.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
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"Schedule of Receivables" means, with respect to the Motor Vehicle
Loans to be conveyed to Seller by the Transferor and to Trustee by Seller, the
list identifying such retail Motor Vehicle Loans delivered to Trustee on the
Closing Date.
"Securities Act" means the Securities Act of 1933.
"Securities Intermediary" is defined in Section 4.6 of this Agreement.
"Seller" means Volkswagen Auto Lease Underwritten Funding, LLC, in its
capacity as seller of the Receivables to the Trust under this Agreement, or any
successor pursuant to Section 6.3.
"Servicer" means VW Credit, Inc., in its capacity as servicer of the
Receivables under this Agreement, any successor pursuant to Section 7.3 or any
successor Servicer appointed and acting pursuant to Section 8.2.
"Servicer Termination Event" means an event specified in Section 8.1.
"Servicer's Report" is defined in Section 3.9.
"Servicing Criteria" shall mean the "servicing criteria" set forth in
Item 1122(d) of Regulation AB.
"Servicing Fee" means, with respect to any Distribution Date, an
amount equal to the product of (a) one-twelfth of the Servicing Fee Rate,
multiplied by (b) the Pool Balance as of the beginning of the first day of the
preceding Collection Period.
"Servicing Fee Rate" shall be ___% per annum, calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"Servicing Officer" means any individual involved in, or responsible
for, the administration and servicing of the Receivables, whose name appears on
a list of servicing officers attached to an Officer's Certificate furnished to
Trustee by Servicer, as such list may be amended from time to time by Servicer
in writing.
"Simple Interest Method" means the method of allocating a fixed level
payment monthly installments between principal and interest, pursuant to which
such installment is allocated first to accrued and unpaid interest at the
Contract Rate on the unpaid principal balance and the remainder of such
installment is allocable to principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
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"Specified Reserve Account Balance" means, for any Distribution Date,
the greater of (a) ___% of the sum of the Class A Certificate Balance plus the
Class B Certificate Balance on such Distribution Date (after giving effect to
all payments on the Certificates to be made on or prior to such Distribution
Date), and (b) the Minimum Specified Reserve Balance as of such Distribution
Date.
"Sum of Periodic Balances Receivable" means a Receivable that provides
for the payment by the obligor of a specified total amount of payments, payable
in equal monthly installments on each due date, which total represents the
principal amount financed and add-on interest in an amount calculated at the
stated Contract Rate for the term of the Receivable and allocated to each
monthly payment based upon a fraction, the numerator of which is the principal
balance of such Receivable immediately prior to the due date for such monthly
payment and the denominator of which is the sum of all principal balances for
each monthly payment to be made until the maturity of such Receivable.
"Supplemental Servicing Fee" is defined in Section 3.8.
"Transferor" means [Volkswagen Auto Lease Underwritten Funding, LLC].
"Trust" means the trust created by this Agreement, which shall be
known as Volkswagen Auto Loan Enhanced Trust 200_-_.
"Trustee" means _________, a ___________, as Trustee under this
Agreement and any successor Trustee appointed and acting pursuant to this
Agreement.
"Trust Property" means:
(a) all right, title and interest of Seller in and to the
Receivables, and all moneys received thereon [on or] after the Cutoff
Date;
(b) all right, title and interest of Seller in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of Seller in the Financed Vehicles
and any other property that shall secure the Receivables;
(c) the interest of Seller in any proceeds with respect to the
Receivables from claims on any Insurance Policies covering Financed
Vehicles or the Obligors or from claims under any lender's single
interest insurance policy naming the Transferor as an insured;
(d) rebates of premiums relating to Insurance Policies and
rebates of other items such as extended warranties financed under the
Receivables, in each case, to the extent the Servicer would, in
accordance with its customary practices, apply such amounts to the
Principal Balance of the related Receivable;
18
(e) the interest of Seller in any proceeds from (i) any
Receivable repurchased by a Dealer, pursuant to a Dealer Agreement, as
a result of a breach of representation or warranty in the related
Dealer Agreement, (ii) a default by an Obligor resulting in the
repossession of the Financed Vehicle under the applicable Motor
Vehicle Loan or (iii) any Dealer Recourse or other rights relating to
the Receivables under Dealer Agreements;
(f) all right, title and interest in all funds on deposit from
time to time in the Collection Account, the Payahead Account, the
Class A Distribution Account and the Class B Distribution Account
(including the Account Property related thereto) and in all
investments and proceeds thereof (but excluding all investment income
thereon);
(g) all right, title and interest of Seller under each Purchase
Agreement, including the right of Seller to cause the Transferor to
repurchase Receivables from Seller;
(h) all right, title and interest of Seller in any instrument or
document relating to the Receivables; and
(i) the proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained herein, the Trust
Property shall not include, and the Trust shall not have any right to,
the Reserve Account or any funds actually or deemed to be deposited in
such account or any investments therein.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
Section 1.2 Other Interpretative Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the relevant jurisdiction and not otherwise
defined in this Agreement are used as defined in that Article; (c) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement; (d)
references to any Article, Section, Schedule, Appendix or Exhibit are references
to Articles, Sections, Schedules, Appendices and Exhibits in or to this
Agreement and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (e) the
term "including" means "including without limitation"; (f) except as otherwise
expressly provided herein, references to any law or regulation refer to that law
or regulation as amended from time to time and include any successor law or
regulation;
19
(g) references to any Person include that Person's successors and assigns; and
(h) headings are for purposes of reference only and shall not otherwise affect
the meaning or interpretation of any provision hereof.
Section 1.3 Calculations. All calculations of the amount of interest
accrued on the Certificates during any Collection Period and all calculations of
the amount of the Servicing Fee payable with respect to a Collection Period
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
Section 1.4 References. All references to the Record Date prior to the
first Record Date in the life of the Trust shall be to the Closing Date. All
references to the first day of a Collection Period shall refer to the opening of
business on such day. All references to the last day of a Collection Period
shall refer to the close of business on such day. All references herein to the
close of business means the close of business, Detroit, Michigan time.
Section 1.5 Action by or Consent of Holders. Whenever any provision of
this Agreement refers to action to be taken, or consented to, by Holders, such
provision shall be deemed to refer to Holders of record as of the Record Date
immediately preceding the date on which such action is to be taken, or consented
to, by Holders.
ARTICLE II
THE TRUST PROPERTY.
Section 2.1 Conveyance of Trust Property. In consideration of
Trustee's delivery to Seller or its designee of authenticated Certificates, in
authorized denominations, in an aggregate amount equal to the Original
Certificate Balance, Seller hereby sells, transfers, assigns and conveys to
Trustee, upon the terms and conditions hereof, in trust for the benefit of the
Holders, the Trust Property, without recourse (except to the extent of the
Servicer's obligations under this Agreement and the Related Agreements). The
sale, transfer, assignment, setting over and conveyance made hereunder shall not
constitute and is not intended to result in an assumption by Trustee, any Holder
or any Certificate Owner of any obligation of the Transferor to the Obligors,
the Dealers or any other Person in connection with the Receivables and the other
Trust Property or any agreement, document or instrument related thereto.
Section 2.2 Representations and Warranties as to Each Receivable. The
Servicer hereby makes the following representations and warranties as to each
Receivable on which Trustee shall rely in accepting the Trust Property in trust
and authenticating the Certificates. Unless otherwise indicated, such
representations and warranties shall speak as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables and the other Trust
Property to the Trust.
(a) Characteristics of Receivables. The Receivable has been fully
and properly executed by the parties thereto and (i) is a Direct Loan
made by an
20
Originator or has been originated by a Dealer in the ordinary course
of such Dealer's business and has been purchased by an Originator, in
either case, in the ordinary course of such Originator's business and
in accordance with such Originator's underwriting standards to finance
the retail sale by a Dealer of the related Financed Vehicle or has
otherwise been acquired by the Transferor, (ii) the Originator of
which has underwriting standards that require physical damage
insurance to be maintained on the related Financed Vehicle, (iii) is
secured by a valid, subsisting, binding and enforceable first priority
security interest in favor of the Transferor in the Financed Vehicle
(subject to administrative delays and clerical errors on the part of
the applicable government agency and to any statutory or other lien
arising by operation of law after the Closing Date which is prior to
such security interest), which security interest is assignable
together with such Receivable, and has been so assigned to Seller, and
subsequently assigned by Seller to Trustee, (iv) contains customary
and enforceable provisions such that the rights and remedies of the
holder thereof are adequate for realization against the collateral of
the benefits of the security, (v) provided, at origination, for level
monthly payments (provided that the amount of the last payment may be
different), which fully amortize the Initial Principal Balance over
the original term, (vi) provides for interest at the Contract Rate
specified in the Schedule of Receivables, (vii) was originated in the
United States, and (viii) constitutes "chattel paper" as defined in
the UCC.
(b) Individual Characteristics. The Receivables have the
following individual characteristics as of the Cutoff Date: (i) each
Receivable is secured by a Motor Vehicle; (ii) each Receivable has a
Contract Rate of at least ____% and not more than ___%; (iii) each
Receivable had a remaining number of scheduled payments, as of the
Cutoff Date, of not less than ______ and not more than _____; (iv)
each Receivable had an initial Principal Balance of not less than
$_______ and not more than $_____; (v) no Receivable was more than 30
days past due as of the Cutoff Date; (vi) no Financed Vehicle had been
repossessed as of the Cutoff Date; (vii) no Receivable is subject to a
force placed Physical Damage Insurance Policy on the related Financed
Vehicle; [(viii) each Receivable is a Simple Interest Receivable;] and
(ix) the Dealer of the Financed Vehicle has no participation in, or
other right to receive, any proceeds of the Receivable. The
Receivables were selected using selection procedures that were not
intended by the Transferor or Seller to be adverse to the Holders.
(c) Schedule of Receivables. The information with respect to each
Receivable set forth in the Schedule of Receivables, including
(without limitation) the identity and address of the Obligor, account
number, the Initial Principal Balance, the maturity date and the
Contract Rate, was true and correct in all material respects as of the
close of business on the Cutoff Date.
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(d) Compliance with Law. The Receivable complied at the time it
was originated or made, and will comply as of the Closing Date, in all
material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including, to the extent
applicable, usury laws, the Federal Truth in Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Federal Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇
Warranty Act, the Fair Debt Collection Practices Act, Federal Reserve
Board Regulations B and Z and any other consumer credit, consumer
protection, equal opportunity and disclosure laws.
(e) Binding Obligation. The Receivable constitutes the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable in all material respects by the holder thereof in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally, and the Receivable is not
subject to any right of rescission, setoff, counterclaim or defense,
including the defense of usury.
(f) Lien in Force. Neither Seller nor the Transferor has taken
any action which would have the effect of releasing the related
Financed Vehicle from the Lien granted by the Receivable in whole or
in part.
(g) No Amendment or Waiver. No material provision of the
Receivable has been amended, waived, altered or modified in any
respect, except such waivers as would be permitted under this
Agreement, and no amendment, waiver, alteration or modification causes
such Receivable not to conform to the other representations or
warranties contained in this Section.
(h) No Liens. Neither Seller nor the Transferor has received
notice of any Liens or claims, including Liens for work, labor,
materials or unpaid state or federal taxes, relating to the Financed
Vehicle securing the Receivable, that are or may be prior to or equal
to the Lien granted by the Receivable.
(i) No Default. Except for payment delinquencies continuing for a
period of not more than 30 days as of the Cutoff Date, to the
knowledge of Seller, no default, breach, violation or event permitting
acceleration under the terms of the Receivable exists and no
continuing condition that with notice or lapse of time, or both, would
constitute a default, breach, violation or event permitting
acceleration under the terms of the Receivable has arisen.
(j) Insurance. The Receivable requires the Obligor to insure the
Financed Vehicle under a Physical Damage Insurance Policy, pay the
premiums for such insurance and keep such insurance in full force and
effect.
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(k) Good Title. No Receivable has been sold, transferred,
assigned, or pledged by Seller to any Person other than the Trust.
Immediately prior to the transfer and assignment herein contemplated,
Seller had good and marketable title to the Receivable free and clear
of any Lien and had full right and power to transfer and assign the
Receivable to the Trust and immediately upon the transfer and
assignment of the Receivable to the Trust, the Trust shall have good
and marketable title to the Receivable, free and clear of any Lien;
and the Trust's interest in the Receivable resulting from the transfer
has been perfected under the UCC.
(l) Obligations. The Transferor has duly fulfilled all
obligations on its part to be fulfilled under, or in connection with,
the Receivable.
(m) Possession. There is only one original executed Receivable,
and immediately prior to the Closing Date, the Transferor will have
possession of such original executed Receivable.
(n) [No Government Obligor. The Obligor on the Receivable is not
the United States of America or any state thereof or any local
government, or any agency, department, political subdivision or
instrumentality of the United States of America or any state thereof
or any local government.]
(o) Marking Records. By the Closing Date, Seller shall have
caused the portions of Seller's and the Transferor's electronic master
record of Motor Vehicle Loans relating to the Receivables to be
clearly and unambiguously marked to show that the Receivable is owned
by Trustee in accordance with the terms of this Agreement.
(p) No Assignment. As of the Closing Date, Seller shall not have
taken any action to convey any right to any Person that would result
in such Person having a right to payments received under the Insurance
Policies or Dealer Agreements, or payments due under the Receivable,
that is senior to, or equal with, that of Trustee.
(q) Lawful Assignment. The Receivable has not been originated in,
and is not subject to the laws of, any jurisdiction under which the
sale, transfer or assignment of such Receivable hereunder or pursuant
to transfers of the Certificates are unlawful, void or voidable.
Neither Seller nor the Transferor has entered into any agreement with
any obligor that prohibits, restricts or conditions the assignment of
any portion of the Receivables.
Section 2.3 Representations and Warranties as to the Receivables in
the Aggregate. The Servicer hereby makes the following representations and
warranties as to the Receivables on which Trustee shall rely in accepting the
Trust Property in trust and
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authenticating the Certificates. Unless otherwise indicated, such
representations and warranties shall speak as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables and the other Trust
Property to the Trust.
(a) Amounts. The Original Pool Balance was $______________.
(b) Aggregate Characteristics. The Receivables had the following
characteristics in the aggregate as of the Cutoff Date: (i)
approximately ___% of the Original Pool Balance was attributable to
loans for purchases of new Financed Vehicles, and approximately ___%
of the Original Pool Balance was attributable to loans for purchases
of used Financed Vehicles; (ii) approximately ___%, ___%, ___% and
____% of the Original Pool Balance was attributable to Receivables the
mailing addresses of the Obligors with respect to which are located in
the States of __________, __________, __________, and ___________,
respectively, and no other state accounts for more than 5% of the
Original Pool Balance; (iii) the weighted average Contract Rate of the
Receivables was ____%; (iv) there are Receivables being conveyed by
Seller to the Trust; (v) the average Cutoff Date Principal Balance of
the Receivables was $________; and (vi) the weighted average original
term and weighted average remaining term of the Receivables were
______ months and ___ months, respectively.
Section 2.4 Repurchase upon Breach. Seller, Servicer or Trustee, as
the case may be, shall inform the other parties to this Agreement promptly, in
writing, upon the discovery of any breach or failure to be true of the
representations or warranties made by Servicer in Section 2.2, provided that the
failure to give such notice shall not affect any obligation of The Servicer. If
the breach or failure shall not have been cured by the last day of the
Collection Period which includes the 60th day (or if Servicer elects, the 30th
day) after the date on which Servicer becomes aware of, or receives written
notice from Trustee or the Servicer of, such breach or failure, and such breach
or failure materially and adversely affects the interests of Trustee and the
Holders in any Receivable, Servicer shall purchase each such affected Receivable
from Trustee as of such last day of such Collection Period at a purchase price
equal to the Purchase Amount for such Receivable as of such last day of such
Collection Period. Notwithstanding the foregoing, any such breach or failure
with respect to the representations and warranties contained in Section 2.2 will
not be deemed to have such a material and adverse effect with respect to a
Receivable if the facts resulting in such breach or failure do not affect the
ability of the Trust to receive and retain payment in full on such Receivable.
In consideration of the repurchase of a Receivable hereunder, Servicer shall
remit the Purchase Amount of such Receivable, no later than the close of
business on the next Deposit Date, in the manner specified in Section 4.4. The
sole remedy of the Trust, Trustee or the Holders with respect to a breach or
failure to be true of the representations or warranties made by Servicer
pursuant to Section 2.2 shall be to require Servicer to purchase Receivables
pursuant to this Section.
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Section 2.5 Custodian of Receivable Files. (a) Custody. To assure
uniform quality in servicing the Receivables and to reduce administrative costs,
Trustee, upon the execution and delivery of this Agreement, revocably appoints
the Custodian, as agent, and the Custodian accepts such appointment, to act as
agent on behalf of Trustee to maintain custody of the following documents or
instruments, which are hereby constructively delivered to Trustee with respect
to each Receivable (collectively, a "Receivable File"):
(i) the fully executed original of the Receivable;
(ii) any documents customarily delivered to or held by Servicer
evidencing the existence of any Physical Damage Insurance
Policies;
(iii) the original credit application, fully executed by the
Obligor;
(iv) the original certificate of title, or such other documents
as the Transferor, as appropriate, keeps on file, in accordance
with its customary procedures, evidencing the security interest
of the Transferor in the Financed Vehicle;
(v) originals or true copies of all documents, instruments or
writings relating to extensions, amendments or waivers of the
Receivable; and
(vi) any and all other documents or electronic records that the
Transferor or Servicer, as the case may be, keeps on file, in
accordance with its customary procedures, relating to the
Receivable, any Insurance Policies, the Obligor or the Financed
Vehicle.
(b) Safekeeping. Servicer, in its capacity as Custodian, shall
hold the Receivable Files as agent on behalf of Trustee for the
benefit of all present and future Holders, and maintain such accurate
and complete accounts, records and computer systems pertaining to each
Receivable as shall enable Servicer and Trustee to comply with the
terms and provisions of this Agreement applicable to them. In
performing its duties as Custodian hereunder, the Custodian shall act
with reasonable care, exercising the degree of skill, attention and
care that Custodian exercises with respect to receivable files
relating to other similar motor vehicle loans owned and/or serviced by
the Custodian and that is consistent with industry standards. In
accordance with its customary practice with respect to its retail
installment sale contracts, Custodian shall conduct, or cause to be
conducted, periodic audits of the Receivable Files held by it under
this Agreement, and of the related accounts, records, and computer
systems, and shall maintain the Receivable Files in such a manner as
shall enable Trustee to verify, if Trustee so elects, the accuracy of
the record keeping of Custodian. Custodian shall promptly report to
Trustee any failure on its part to hold the Receivable Files and
maintain its accounts, records and computer systems as
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herein provided, and promptly take appropriate action to remedy any
such failure. The Custodian hereby acknowledges receipt of the
Receivable File for each Receivable listed on the Schedule of
Receivables. Nothing herein shall be deemed to require Trustee to
verify the accuracy of the record keeping of the Custodian.
(c) Maintenance of and Access to Records. The Custodian shall
maintain each Receivable File at the location specified in Schedule A
to this Agreement, or at such other office of the Custodian within the
United States (or, in the case of any successor Custodian, within the
State in which its principal place of business is located) as shall be
specified to Trustee by 30 days' prior written notice. Upon Trustee's
reasonable request, the Custodian shall make available to Trustee or
its agents (or, when requested in writing by Trustee, to its attorneys
or auditors) the Receivable Files and the related accounts, records
and computer systems maintained by the Custodian at such times during
the normal business hours of the Custodian for purposes of inspecting,
auditing or making copies or abstracts of the same.
(d) Release of Documents. Upon written instructions from Trustee,
Custodian shall release any document in the Receivable Files to
Trustee or its agent or designee, as the case may be, at such place or
places as Trustee may designate, as soon thereafter as is practicable.
Any document so released shall be handled by Trustee with due care and
returned to the Custodian for safekeeping as soon as Trustee or its
agent or designee, as the case may be, shall have no further need
therefor.
(e) Title to Receivables. The Custodian agrees that, in respect
of any Receivable File held by the Custodian hereunder, the Custodian
will not at any time have or in any way attempt to assert any interest
in such Receivable File or the related Receivable, other than solely
for the purpose of collecting or enforcing the Receivable for the
benefit of the Trust and that the entire equitable interest in such
Receivable and the related Receivable File shall at all times be
vested in the Trust.
(f) Instructions; Authority to Act. The Custodian shall be deemed
to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by an Authorized
Officer of Trustee. A certified copy of excerpts of certain
resolutions of the Board of Directors of Trustee shall constitute
conclusive evidence of the authority of any such Authorized Officer to
act and shall be considered in full force and effect until receipt by
the Custodian of written notice to the contrary given by Trustee.
(g) Custodian's Indemnification. Custodian shall indemnify and
hold harmless Trustee, its officers, directors, employees and agents
and the Holders
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from and against any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses (including legal
fees if any) of any kind whatsoever that may be imposed on, incurred
or asserted against Trustee or the Holders as the result of any act or
omission of Custodian relating to the maintenance and custody of the
Receivable Files; provided that the Custodian shall not be liable
hereunder to the extent that such liabilities, obligations, losses,
compensatory damages, payments, costs or expenses result from the
willful misfeasance, bad faith or negligence of Trustee.
Indemnification under this Section 2.5(g) shall include reasonable
fees and expenses of counsel and expenses of litigation and shall
survive termination of this Agreement and the resignation or removal
of Trustee. If Custodian shall have made any indemnity payments to
Trustee pursuant to this Section and Trustee thereafter shall collect
any of such amounts from Persons other than Custodian, Trustee shall
immediately upon receipt thereof repay such amounts to Custodian,
without interest.
(h) Effective Period and Termination. Servicer's appointment as
Custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this
subsection (h). If Servicer shall resign as Servicer in accordance
with Section 7.5 or if all of the rights and obligations of Servicer
shall have been terminated under Section 8.1, the appointment of
Servicer as Custodian hereunder may be terminated by Trustee or by the
Majority Holders, in the same manner as Trustee or such Holders may
terminate the rights and obligations of Servicer under Section 8.1.
Trustee may terminate Servicer's appointment as Custodian hereunder at
any time with cause, or with 30 days' prior written notice without
cause, upon written notification to Servicer. As soon as practicable
after any termination of such appointment Servicer shall deliver, or
cause to be delivered, the Receivable Files to Trustee, Trustee's
agent or Trustee's designee at such place or places as Trustee may
reasonably designate. Notwithstanding any termination of Servicer as
Custodian hereunder (other than in connection with a termination
resulting from the termination of Servicer, as such, pursuant to
Section 8.1), from and after the date of such termination, and for so
long as Servicer is acting as such pursuant to this Agreement, Trustee
shall provide, or cause the successor Custodian to provide, access to
the Receivable Files to Servicer, at such times as Servicer shall
reasonably request, for the purpose of carrying out its duties and
responsibilities with respect to the servicing of the Receivables
hereunder.
(i) Delegation. Custodian may, at any time without notice or
consent, delegate any or all of its duties to the Transferor; provided
that no such delegation shall relieve Custodian of its responsibility
with respect to such duties and Custodian shall remain obligated and
liable to Trustee and the Holders for its duties hereunder as if
Custodian alone were performing such duties.
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ARTICLE III
ADMINISTRATION AND SERVICING OF TRUST PROPERTY.
Section 3.1 Duties of Servicer. (a) Servicer is hereby authorized to
act as agent for the Trust and in such capacity shall manage, service,
administer and make collections on the Receivables (other than Purchased
Receivables), and perform the other actions required by Servicer under this
Agreement, with reasonable care. Without limiting the standard set forth in the
preceding sentence, Servicer shall use a degree of skill, attention and care
that is not less than Servicer exercises with respect to comparable Motor
Vehicle Loans that it services for itself or others and that is consistent with
prudent industry standards. Servicer's duties shall include the collection and
posting of all payments, responding to inquiries by obligors on the Receivables,
or by federal, state or local governmental authorities, investigating
delinquencies, sending payment coupons or monthly invoices to Obligors,
reporting required tax information to Obligors, accounting for Collections,
monitoring the status of Physical Damage Insurance Policies with respect to the
Financed Vehicles as provided in Section 3.4(a), furnishing monthly and annual
statements to Trustee with respect to distributions, providing collection and
repossession services in the event of Obligor default and performing the other
duties specified herein. Servicer shall also administer and enforce all rights
and responsibilities of the holder of the Receivables provided for in the
Physical Damage Insurance Policies as provided in Section 3.4(b) and the Dealer
Agreements. Without limiting the generality of the foregoing, Servicer is hereby
authorized and empowered by Trustee to execute and deliver, on behalf of itself,
the Trust, Trustee and the Holders, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables or to the Financed
vehicles, all in accordance with this Agreement; provided that notwithstanding
the foregoing, Servicer shall not, except pursuant to an order from a court of
competent jurisdiction, release an Obligor from payment of any unpaid amount
under any Receivable or waive the right to collect the unpaid balance of any
Receivable from the Obligor, except in connection with a de minimis deficiency
which Servicer would not attempt to collect in accordance with its customary
procedures. If Servicer shall commence a legal proceeding to enforce a
Receivable, Trustee shall thereupon be deemed to have automatically assigned
such Receivable to Servicer, which assignment shall be solely for purposes of
collection. Trustee shall furnish Servicer with any powers of attorney and other
documents or instruments necessary or appropriate to enable Servicer to carry
out its servicing and administrative duties hereunder.
(b) Servicer may, at any time without notice (except that
Servicer shall give written notice to each Rating Agency of any
delegation outside the ordinary course of business of the substantial
portion of its servicing business) or consent, delegate specific
duties to subcontractors who are in the business of performing such
duties; provided that no such delegation shall relieve Servicer of its
responsibility with respect to such duties and Servicer shall remain
obligated and liable to Trustee and the Holders for servicing and
administering the Receivables in accordance with this Agreement as if
Servicer alone were performing such duties.
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Section 3.2 Collection of Receivable Payments. (a) Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due, and
otherwise act with respect to the Receivables, the Physical Damage Insurance
Policies, the Dealer Agreements and the other Trust Property in such manner as
will, in the reasonable judgment of Servicer, maximize the amount to be received
by the Trust with respect thereto, in accordance with the standard of care
required by Section 3.1. Servicer shall be entitled to amend or modify any
Receivable in accordance with its customary procedures if Servicer believes in
good faith that such amendment or modification is in the best interests of the
Trust; provided that Servicer may not, unless ordered by a court of competent
jurisdiction or otherwise required by applicable law, (i) extend a Receivable
beyond the Final Scheduled Maturity Date, or (ii) reduce the Principal Balance
or Contract Rate of any Receivable. If Servicer fails to comply with the
provisions of the preceding sentence, Servicer shall be required to purchase the
Receivable or Receivables affected thereby, for the Purchase Amount, in the
manner specified in Section 4.7 as of the close of business for the Collection
Period in which such failure occurs. Servicer may, in its discretion (in
accordance with its customary standards, policies and procedures), waive any
prepayment charge, late payment charge, extension fee or any other fee that may
be collected in the ordinary course of servicing a Receivable.
(b) If in the course of collecting payments under the
Receivables, Servicer determines to set off any obligation of Servicer
to an Obligor against an amount payable by the Obligor with respect to
such Receivable, Servicer shall deposit the amount so set off in the
Collection Account, no later than the close of business on the Deposit
Date for the Collection Period in which the set-off occurs. All
references herein to payments or Liquidation Proceeds collected by
Servicer shall include amounts set-off by Servicer.
Section 3.3 Realization upon Receivables. On behalf of the Trust,
Servicer shall charge off a Receivable as a Defaulted Receivable in accordance
with its customary standards (and, in no event later than ___ days after a
Receivable shall have become delinquent) and shall use reasonable efforts to
repossess and liquidate the Financed Vehicle securing any Defaulted Receivable
as soon as feasible after default, in accordance with the standard of care
required by Section 3.1. In taking such action, Servicer shall follow such
customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of Motor Vehicle Loans, and as are otherwise
consistent with the standard of care required under Section 3.1, which shall
include exercising any rights under the Dealer Agreements and selling the
Financed Vehicle at public or private sale. Servicer shall be entitled to
recover all reasonable expenses incurred by it in the course of repossessing and
liquidating a Financed Vehicle into cash proceeds or pursuing any deficiency
claim against the related Obligor, but only out of the cash proceeds of such
Financed Vehicle or any deficiency obtained from the Obligor. The foregoing
shall be subject to the provision that, in any case in which a Financed Vehicle
shall have suffered damage, Servicer shall not expend funds in connection with
the repair or the repossession of such Financed Vehicle unless it shall
determine in its discretion that such repair and/or repossession
29
will increase the Liquidation Proceeds of the related Receivable by an amount
equal to or greater than the amount of such expenses.
If Servicer elects to commence a legal proceeding to enforce a Dealer
Agreement, the act of commencement shall be deemed to be an automatic assignment
from Trustee to Servicer of the rights under such Dealer Agreement. If, however,
in any enforcement suit or legal proceeding, it is held that Servicer may not
enforce a Dealer Agreement on the grounds that it is not a real party in
interest or a Person entitled to enforce the Dealer Agreement, Trustee, on
behalf of the Trust, at Servicer's expense, shall take such steps as Servicer
deems necessary to enforce the Dealer Agreement, including bringing suit in its
name or the names of the Holders.
Section 3.4 Physical Damage Insurance. (a) The Receivables require
that each Financed Vehicle be insured under a Physical Damage Insurance Policy.
Servicer shall monitor or cause to be monitored, the status of such physical
damage insurance coverage to the extent consistent with its customary servicing
procedures. If Servicer shall determine that an Obligor has failed to obtain or
maintain a Physical Damage Insurance Policy covering the related Financed
Vehicle, Servicer shall use its reasonable efforts to enforce the rights of the
holder of the Receivable under the Receivable to require the Obligor to obtain
such physical damage insurance, provided that Servicer shall not be required to
take such actions if there is in place a lender's single interest policy with
respect to the related Financed Vehicle that complies with Servicer's customary
requirements. It is understood that Servicer will not "force-place" any Physical
Damage Insurance Policy on any Financed Vehicle.
(b) Servicer may ▇▇▇ to enforce or collect upon the Physical
Damage Insurance Policies, in its own name, if possible, or as agent
for the Trust. If Servicer elects to commence a legal proceeding to
enforce a Physical Damage Insurance Policy, the act of commencement
shall be deemed to be an automatic assignment of the rights of the
Trust under such Physical Damage Insurance Policy to Servicer for
purposes of collection only. If, however, in any enforcement suit or
legal proceeding it is held that Servicer may not enforce a Physical
Damage Insurance Policy on the grounds that it is not a real party in
interest or a holder entitled to enforce the Physical Damage Insurance
Policy, Trustee, on behalf of the Trust, at Servicer's expense, shall
take such steps as Servicer deems necessary to enforce such Physical
Damage Insurance Policy, including bringing suit in its name or the
name of Trustee for the benefit of the Holders. Servicer shall make
all claims and enforce its rights under any lender's single interest
insurance policy (to the extent such claims or rights relate to
Receivables) for the benefit of the Trust and shall treat as
Collections all related proceeds of such policies.
Section 3.5 Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under Section 3.1,
shall take such reasonable steps as are necessary to maintain perfection of the
security interest created by each Receivable in the related Financed Vehicle for
the benefit of the Trust. Trustee, on behalf of the Trust,
30
hereby authorizes Servicer, and Servicer hereby agrees, to take such reasonable
steps as are necessary to re-perfect such security interest on behalf of the
Trust in the event Servicer receives notice of the relocation of a Financed
Vehicle. If there has been a Servicer Termination Event, upon the request of
Trustee, Servicer, at its expense, shall promptly and duly execute and deliver
such documents and instruments, and take such other reasonable actions as may be
necessary, as evidenced by an Opinion of Counsel delivered to Trustee to perfect
the Trust's interest in the Trust Property against all other Persons, including
the delivery of the Receivables and the Receivable Files to Trustee, its agent,
or its designee, the endorsement and delivery of the Physical Damage Insurance
Policies or the notification of the insurers thereunder, the execution of
transfer instruments, and the endorsement to Trustee and the delivery of the
certificates of title to the Financed Vehicles to the appropriate department or
departments of motor vehicles (or other appropriate governmental agency).
Section 3.6 Covenants of Servicer. Servicer makes the following
covenants on which Trustee relies in accepting the Trust Property in trust and
in executing and authenticating the Certificates:
(a) Security Interest to Remain in Force. Servicer shall not
release any Financed Vehicle from the security interest granted by the
related Receivable in whole or in part, except upon payment in full of
the Receivable or as otherwise contemplated herein.
(b) No Impairment. Servicer shall not impair in any material
respect the rights of the Holders in the Receivables, the Dealer
Agreements or the Physical Damage Insurance Policies or, subject to
clause (c), otherwise amend or alter the terms thereof if, as a result
of such amendment or alteration, the interests of the Trust and the
Holders hereunder would be materially adversely affected.
(c) Amendments. Servicer shall not amend or otherwise modify any
Receivable (including the grant of any extension thereunder), except
in accordance with Section 3.2.
Section 3.7 Purchase by Servicer upon Breach. Seller, Servicer or
Trustee, as the case may be, shall inform the other parties promptly, in
writing, upon the discovery of any breach by Servicer of its covenants under
Section 3.5 or 3.6; provided that the failure to give such notice shall not
affect any obligation of Servicer. Unless the breach shall have been cured by
the last day of the Collection Period which includes the 60th day (or the 30th
day, if Servicer so elects) after the date on which Servicer becomes aware of,
or receives written notice of, such breach, and such breach or failure
materially and adversely affects the interests of Trustee and the Holders in any
Receivable, Servicer shall purchase such Receivable from Trustee as of the last
day of the Collection Period at a purchase price equal to the Purchase Amount
for such Receivable as of the last day of such Collection Period; provided that
in the case of a breach of the covenant contained in Section 3.6(c), Servicer
shall be obligated to purchase the affected
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Receivable or Receivables on the Deposit Date immediately succeeding the
Collection Period during which Servicer becomes aware of, or receives written
notice of, such breach. In consideration of the purchase of a Receivable
hereunder, Servicer shall remit the Purchase Amount of such Receivable in the
manner specified in Section 5.4. The sole remedy of the Trust, Trustee or the
Holders against Servicer with respect to a breach pursuant to Section 3.5 or 3.6
shall be to require Servicer to repurchase Receivables pursuant to this Section.
Section 3.8 Servicing Compensation. The servicing fee for (a) the
_____ 200_ Distribution Date shall equal $________ and (b) for each Distribution
Date thereafter shall equal the product of (i) one-twelfth, (ii) the Servicing
Fee Rate and (iii) the Pool Balance as of the opening of business on the first
day of the related Collection Period (the "Servicing Fee"). Servicer shall also
be entitled to retain any late fees, extension fees, prepayment charges
(including, in the case of any Rule of 78's Receivable or Sum of Periodic
Balances Receivable that is prepaid in full, amounts received in excess of the
outstanding Principal Balance of such Receivable and accrued interest thereon
calculated as if such Receivable were an Actuarial Receivable) and certain
non-sufficient funds charges and other administrative fees or similar charges
allowed by applicable law with respect to Receivables collected (from whatever
source) on the Receivables and shall be paid any interest earned on deposits in
the Accounts (the "Supplemental Servicing Fee"). It is understood and agreed
that Available Interest or Available Principal shall not include any amounts
retained by Servicer which constitute Supplemental Servicing Fees. The Servicing
Fee in respect of a Collection Period (together with any portion of the
Servicing Fee that remains unpaid from prior Distribution Dates), if the Rating
Agency Condition is satisfied, may be paid at the beginning of such Collection
Period out of Collections for such Collection Period. As provided in Section
4.5, as additional compensation, Servicer shall be entitled to receive on each
Distribution Date, any Additional Servicing for such Distribution Date.
Section 3.9 Servicer's Report. (a) On each Determination Date,
Servicer shall deliver to Trustee, each Paying Agent and Seller, with a copy to
the Rating Agencies, a Servicer's Report substantially in the form of Exhibit C
(a "Servicer's Report") containing, among other things, (i) all information
necessary to make the deposits, transfers and distributions required by Sections
4.4, 4.5 and 4.6, (ii) all information necessary for sending statements to
Holders pursuant to Section 4.7, (iii) all information necessary to prepare the
certificate described in Section 9.3, (iv) all information necessary to
determine if there has been a Servicer Termination Event under Section 8.1, and
(v) all information necessary to reconcile all deposits to, and withdrawals
from, the Collection Account for such Distribution Date and the related
Collection Period. Servicer also shall separately identify (by account number of
the Receivable as it appears in the Schedule of Receivables) to Trustee in a
written notice or a list in computer readable form the Receivables to be
purchased by Servicer, as the case may be, on the related Deposit Date, and each
Receivable which became a Defaulted Receivable during the related Collection
Period.
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(b) Servicer shall provide Trustee with a database file for the
Receivables at or prior to the Closing Date (but with information as
of the close of business on the Cutoff Date).
Section 3.10 Annual Statement as to Compliance. (a) The Servicer will
deliver to the Trustee and each Rating Agency, on or before [_____] of each
year, beginning on [_____], an Officer's Certificate (with appropriate
insertions) providing such information as is required under Item 1123 of
Regulation AB.
(b) Servicer shall deliver to Trustee and each Rating Agency,
promptly after having obtained knowledge thereof, but in no event
later than five Business Days thereafter, written notice in an
Officer's Certificate of any event which constitutes, or with the
giving of notice or lapse of time or both, would become, a Servicer
Termination Event under Section 8.1.
(c) The Servicer will deliver to the Trustee, on or before
[_____] of each year, beginning on [_____], a report regarding the
Servicer's assessment of compliance with the Servicing Criteria during
the immediately preceding calendar year, including disclosure of any
material instance of non-compliance identified by the Servicer, as
required under paragraph (b) of Rule 13a-18, Rule 15d-18 of the
Exchange Act and Item 1122 of Regulation AB.
Section 3.11 Annual Servicing Report of Independent Public
Accountants. On or before the 90th day following the end of each fiscal year,
beginning with the fiscal year ending [__________], the Servicer shall cause a
firm of nationally recognized independent public accountants (who may also
render other services to the Servicer, the Seller or their respective
Affiliates) to furnish to the Trustee, the Servicer, the Seller and each Rating
Agency each attestation report on assessments of compliance with the Servicing
Criteria with respect to the Servicer or any affiliate thereof during the
related fiscal year delivered by such accountants pursuant to paragraph (c) of
Rule 13a-18 or Rule 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
The certification required by this paragraph may be replaced by any similar
certification using other procedures or attestation standards which are now or
in the future in use by servicers of comparable motor vehicle receivables, or
which comply with any rule, regulation, "no action" letter or similar guidance
promulgated by the Commission.
Such report will also indicate that the firm is independent of
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants.
Section 3.12 Access to Certain Documentation and Information Regarding
Receivables. Servicer shall provide Trustee and the Holders with access to the
Receivable Files (in the case of the Holders, only in such cases where it shall
be required by applicable statutes or regulations to give access to such
documentation as demonstrated by evidence satisfactory to Servicer in its
reasonable judgment). Such access shall be afforded without charge, but only
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upon reasonable request and during normal business hours at the offices of
Servicer. Nothing in this Section shall affect the obligation of Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors, and the failure of Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section. Any
Holder, by its acceptance of a Certificate, shall be deemed to have agreed to
keep any information obtained by it pursuant to this Section confidential and
not to use such information for any other purpose, except as required by
applicable law.
Section 3.13 Reports to the Commission. Servicer shall, on behalf of
the Trust, cause to be filed with the Commission any periodic reports required
to be filed under the provisions of the Exchange Act, and the rules and
regulations of the Commission thereunder.
Section 3.14 Reports to the Rating Agency. Servicer shall deliver to
each Rating Agency a copy of all reports or notices furnished or delivered
pursuant to this Article and a copy of any amendments, supplements or
modifications to this Agreement and any other information reasonably requested
by such Rating Agency to monitor this transaction.
Section 3.15 Servicer Expenses. Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder, including
fees and disbursements of the Trustee, independent accountants, taxes imposed on
Servicer and expenses incurred in connection with distributions and reports to
Holders.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO HOLDERS.
Section 4.1 Establishment of Accounts. (a) Trustee, on behalf of the
Trust and for the benefit of the Holders, shall establish and maintain in the
name of Trustee one or more segregated Eligible Deposit Accounts (collectively,
the "Collection Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Holders. Trustee, on
behalf of the Trust and for the benefit of the Class A Holders, shall establish
and maintain in the name of Trustee an Eligible Deposit Account (the "Class A
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Class A Holders. Trustee, on
behalf of the Trust and for the benefit of the Class B Holders, shall establish
and maintain in the name of Trustee an Eligible Deposit Account (the "Class B
Distribution Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Class B Holders. Trustee on
behalf of the Trust and for the benefit of the Holders, shall establish and
maintain in the name of Trustee an Eligible Deposit Account (the "Payahead
Account"), bearing a designation clearly indicating that the funds therein are
held for the benefit of the Holders. The Collection Account, the Class A
Distribution Account, the Class B Distribution Account, and the Payahead Account
shall be initially established and maintained with the trust department of
Trustee.
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(b) Funds on deposit in the Collection Account, the Class A
Distribution Account, the Class B Distribution Account, and the
Payahead Account shall be invested by Trustee in Eligible Investments
selected by Servicer (pursuant to standing instructions or otherwise)
and confirmed in writing by Servicer to Trustee; provided that, it is
understood and agreed that neither Servicer nor Trustee shall be
liable for any loss arising from such investment in Eligible
Investments. All such Eligible Investments shall be held by Trustee
for the benefit of the beneficiaries of the applicable Account;
provided that on each Distribution Date all interest and other
investment income (net of losses and investment expenses) on funds on
deposit therein shall be withdrawn from the Accounts at the written
direction of Servicer and shall be paid to Servicer and shall not be
available or otherwise subject to any claims or rights of the Holders.
Other than as permitted by each Rating Agency, funds on deposit in the
Accounts with respect to any Collection Period or Distribution Date
shall be invested only in Eligible Investments that, except for money
market funds, will mature so that such funds will be available at the
close of business on the related Deposit Date. Funds deposited in an
Account on a Deposit Date which immediately precedes a Distribution
Date upon the maturity of any Eligible Investments are not required to
be (but may be) invested overnight. No Eligible Investment with a
stated maturity shall be disposed of prior to that maturity unless a
default occurs with respect to that Eligible Investment and Servicer
directs Trustee in writing to dispose of it.
(c) Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Accounts and in all proceeds
thereof (excluding all income thereon) and all such funds, investments
and proceeds shall be part of the Trust Property. The Accounts shall
be under the sole dominion and the exclusive custody and control of
Trustee, and Trustee shall have sole signature authority with respect
thereto. If, at any time, any of the Accounts ceases to be an Eligible
Deposit Account, Trustee (or Servicer on its behalf) shall within 10
Business Days (or such longer period as to which each Rating Agency
may consent) establish a new Account as an Eligible Deposit Account
and shall transfer any cash and/or any investments that are in the
existing Account which is no longer an Eligible Deposit Account to
such new Account.
Section 4.2 Collections. (a) Subject to the provisions of the
succeeding sentence and of subsections (b) and (c), Servicer shall remit to the
Collection Account all payments (other than amounts constituting Supplemental
Servicing Fees) by or on behalf of the Obligors on the Receivables, including
all Liquidation Proceeds received by Servicer during any Collection Period, as
soon as practicable, but in no event after the close of business on the second
Business Day, after receipt thereof. Subject to the provisions of subsections
(b) and (c), on the Closing Date, Servicer shall deposit in the Collection
Account all payments by or on behalf of the Obligors on the Receivables received
by Servicer after the Cutoff Date and on or prior to the second Business Day
immediately preceding the Closing Date.
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(b) Notwithstanding the provisions of subsection (a), if
_________ is the Servicer and (i) Servicer shall have the Required
Rating or (ii) Trustee otherwise shall have received written notice
from each of the Rating Agencies that the then outstanding rating on
the Class A Certificates and the Class B Certificates would not be
lowered or withdrawn as a result, Servicer may deposit all amounts
referred to in subsection (a) for any Collection Period into the
Collection Account not later than the close of business on the Deposit
Date with respect to such Collection Period; provided that if (x) a
Servicer Termination Event has occurred and is continuing, (y)
Servicer has been terminated as such pursuant to Section 8.1 or (z)
Servicer ceases to have the Required Rating, Servicer shall deposit
such amounts (including any amounts then being held by Servicer) into
the Collection Account as provided in Section 4.2(a). Notwithstanding
the foregoing, the provisions of the proviso to the preceding sentence
shall not be applicable to a successor Servicer solely by reason of
the occurrence of an event specified in clauses (x), (y) and (z) of
such proviso with respect to the outgoing Servicer. Pending the
deposit of the amounts referred to in subsection (a) into the
Collection Account, such amounts may be employed by Servicer at its
own risk and for its own benefit and need not be segregated from
Servicer's own funds. Any losses resulting from Servicer's actions
shall be borne exclusively by the Servicer. Servicer shall promptly
notify Trustee in writing if it shall obtain or lose the Required
Rating.
(c) Notwithstanding the provisions of subsections (a) and (b),
Servicer may retain, or will be entitled to be reimbursed, from
amounts otherwise payable into, or on deposit in, the Collection
Account with respect to a Collection Period any amounts previously
deposited in the Collection Account but later determined to have
resulted from mistaken deposits or postings or checks returned for
insufficient funds, in each case, with respect to which Servicer has
not been previously reimbursed hereunder. The amount to be retained or
reimbursed hereunder shall not be included in Collections with respect
to the related Distribution Date.
(d) With respect to each Precomputed Receivable, collections and
payments by or on behalf of an obligor (other than any amounts
constituting Supplemental Servicing Fees) for each Collection Period
shall be applied to the scheduled payment on such Precomputed
Receivable for such Collection Period.
To the extent such collections and payments on a Precomputed Receivable during a
Collection Period exceed the scheduled payment on such Precomputed Receivable
and are insufficient to prepay the Precomputed Receivable in full, collections
shall be treated as Payaheads until such later Collection Period as such
Payaheads may be transferred to the Collection Account and applied either to the
scheduled payments due or to prepay the Precomputed Receivable in full in
accordance with Section 4.5.
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Section 4.3 [RESERVED].
Section 4.4 Additional Deposits; Net Deposits. (a) On or prior to each
Deposit Date, Servicer shall remit to the Collection Account, in next-day or
immediately available funds, the aggregate Purchase Amounts of the Receivables
to be purchased by it under an obligation that arose during the preceding
Collection Period pursuant to Section 2.4, 3.7 or 10.2, respectively.
(b) Servicer may make the remittances to be made by it pursuant
to this Article IV net of amounts to be distributed to it pursuant to
Section 4.5 (but subject to the priorities set forth therein), for so
long as (i) no Servicer Termination Event has occurred and is
continuing and (ii) Servicer has not been terminated as such pursuant
to Section 8.1; provided that Servicer shall account for all of such
amounts in the related Servicer's Report as if such amounts were
deposited and distributed separately; and provided that, if an error
is made by Servicer in calculating the amount to be deposited or
retained by it and a shortfall in the amount deposited in the
Collection Account results, Servicer shall make a payment of the
deficiency to the Collection Account, immediately upon becoming aware,
or receiving notice from Trustee, of such error.
Section 4.5 Distributions. (a) On each Determination Date, Servicer
shall calculate all amounts required to determine the amounts to be deposited on
the related Distribution Date in the Class A Distribution Account and the Class
B Distribution Account which calculations shall be set forth in the Servicer's
Report delivered to Trustee on or before such Determination Date.
(b) On or before each Distribution Date, Servicer shall instruct
Trustee in writing (based on the information contained in Servicer's
Report delivered on the related Determination Date pursuant to Section
3.9) to, and the Trustee shall:
(i) withdraw from the Payahead Account and deposit in the
Collection Account, in immediately available funds, (x) with
respect to each Precomputed Receivable for which the payments
made by or on behalf of the obligor for the related Collection
Period are less than the scheduled payment for the related
Collection Period, the amount of Payaheads, if any, made with
respect to such Receivable which, when added to the amount of
such payments, is equal to the amount of such scheduled payment,
(y) with respect to each Precomputed Receivable for which
prepayments insufficient to prepay the Receivable in full have
been made by or on behalf of the Obligor for the related
Collection Period, the amount of Payaheads, if any, made with
respect to such Receivable which, when added to the amount of
such prepayments, is equal to an amount
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sufficient to prepay such Receivable in full, and (z) the amount
of all Payaheads, if any, made with respect to any Purchased
Receivable; and
(ii) withdraw from the Collection Account and deposit in the
Payahead Account (or receive from the Servicer, which will remit
to the Trustee for deposit in the Payahead Account, as the case
may be), in immediately available funds, the aggregate amount of
collections on Precomputed Receivables treated as Payaheads
pursuant to Section 4.2 for the Collection Period related to such
Distribution Date.
(c) On each Distribution Date, based on the related Servicer's
Report, Trustee will make the following deposits and distributions
from the Collection Account by ____ a.m. (___________, ________ time),
to the extent of the sum of Available Interest and any Available
Reserve Amount (and, in the case of shortfalls in the Class A Interest
Distributable Amount occurring under clause (ii), the Class B
Percentage of Available Principal to the extent of such shortfalls),
in the following priority:
(i) to Servicer, any unpaid Servicing Fee for the related
Collection Period and all unpaid Servicing Fees from prior
Collection Periods;
(ii) to the Class A Distribution Account, the Class A Interest
Distributable Amount for such Distribution Date; and
(iii) to the Class B Distribution Account, the Class B Interest
Distributable Amount for such Distribution Date.
On each Distribution Date, based on the related Servicer's Report, Trustee will
make the following deposits and distributions, to the extent of the portion of
Available Principal, Available Interest and Available Reserve Amount remaining
after the application of clauses (i), (ii) and (iii), in the following priority:
(i) to the Class A Distribution Account, the Class A Principal
Distributable Amount for such Distribution Date;
(ii) to the Class B Distribution Account, the Class B Principal
Distributable Amount for such Distribution Date;
(iii) to the Reserve Account, any amounts remaining, until the
amount on deposit in the Reserve Account equals the Specified
Reserve Account Balance;
(iv) to the Servicer, the Additional Servicing for such
Distribution Date; and
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(v) to the Transferor, any amounts remaining.
(d) On each Distribution Date, all amounts on deposit in the
Class A Distribution Account will be distributed to the Class A
Holders (determined as of the related Record Date) by Trustee and all
amounts on deposit in the Class B Distribution Account will be
distributed to the Class B Holders (determined as of the related
Record Date) by Trustee. Except as provided in Section 10.1, payments
under this paragraph shall be made to the Holders by check mailed by
Trustee to each Holder's respective address of record (or, in the case
of Certificates registered in the name of a Clearing Agency, or its
nominee, by wire transfer of immediately available funds). To the
extent that Trustee is required to wire funds to the Holders from the
Class A Distribution Account or the Class B Distribution Account, as
applicable, it shall request the bank maintaining the Class A
Distribution Account or the Class B Distribution Account, as
applicable, to make a wire transfer of the amount to be distributed
and the bank maintaining the Class A Distribution Account or the Class
B Distribution Account, as applicable, shall promptly deliver to
Trustee a confirmation of such wire transfer. To the extent that
Trustee is required to make payments to Holders by check hereunder, it
shall request the bank maintaining the Class A Distribution Account or
the Class B Distribution Account, as applicable, to provide it with a
supply of checks to make such payments. The bank shall, if a request
is made by Trustee for a wire transfer by ______ a.m. (____ ____,
time) on any Distribution Date, wire such funds in accordance with
such instructions by ______ a.m. (____ ____, time) on such
Distribution Date, and it will otherwise act in compliance with the
provisions of this paragraph and the other provisions of this
Agreement applicable to it as the bank maintaining the Class A
Distribution Account or the Class B Distribution Account, as
applicable. Servicer shall take all necessary action (including
requiring an agreement to such effect) to ensure that any bank
maintaining the Class A Distribution Account or the Class B
Distribution Account, as applicable, agrees to comply, and complies,
with the provisions of this paragraph and the other provisions of this
Agreement applicable to it as the bank maintaining the Class A
Distribution Account or the Class B Distribution Account, as
applicable.
Section 4.6 Reserve Account. (a) Servicer shall establish and maintain
in the name of the Trustee an Eligible Deposit Account (the "Reserve Account").
The Reserve Account shall be initially established and maintained with the
Trustee (the "Securities Intermediary"). On the Closing Date, Servicer shall
deposit or cause to be deposited in the Reserve Account an amount equal to the
Reserve Account Initial Deposit.
(b) Trustee shall, at the written direction of Administrator,
direct the Securities Intermediary to invest funds on deposit in the
Reserve Account in Eligible Investments selected by Administrator and
confirmed in writing by Administrator to Trustee; provided that it is
understood and agreed that none of
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Trustee, Securities Intermediary or Administrator shall be liable for
any loss arising from such investment in Eligible Investments. Funds
on deposit in the Reserve Account shall be invested in Eligible
Investments that will mature so that all such funds will be available
at the close of business on each Deposit Date; provided that to the
extent permitted by the Rating Agencies following written request by
Administrator, funds on deposit in the Reserve Account may be invested
in Eligible Investments that mature later than the next Deposit Date.
Funds deposited in the Reserve Account on a Deposit Date upon the
maturity of any Eligible Investments are not required to be (but may
be) invested overnight.
(c) On each Distribution Date, any amounts on deposit in the
Collection Account with respect to the preceding Collection Period
after payments to Servicer, the Class A Distribution Account and the
Class B Distribution Account have been made will be deposited into the
Reserve Account until the amount of the Reserve Account is equal to
the Specified Reserve Account Balance.
(d) The Reserve Account shall be under the sole custody and
control of Trustee. If, at any time, the Reserve Account ceases to be
an Eligible Deposit Account, Trustee shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Reserve Account as an
Eligible Deposit Account and shall transfer any cash and/or any
investments that are in the existing account which is no longer an
Eligible Deposit Account to such new Reserve Account.
(e) On each Distribution Date, the amount available in the
Reserve Account (the "Available Reserve Amount") will equal the lesser
of (i) the amount on deposit in the Reserve Account (exclusive of
investment earnings) and (ii) the Specified Reserve Account Balance.
On each Deposit Date, Trustee will withdraw funds from the Reserve
Account to the extent that (A) the sum of the amounts required to be
distributed to Holders and the accrued and unpaid Servicing Fees
payable to Servicer on such Distribution Date exceeds (B) the amount
on deposit in the Collection Account with respect to the preceding
Collection Period (net of net investment income). The aggregate amount
to be withdrawn from the Reserve Account on any Deposit Date shall not
exceed the Available Reserve Amount with respect to the related
Distribution Date. Trustee will deposit the proceeds of such
withdrawal into the Collection Account on or before such Distribution
Date with respect to which such withdrawal was made.
(f) Amounts on deposit in the Reserve Account will be released to
Transferor on each Distribution Date to the extent that the amount
credited to the Reserve Account would exceed the Specified Reserve
Account Balance. Upon any distribution to Transferor of amounts from
the Reserve Account, the Holders will not have any rights in, or
claims to, such amounts. Amounts distributed to
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Transferor from the Reserve Account in accordance with this Section
shall not be available under any circumstances to the Trust, Trustee
or the Holders and Transferor shall in no event thereafter be required
to refund any such distributed amounts.
(g) Investment earnings attributable to the Reserve Account
Property and proceeds therefrom shall be held by Trustee for the
benefit of Transferor. Investment earnings attributable to the Reserve
Account Property shall not be available to pay the distributions
provided for in Section 4.5 and shall not otherwise be subject to any
claims or rights of the Holders or Servicer. Trustee shall cause all
investment earnings attributable to the Reserve Account to be
distributed on each Distribution Date to Transferor.
(h) Transferor may at any time, without consent of Holders, sell,
transfer, convey or assign in any manner its rights to and interests
in distributions from the Reserve Account provided that (i) the Rating
Agencies confirm in writing that such action will not result in a
reduction or withdrawal of the rating of the Class A Certificates or
the Class B Certificates, (ii) Transferor provides to Trustee an
Opinion of Counsel from independent counsel that such action will not
cause Trust to be classified as an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes
and (iii) such transferee or assignee agrees in writing to take
positions for federal income tax purposes consistent with the federal
income tax positions agreed to be taken by Transferor.
Section 4.7 Statements to Holders. On each Distribution Date, Servicer
shall provide to Trustee (with a copy to each Rating Agency) written
instructions for Trustee to forward to each Holder of record a statement setting
forth at least the following information as to the Certificates to the extent
applicable:
(a) the amount of the distribution allocable to principal on the
Class A Certificates and the Class B Certificates;
(b) the amount of the distribution allocable to interest on the
Class A Certificates and the Class B Certificates;
(c) the amount of the Servicing Fee paid to Servicer with respect
to the related Collection Period;
(d) the Class A Certificate Balance, the Class A Pool Factor, the
Class B Certificate Balance and the Class B Pool Factor as of such
Distribution Date, after giving effect to payments allocated to
principal reported under clause (a);
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(e) the Pool Balance as of the close of business on the last day
of the preceding Collection Period;
(f) the amount of Defaulted Receivables and Liquidation Proceeds,
if any, for such Collection Period;
(g) the aggregate Purchase Amount of Receivables purchased by
Servicer with respect to the related Collection Period;
(h) the Class A Interest Carryover Shortfall, the Class B
Interest Carryover Shortfall, the Class A Principal Carryover
Shortfall and the Class B Principal Carryover Shortfall, if any, in
each case as applicable to each of the Class A Certificates and the
Class B Certificates, and the change in such amounts from the
preceding statement;
(i) the balance of the Reserve Account on such Distribution Date,
after giving effect to changes therein on such Distribution Date;
(j) the Specified Reserve Account Balance as of the close of
business on such Distribution Date; and
(k) the number, and aggregate principal amount outstanding, of
Receivables past due 31-60, 61-90 and over 90 days.
Each amount set forth pursuant to clauses (a), (b) and (c) shall be expressed in
the aggregate and as a dollar amount per $1,000 of original denomination of a
Certificate.
Within a reasonable period of time after the end of each calendar
year, but not later than the latest date permitted by law, Servicer shall
furnish a report to the Trust and Trustee shall furnish, or cause to be
furnished, to each Person who at any time during such calendar year shall have
been a Holder, a statement based upon such report as to the sum of the amounts
determined in clauses (a) and (b) above for such calendar year, or, in the event
such Person shall have been a Holder during a portion of such calendar year, for
the applicable portion of such year, and such other information as is available
to Servicer as Servicer deems necessary or desirable to enable the Holders to
prepare their federal income tax returns. The obligation of the Trustee set
forth in this paragraph shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided pursuant to any
requirement of the Code.
ARTICLE V
THE CERTIFICATES.
Section 5.1 The Certificates. Trustee shall, upon written order or
request signed in the name of Seller by one of its officers authorized to do so
and delivered to an Authorized Officer of Trustee, execute on behalf of the
Trust, authenticate and deliver the
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Certificates to or upon the order of Seller in the aggregate principal amount
and denominations as set forth in such written order or request. The
Certificates shall be issuable in denominations of $1,000 and integral multiples
thereof; provided that one Class A Certificate and one Class B Certificate may
be issued in a denomination that represents the residual amount of the original
Class A Certificate Balance and the Original Class B Certificate Balance,
respectively. Upon initial issuance, the Class A Certificates and the Class B
Certificates shall be in the form of Exhibit A and Exhibit B, respectively,
which are incorporated by reference herein, and shall be issued as provided in
Section 5.8, in an aggregate amount equal to the Original Class A Certificate
Balance and the Original Class B Certificate Balance, respectively. The
Certificates shall be executed by Trustee on behalf of the Trust by manual or
facsimile signature of an Authorized Officer of Trustee under Trustee's seal
imprinted thereon and attested by the manual or facsimile signature of an
Authorized Officer of Trustee. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be valid and
binding obligations of the Trust, notwithstanding that such individuals shall
have ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
Section 5.2 Authentication of Certificates. No Certificate shall
entitle the Holder thereof to any benefit under this Agreement, or shall be
valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication, substantially in the form set forth in the form
of Certificates attached hereto as Exhibit A and Exhibit B, executed by Trustee
by manual signature. Such authentication shall constitute conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
Section 5.3 Registration of Transfer and Exchange of Certificates.
Trustee shall maintain, or cause to be maintained, at the office or agency to be
maintained by it in accordance with Section 5.7, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of transfer of
any Class A Certificate or Class B Certificate at such office or agency, Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Class A Certificates or Class B
Certificates, as the case may be, in authorized denominations of a like
aggregate amount. At the option of a Holder, Class A Certificates or Class B
Certificates may be exchanged for other Class A Certificates or Class B
Certificates, as the case may be, of authorized denominations of a like
aggregate amount at the office or agency maintained by Trustee in accordance
with Section 5.7. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
duly executed by the Holder and in a form satisfactory to Trustee. No service
charge shall be made for any registration of transfer or exchange of
Certificates, but Trustee may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Certificates. All Certificates surrendered for
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registration of transfer or exchange shall be cancelled and disposed of in
accordance with the customary procedures of Trustee.
The Class B Certificates and any beneficial interest in such Class B
Certificates may not be acquired (a) with the assets of an employee benefit plan
(as defined in Section 3(3) of ERISA) that is subject to the provisions of Title
I of ERISA, (b) by a plan described in Section 4975(e)(1) of the Code or (c) by
any entity whose underlying assets include plan assets by reason of a plan's
investment in the entity. By accepting and holding a Class B Certificate or
interest therein, the Holder thereof or Class B Certificate Owner thereof shall
be deemed to have represented and warranted that it is not subject to the
foregoing limitation.
The preceding provisions of this Section 5.3 notwithstanding, Trustee
shall not make and need not register any transfer or exchange of Certificates
for a period of fifteen (15) days preceding any Distribution Date for any
payment with respect to the Certificates.
Section 5.4 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Class A Certificate or Class B Certificate shall be surrendered to
Trustee, or if Trustee shall receive evidence to its satisfaction of the
destruction, loss or theft of any Class A Certificate or Class B Certificate and
(b) there shall be delivered to Trustee such security or indemnity as may be
required to save Trustee harmless, then in the absence of notice that such Class
A Certificate or Class B Certificate shall have been acquired by a bona fide
purchaser, Trustee shall execute, authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Class A Certificate or
Class B Certificate, a new Class A Certificate or Class B Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section 5.4, Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
herewith. Any replacement Certificate issued pursuant to this Section 5.4 shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section 5.5 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, Trustee may treat the Person in whose
name any Certificate shall be registered as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.5 and for all other
purposes, and Trustee shall not be bound by any notice to the contrary.
Section 5.6 Access to List of Holders' Names and Addresses. Trustee
shall furnish or cause to be furnished to Servicer, within fifteen days after
receipt by Trustee of a request therefor from Servicer in writing, in such form
as Servicer may reasonably require, a list of the names and addresses of the
Holders as of the most recent Record Date. If Definitive Certificates have been
issued, Trustee, upon written request of (a) three or more Holders or (b) one or
more Holders evidencing not less than 25% of the aggregate outstanding principal
balance of the Certificates, will, within five Business Days after the receipt
of such request, afford such Holders access during normal business hours to the
most current list of Holders for purposes of
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communicating with other Holders with respect to their rights under the
Agreement. Each Holder, by receiving and holding a Certificate, shall be deemed
to have agreed not to hold Seller, Servicer or Trustee accountable by reason of
the disclosure of such Holder's name and address, regardless of the source from
which such information was derived.
Section 5.7 Maintenance of Office or Agency. Trustee shall maintain,
or cause to be maintained, at its expense, in _________, an office or agency
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon Trustee in respect of the Certificates
and this Agreement may be served. Trustee initially designates its office
located at ________ for such purposes. Trustee shall give prompt written notice
to Servicer and to Holders of any change in the location of any such office or
agency.
Section 5.8 Book Entry Certificates. Upon original issuance, the Class
A Certificates and the Class B Certificates, other than the Class A Certificate
representing the residual amount of the Original Class A Certificate Balance and
the Class B Certificate representing the residual amount of the Original Class B
Certificate Balance, which shall be issued upon the written order of Seller,
shall be issued in the form of one or more typewritten Certificates representing
the Book Entry Certificates, to be delivered to the initial Clearing Agency, by,
or on behalf of, Seller. Such Certificates shall initially be registered on the
Certificate Register in the name of CEDE & Co., the nominee of the initial
Clearing Agency, and no Certificate Owner will receive a Definitive Certificate
representing such Certificate Owner's interest in the Class A Certificates or
the Class B Certificates, as the case may be, except as provided in Section
5.10. Unless and until definitive, fully registered Certificates ("Definitive
Certificates") have been issued to the Holders pursuant to Section 5.10:
(a) the provisions of this Section 5.8 shall be in full force and
effect;
(b) Seller, Servicer and Trustee may deal with the Clearing
Agency for all purposes (including the making of distributions on the
Certificates and the taking of actions by the Holders) as the
authorized representative of the Certificate Owners;
(c) to the extent that the provisions of this Section 5.8
conflict with any other provisions of this Agreement, the provisions
of this Section 5.8 shall control;
(d) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law, the rules, regulations and procedures of the Clearing Agency
and agreements between such Certificate Owners and the Clearing Agency
and all references in this Agreement to actions by Holders shall refer
to actions taken by the Clearing Agency upon instructions from the
Clearing Agency Participants, and all references in this Agreement to
distributions, notices, reports and statements to Holders shall refer
to distributions, notices, reports and statements to the
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Clearing Agency or its nominee, as registered holder of the
Certificates, as the case may be, for distribution to Certificate
Owners in accordance with the rules, regulations and procedures of the
Clearing Agency; and
(e) pursuant to the Depository Agreement, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the Certificates to the Clearing Agency Participants, for
distribution by such Clearing Agency Participants to the Certificate
Owners or their nominees.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Certificates evidencing specified percentages of the aggregate outstanding
principal balance of such Certificates, such direction or consent may be given
by Certificate Owners having interests in the requisite percentage, acting
through the Clearing Agency.
Section 5.9 Notices to Clearing Agency. Whenever notice or other
communication to the Holders is required under this Agreement unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant to
Section 5.10, Trustee shall give all such notices and communications specified
herein to be given to Holders to the Clearing Agency.
Section 5.10 Definitive Certificates. If (a) (i) Servicer advises
Trustee in writing that the Clearing Agency is no longer willing or able
properly to discharge its responsibilities under the Depository Agreement and
(ii) Trustee or Servicer is unable to locate a qualified successor, (b)
Servicer, at its option, advises Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency or (c) after the occurrence of
a Servicer Termination Event, Certificate Owners representing in the aggregate
not less than a majority of the aggregate outstanding principal balance of the
Certificates, advise 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 Certificate Owners' best interests, Trustee
shall notify the Clearing Agency which shall be responsible to notify the
Certificate Owners of the occurrence of any such event and of the availability
of Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to Trustee by the Clearing Agency of the Certificates registered in
the name of the nominee of the Clearing Agency, accompanied by re-registration
instructions from the Clearing Agency for registration, Trustee shall execute,
on behalf of the Trust, authenticate and deliver Definitive Certificates in
accordance with such instructions. Seller shall arrange for, and will bear all
costs of, the printing and issuance of such Definitive Certificates. Neither
Seller, Servicer nor Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, Trustee shall
recognize the Holders of the Definitive Certificates as Holders hereunder.
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ARTICLE VI
SELLER.
Section 6.1 Representations and Warranties of Seller. Seller makes the
following representations and warranties, on which Trustee relies in accepting
the Receivables and the other Trust Property in trust and executing and
authenticating the Certificates. Such representations are made as of the
execution and delivery of this Agreement, but shall survive the sale, transfer
and assignment of the Receivables and the other Trust Property to the Trust.
(a) Organization and Good Standing. Seller has been duly
organized and is validly existing as a Delaware limited liability
company in good standing under the laws of the State of Delaware, with
the power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is
presently conducted and had at all relevant times, and has, full
power, authority and legal right to acquire, own and sell the
Receivables and the other Trust Property.
(b) Power and Authority. Seller has the power, authority and
legal right to execute and deliver this Agreement and the Related
Agreements to which it is a party and to carry out their respective
terms and to sell and assign the property to be sold and assigned to
and deposited with Trustee as Trust Property; and the execution,
delivery and performance of this Agreement and the Related Agreements
to which it is a party have been duly authorized by Seller by all
necessary limited liability company action.
(c) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement or the
Related Agreements to which it is a party or the consummation of the
transactions contemplated hereby or thereby, other than (i) as may be
required under the blue sky or securities laws of any State or the
Securities Act of 1933, as amended, and (ii) the filing of UCC
financing statements.
(d) Valid Sale; Binding Obligation. Seller intends this Agreement
to effect a valid sale, transfer, and assignment of the Receivables
and the other Trust Property conveyed by Seller to the Trust
hereunder, enforceable against creditors of and purchasers from
Seller; and each of this Agreement and the Related Agreements to which
it is a party constitutes a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its respective
terms, subject, as to enforceability, to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation
and other similar laws
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affecting enforcement of the rights of creditors generally and to
equitable limitations on the availability of specific remedies.
(e) No Violation. The execution, delivery and performance by
Seller of this Agreement and the Related Agreements to which it is a
party and the consummation of the transactions contemplated hereby and
thereby will not conflict with, result in any material breach of any
of the terms and provisions of, constitute (with or without notice or
lapse of time) a material default under or result in the creation or
imposition of any Lien upon any of its material properties pursuant to
the terms of, (i) the organic documents of Seller, (ii) any material
indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which Seller is a party or by which Seller
is bound, or (iii) any law, order, rule or regulation applicable to
Seller of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over Seller.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Seller, threatened, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties: (i) asserting the invalidity of this Agreement or any
Related Agreement, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Related Agreement, (iii) seeking
any determination or ruling that might materially and adversely affect
the performance by Seller of its obligations under, or the validity or
enforceability of, this Agreement or any Related Agreement or (iv)
that may materially and adversely affect the federal or state income,
excise, franchise or similar tax attributes of the Certificates.
(g) Chief Executive Office. The chief executive office of Seller
is _______________.
Section 6.2 Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which Seller may be merged or
consolidated, (b) that may result from any merger, conversion or consolidation
to which Seller is a party, or (c) that may succeed by purchase and assumption
to all or substantially all of the business of Seller, where Seller in any of
the foregoing cases is not the surviving entity, which corporation or other
entity shall execute an agreement of assumption to perform every obligation of
Seller under this Agreement, shall be the successor to Seller hereunder without
the execution or filing of any document or any further act by any of the parties
to this Agreement; provided that (x) Servicer shall have delivered to Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such merger,
conversion, consolidation or succession and such agreement of assumption comply
with this Section, and (y) Servicer shall have delivered to Trustee an Opinion
of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and
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protect the interest of Trustee in the Receivables, and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to fully preserve and protect such interest. Seller
shall promptly inform Trustee and each Rating Agency of any such merger,
conversion, consolidation or purchase and assumption, where Seller is not the
surviving entity.
Section 6.3 Limitation on Liability of Seller and Others. Seller and
any director or officer or employee or agent of Seller may rely in good faith on
the advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising under this
Agreement or any Related Agreement (provided that such reliance shall not limit
in any way Seller's obligations under Section 3.2). Seller shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under this Agreement, and that in its opinion
may involve it in any expense or liability.
ARTICLE VII
SERVICER.
Section 7.1 Representations and Warranties of Servicer. Servicer makes
the following representations and warranties on which Trustee relies in
accepting the Receivables and the other Trust Property in trust and in
authenticating the Certificates. These representations are made as of the
Closing Date, but shall survive the sale, transfer and assignment of the
Receivables and the other Trust Property to the Trust.
(a) Organization and Good Standing. Servicer has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are presently owned and such business is presently conducted, and had
at all relevant times, and shall have, the power, authority and legal
right to service the Receivables and the other Trust Property.
(b) Due Qualification. Servicer shall be duly qualified to do
business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its
business (including the servicing of the Receivables as required by
this Agreement) shall require such qualifications.
(c) Power and Authority. Servicer has the power, authority and
legal right to execute and deliver this Agreement and the Related
Agreements to which it is a party and to carry out their respective
terms; and the execution, delivery and performance of this Agreement
and the Related Agreements to
49
which it is a party have been duly authorized by Servicer by all
necessary corporate action.
(d) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement, the
Related Agreements to which it is a party or the consummation of the
transactions contemplated hereby or thereby, other than the filing of
UCC financing statements.
(e) Binding Obligation. Each of this Agreement and the Related
Agreements to which it is a party constitutes a legal, valid and
binding obligation of Servicer, enforceable against Servicer in
accordance with its respective terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement
of the rights of creditors of banks generally and to equitable
limitations on the availability of specific remedies.
(f) No Violation. The execution, delivery and performance by
Servicer of this Agreement and the Related Agreements to which it is a
party and the consummation of the transactions contemplated hereby and
thereby will not conflict with, result in any material breach of any
of the terms and provisions of, constitute (with or without notice or
lapse of time) a material default under, or result in the creation or
disposition of any Lien upon any of its material properties pursuant
to the terms of, (i) the articles of association or bylaws of
Servicer, (ii) any material indenture, contract, lease, mortgage, deed
of trust or other instrument or agreement to which Servicer is a party
or by which Servicer is bound, or (iii) any law, order, rule or
regulation applicable to Servicer of any federal or state regulatory
body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over Servicer.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to Servicer's knowledge, threatened, before any court,
regulatory body, administrative agency, or tribunal or other
governmental instrumentality having jurisdiction over Servicer or its
properties: (i) asserting the invalidity of this Agreement, any
Related Agreement or the Certificates, (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or any Related Agreement,
(iii) seeking any determination or ruling that might materially and
adversely affect the performance by Servicer of its obligations under,
or the validity or enforceability of, this Agreement, any Related
Agreement or the Certificates, or (iv) that may materially and
adversely affect the federal or state income, excise, franchise or
similar tax attributes of the Certificates.
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Section 7.2 Indemnities of Servicer. (a) Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by Servicer under this Agreement.
(b) Servicer shall indemnify, defend and hold harmless Trustee,
Seller, the Holders and any of the officers, directors, employees and
agents of Trustee or Seller from any and all costs, expenses, losses,
claims, damages and liabilities (including reasonable attorneys' fees
and expenses) to the extent arising out of, or imposed upon any such
Person through, the gross negligence, willful misfeasance or bad faith
(other than errors in judgment) of Servicer in the performance of its
obligations and duties under this Agreement or in the performance of
the obligations and duties of any subservicer under any subservicing
agreement.
(c) Servicer shall indemnify, defend and hold harmless Trustee
and its officers, directors, employees and agents from and against any
taxes that may at any time be asserted against any such Person with
respect to the transactions contemplated in this Agreement or in the
other Related Agreements, including any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or
license taxes, or any taxes of any kind which may be asserted (but not
including any Federal or other income taxes arising out of
transactions contemplated by this Agreement and the other Related
Agreements) against the Trust, and costs and expenses in defending
against the same.
(d) Servicer shall indemnify, defend and hold harmless Trustee,
Seller and the Holders or any of the officers, directors, employees
and agents of Trustee or Seller from any and all costs, expenses,
losses, claims, damages and liabilities (including reasonable
attorneys' fees and expenses) to the extent arising out of or imposed
upon any such Person as a result of any compensation payable to any
subcustodian or subservicer (including any fees payable in connection
with the release of any Receivable File from the custody of such
subservicer or in connection with the termination of the servicing
activities of such subservicer with respect to any Receivable) whether
pursuant to the terms of any subservicing agreement or otherwise.
(e) Servicer shall indemnify, defend and hold harmless Trustee,
Seller and the Holders or any of the directors, officers, employees
and agents of Trustee and Seller from and against any and all costs,
expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel and expenses of litigation,
arising out of or resulting from the use, ownership, or operation by
Servicer or any Affiliate thereof of any Financed Vehicle.
Indemnification under this Section shall survive the resignation or removal of
Trustee and the termination of this Agreement and shall include reasonable fees
and expenses of counsel and
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other expenses of litigation. If Servicer shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such payments
are made thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to Servicer, without interest.
Section 7.3 Merger or Consolidation of or Assumption of the
Obligations of Servicer. Any corporation or other entity (a) into which Servicer
may be merged or consolidated, (b) that may result from any merger, conversion,
or consolidation to which Servicer is a party, (c) that may succeed by purchase
and assumption to all or substantially all of the business of Servicer or (d)
50% of the voting stock of which is owned directly or indirectly by VW Credit,
where, in the case of clauses (a), (b) and (c), Servicer is not the surviving
entity, which corporation or other entity in any of the foregoing cases shall
execute an agreement of assumption to perform every obligation of Servicer under
this Agreement, shall be the successor to Servicer under this Agreement without
any further act on the part of any of the parties to this Agreement; provided
that, unless VW Credit is the surviving party to such transaction (x) Servicer
shall have delivered to Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such merger, conversion, consolidation or succession
and such agreement of assumption comply with this Section, and (y) Servicer
shall have delivered to Trustee an Opinion of Counsel either (A) stating that,
in the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of Trustee in the
Receivables, and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to fully preserve
and protect such interest. Servicer shall promptly inform Trustee and each
Rating Agency of any such merger, conversion, consolidation or purchase and
assumption where Servicer is not the surviving entity.
Section 7.4 Limitation on Liability of Servicer and Others. Neither
Servicer nor any of its directors, officers, employees or agents shall be under
any liability to the Trust or the Holders, except as provided under this
Agreement, for any action taken or for refraining from the taking of any action
by Servicer or any subservicer pursuant to this Agreement or for errors in
judgment; provided that this provision shall not protect Servicer or any such
Person against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or gross negligence in the performance of duties
(except for errors in judgment) or by reason of reckless disregard of
obligations and duties under this Agreement. Servicer or any subservicer and any
of their respective directors, officers, employees or agents may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising under this Agreement.
Except as provided in this Agreement, Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided that Servicer may (but shall not be required to) undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the Related Agreements to protect the interests of the Holders
under this Agreement and the Related
52
Agreements. In such event, the legal expense and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Servicer.
Section 7.5 VW Credit, Inc. Not To Resign as Servicer. Subject to the
provisions of Section 7.3, VW Credit, Inc. hereby agrees not to resign from the
obligations and duties hereby imposed on it as Servicer under this Agreement
except upon determination that the performance of its duties hereunder shall no
longer be permissible under applicable law or if such resignation is required by
regulatory authorities. Notice of any such determination permitting the
resignation of VW Credit, Inc. as Servicer shall be communicated to Trustee at
the earliest practicable time (and, if such communication is not in writing,
shall be confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to Trustee concurrently with or promptly after such notice. No such
resignation shall become effective until the earlier of Trustee or a successor
Servicer having assumed the responsibilities and obligations of the resigning
Servicer in accordance with Section 8.2 or the date upon which any regulatory
authority requires such resignation.
Section 7.6 Servicer May Own Certificates. Servicer, and any Affiliate
of Servicer, may, in its individual or any other capacity, become the owner or
pledgee of Certificates with the same rights as it would have if it were not
Servicer or an Affiliate thereof, except as otherwise provided in the definition
of "Holder", "Class A Holder" and "Class B Holder" in Section 1.1. Certificates
so owned by or pledged to Servicer or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates, except as
otherwise provided in the definitions of "Class A Holder" and "Class B Holder".
Section 7.7 Existence. Subject to the provisions of Section 7.3,
during the term of this Agreement, VW Credit, Inc. will keep in full force and
effect its existence, rights and franchises as a corporation under the laws of
the jurisdiction of its organization.
ARTICLE VIII
SERVICING TERMINATION.
Section 8.1 Servicer Termination Events. (a) Any one of the following
events shall constitute a "Servicer Termination Event":
(i) any failure by Servicer to deliver to Trustee a Servicer's
Report for any Collection Period, which failure shall continue
beyond the related Deposit Date;
(ii) any failure by Servicer to deliver to any Account or the
Reserve Account any payment or deposit required to be so
delivered or paid under the terms of the Certificates and this
Agreement, or to direct Trustee to
53
make any required distribution from any Account or the Reserve
Account, which failure shall continue unremedied for a period of
five Business Days after written notice is received from the
Trustee by Servicer or after discovery of such failure by
Servicer (or, in the case of a payment or deposit to be made no
later than a Deposit Date immediately preceding a Distribution
Date, the failure to make such payment or deposit by such
Distribution Date);
(iii) any failure on the part of Servicer to duly observe or to
perform in any material respect any other covenants or agreements
set forth in the Certificates or in this Agreement, which failure
shall (A) materially and adversely affect the rights of Holders
(which determination shall be made without regard to whether
funds are available to the Holders pursuant to the Reserve
Account) and (B) continue unremedied for a period of 60 days
after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given (1) to Servicer by
Trustee, or (2) to Trustee and Servicer by the Holders of
Certificates representing not less than 25% of the outstanding
principal amount of the Certificates (or for such longer period,
not in excess of 120 days, as may be reasonably necessary to
remedy such default; provided that such default is capable of
remedy within 120 days and Servicer delivers an Officer's
Certificate to Trustee to such effect and to the effect that
Servicer has commenced or will promptly commence, and will
diligently pursue, all reasonable efforts to remedy such
default);
(iv) the entry of a decree or order by a court or agency or
supervisory authority of competent jurisdiction for the
appointment of a conservator, receiver, liquidator or trustee for
Servicer, Seller, Transferor, or any of their respective
successors, in any bankruptcy, receivership, conservatorship,
insolvency or similar proceedings, or for the winding up or
liquidation of its affairs, and any such decree or order
continues unstayed and in effect for a period of 60 consecutive
days; or
(v) the consent by Servicer, Seller, Transferor, or any of their
respective successors, to the appointment of a conservator,
receiver, liquidator or trustee in any bankruptcy, receivership,
conservatorship, insolvency or similar proceedings of or relating
to such Person or relating to substantially all of its property,
the admission in writing by such Person of its inability to pay
its debts generally as they become due, the filing by such Person
of a petition to take advantage of any applicable bankruptcy,
receivership, conservatorship, insolvency or similar statute, the
making by such Person of an assignment for the benefit of its
creditors or the voluntary suspension by such Person of payment
of its obligations.
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Upon the occurrence of any Servicer Termination Event, and so long as a Servicer
Termination Event shall not have been remedied, either Trustee, or the Majority
Holders, by notice then given in writing to Servicer, may terminate all of the
rights and obligations of Servicer (other than the obligations set forth in
Section 7.2) under this Agreement. On or after the receipt by Servicer of such
written notice, all authority and power of Servicer under this Agreement,
whether with respect to the Certificates or the Trust Property or otherwise,
shall pass to and be vested in Trustee or such successor Servicer as may be
appointed under Section 8.2 pursuant to this Section 8.1; and thereupon Trustee
shall be authorized and empowered to execute and deliver, on behalf of Servicer,
as attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement of the Receivable Files or the Physical Damage
Insurance Policies, the certificates of title to the Financed Vehicles, or
otherwise. Servicer shall cooperate with Trustee or any successor Servicer in
effecting the termination of its responsibilities and rights as Servicer under
this Agreement, including the transfer to Trustee or any successor Servicer for
administration of all cash amounts that are at the time held by Servicer for
deposit, shall have been deposited by Servicer in the Collection Account, or
thereafter shall be received with respect to a Receivable, all Receivable Files
and all information or documents that Trustee or such successor Servicer may
require. In addition, Servicer shall transfer its electronic records relating to
the Receivables to the successor Servicer in such electronic form as the
successor Servicer may reasonably request and shall transfer to the successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and at such times as the
successor Servicer shall reasonably request. All reasonable out-of-pocket costs
and expenses incurred by the successor Servicer in connection with the transfer
of servicing shall be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses.
(b) If any of the foregoing Servicer Termination Events occur,
Trustee shall have no obligation to notify Holders or any other Person
of such occurrence prior to the continuance of such event through the
end of any cure period specified in Section 8.1(a).
Section 8.2 Trustee to Act; Appointment of Successor Servicer. Upon
Servicer's resignation pursuant to Section 7.5 or upon Servicer's receipt of
notice of termination as Servicer pursuant to Section 8.1, Trustee shall be the
successor in all respects to Servicer in its capacity as Servicer under this
Agreement, and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on Servicer by the terms and provisions of
this Agreement, except that Trustee, when acting as successor Servicer, shall
not be obligated to purchase Receivables pursuant to Section 3.7 unless the
obligation to repurchase arose after the date of the notice of termination given
to Servicer pursuant to Section 8.1, and neither Trustee nor any successor
Servicer shall be liable for any acts or omissions of the terminated Servicer or
for any breach by such Servicer of any of its representations or warranties
contained herein or in any related documents or agreements. As compensation
therefor, Trustee shall be entitled to the same Servicing Fees (whether payable
out of the Collection Account or otherwise) and Supplemental Servicing Fees as
Servicer would have been entitled to under this Agreement if no
55
such notice of termination or resignation had been given. Notwithstanding the
above, Trustee may appoint, or petition a court of competent jurisdiction to
appoint, an Eligible Servicer as the successor to the terminated Servicer under
this Agreement; provided that Trustee shall continue to be the successor to
Servicer until another successor Servicer shall have assumed the
responsibilities and obligations of Servicer. In connection with such
appointment, Trustee may make such arrangements for the compensation of such
successor Servicer out of payments on Receivables as it and such successor shall
agree, which shall in no event be greater than the Servicing Fees and
Supplemental Servicing Fees payable to VW Credit, Inc. as Servicer hereunder.
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. No Servicer
shall resign or be relieved of its duties under this Agreement until a newly
appointed Servicer shall have assumed the responsibilities and obligations of
the terminated Servicer under this Agreement.
Section 8.3 Effect of Servicing Transfer. (a) After the transfer of
servicing hereunder, Trustee or successor Servicer shall notify Obligors to make
directly to the successor Servicer payments that are due under the Receivables
after the effective date of such transfer.
(b) Except as provided in Sections 7.2 and 9.8 after the transfer
of servicing hereunder, the predecessor Servicer shall have no further
obligations with respect to the management, administration, servicing,
custody or collection of the Receivables and the successor Servicer
shall have all of such obligations, except that the predecessor
Servicer will transmit or cause to be transmitted directly to the
successor Servicer for its own account, promptly on receipt and in the
same form in which received, any amounts held by the predecessor
Servicer (properly endorsed where required for the successor Servicer
to collect any such items) received as payments upon or otherwise in
connection with the Receivables and the predecessor Servicer shall
continue to cooperate with the successor Servicer by providing
information and in the enforcement of the Dealer Agreements and the
Physical Damage Insurance Policies.
(c) A transfer of servicing hereunder shall not affect the rights
and duties of the parties hereunder other than those relating to the
management, administration, servicing, custody or collection of the
Receivables and the other Trust Property. The successor Servicer
shall, upon its appointment pursuant to Section 8.2 and as part of its
duties and responsibilities under this Agreement, promptly take all
action it deems necessary or appropriate so that the predecessor
Servicer (in whatever capacity) is paid or reimbursed all amounts it
is entitled to receive under this Agreement on each Distribution Date
subsequent to the date on which it is terminated as Servicer
hereunder. Without limiting the generality of the foregoing, the
predecessor Servicer will be entitled to receive all accrued and
unpaid Servicing Fees and Supplemental Servicing Fees through and
including the effective date of the termination of the predecessor
Servicer.
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(d) Any successor Servicer shall provide Seller with access to
the Receivable Files and to the successor Servicer's records (whether
written or automated) with respect to the Receivable Files. Such
access shall be afforded without charge, but only upon reasonable
request and during normal business hours at the offices of the
successor Servicer. Nothing in this Section shall affect the
obligation of the successor Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors, and the
failure of Servicer to provide access to information as a result of
such obligation shall not constitute a breach of this Section.
Section 8.4 Notification to Holders. Upon any notice of a Servicer
Termination Event or upon any termination of, or appointment of a successor to,
Servicer pursuant to this Article VIII, Trustee shall give prompt written notice
thereof to Holders at their respective addresses of record, and to each Rating
Agency.
Section 8.5 Waiver of Past Servicer Termination Events. The Majority
Holders may, on behalf of all Holders of Certificates, waive any Servicer
Termination Event hereunder and its consequences, except an event resulting from
the failure to make any required deposits or payments to the Collection Account
in accordance with this Agreement. Upon any such waiver of a past Servicer
Termination Event, such event shall cease to exist and shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other event or impair any right arising therefrom, except
to the extent expressly so waived.
Section 8.6 Transfer of Accounts. Notwithstanding the provisions of
Section 8.1, if any of the Accounts or the Reserve Account is maintained with
Servicer or an Affiliate of Servicer and a Servicer Termination Event shall
occur and be continuing, Servicer shall promptly, and in any event within five
Business Days, give notice to Trustee of such Servicer Termination Event, and
Trustee, within _____ days after the receipt of such notice, shall establish new
Eligible Deposit Accounts conforming with the requirements of this Agreement and
promptly shall transfer all funds in any such Accounts or the Reserve Account to
such new Eligible Deposit Accounts.
ARTICLE IX
TRUSTEE.
Section 9.1 Acceptance by Trustee. Trustee hereby acknowledges its
acceptance of all right, title and interest in and to the Receivables and the
other Trust Property conveyed by Seller pursuant to this Agreement and hereby
declares that Trustee holds and shall hold such right, title and interest, upon
the trust set forth in this Agreement.
Section 9.2 Duties of Trustee. (a) Trustee, both prior to and after
the curing of a Servicer Termination Event, undertakes to perform only such
duties as are specifically set forth
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in this Agreement and no implied covenants or obligations shall be read into
this Agreement against Trustee. If a Servicer Termination Event, of which an
Authorized Officer of Trustee has actual knowledge, shall have occurred and
shall not have been cured (the appointment of a successor Servicer (including
Trustee) to constitute a cure for the purposes of this Article), Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and shall
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
provided that if Trustee assumes the duties of Servicer pursuant to Section 8.2,
Trustee in performing such duties shall use the degree of skill and attention
required by Section 3.1.
(b) Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments
furnished to Trustee that are required specifically to be furnished
pursuant to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed to relieve
Trustee from liability for its own negligent action, its own negligent
failure to act, its own willful misfeasance or its own bad faith;
provided that:
(i) Prior to the occurrence of a Servicer Termination Event, and
after the curing of all such Servicer Termination Events that may
have occurred, the duties and obligations of Trustee shall be
determined solely by the express provisions of this Agreement,
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against Trustee, the permissible right of Trustee
(solely in its capacity as such) to do things enumerated in this
Agreement shall not be construed as a duty and, in the absence of
bad faith on the part of Trustee, or manifest error, Trustee
(solely in its capacity as such) may conclusively rely on the
truth of the statements and the correctness of the opinions
expressed in any certificates or opinions furnished to Trustee
and conforming to the requirements of this Agreement;
(ii) Trustee shall not be personally liable for an error of
judgment made in good faith by an officer of Trustee, unless it
shall be proved that Trustee shall have been negligent in
performing its duties in accordance with the terms of this
Agreement; and
(iii) Trustee shall not be personally liable with respect to any
action taken, suffered, or omitted to be taken in good faith in
accordance with the direction of the Majority Holders, as set
forth in Section 8.1, relating to the time, method and place of
conducting any proceeding or any remedy
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available to Trustee, or exercising any trust or power conferred
upon Trustee, under this Agreement.
(d) Except for the willful misfeasance, bad faith or negligence
of Trustee, Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or indemnity satisfactory to it against such
risk or liability shall not be reasonably assured to it, and none of
the provisions contained in this Agreement shall in any event require
Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of Servicer under this Agreement except
during such time, if any, as Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, Servicer in
accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or Financed Vehicle
or to impair the value of any Receivable or Financed Vehicle.
(f) Trustee shall have no power to vary the corpus of the Trust
including (i) accepting any substitute obligation for a Receivable
initially assigned to Trustee under this Agreement, (ii) adding any
other investment, obligation or security, or (iii) withdrawing any
Receivable, except for a withdrawal permitted under this Agreement.
Section 9.3 Trustee's Certificate. As soon as practicable after each
Deposit Date on which Receivables shall be assigned to Seller pursuant to
Section 2.4 or 10.2 or to Servicer pursuant to Section 3.7, as applicable,
Trustee shall execute a certificate, prepared by Servicer, including its date
and the date of the Agreement, and accompanied by a copy of Servicer's Report
for the related Collection Period. Trustee's certificate shall operate, as of
such Deposit Date, as an assignment pursuant to Section 9.4.
Section 9.4 Trustee's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by Servicer pursuant to Section 2.4 or
Section 10.2, or purchased by Servicer pursuant to Section 3.7 or Section 10.2,
Trustee shall assign, without recourse, representation or warranty, to Servicer,
all of Trustee's right, title and interest in and to such Receivables, and all
security and documents and all other Trust Property conveyed pursuant to Section
2.1 with respect to such Receivables. Such assignment shall be a sale and
assignment outright, and not for security. If, in any enforcement suit or legal
proceeding, it is held that Servicer, may not enforce any such Receivable on the
ground that it shall not be a real party in interest or a holder entitled to
enforce the Receivable, Trustee shall, at the expense of Servicer,
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take such steps as Servicer, deems necessary to enforce the Receivable,
including bringing suit in Trustee's name or the names of the Holders.
Section 9.5 Certain Matters Affecting Trustee. Except as otherwise
provided in Section 9.2:
(a) Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon, any resolution, certificate of
auditors or accountants or any other certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, appraisal, bond, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties.
(b) Trustee may consult with counsel knowledgeable in the area
and any opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted
by it under this Agreement in good faith and in accordance with such
written opinion of Counsel a copy of which shall be provided to Seller
and Servicer.
(c) Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or in relation
to this Agreement, at the request, order or direction of any of the
Holders pursuant to the provisions of this Agreement, unless such
Holders shall have offered to Trustee security or indemnity
satisfactory to Trustee against the costs, expenses, and liabilities
that may be incurred therein or thereby. Nothing contained in this
Agreement, however, shall relieve Trustee of the obligations, upon the
occurrence of a Servicer Termination Event that is not timely cured or
waived pursuant to Section 8.5, to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;
provided that if Trustee assumes the duties of Servicer pursuant to
Section 8.2, Trustee in performing such duties shall use the degree of
skill and attention required by Section 3.1.
(d) Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by this Agreement.
(e) Prior to the occurrence of a Servicer Termination Event and
after the curing of all Servicer Termination Events that may have
occurred, Trustee shall not be bound to make any investigation into
the facts of any matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
direction, order, approval, bond, note or other paper or
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document, unless requested in writing so to do by the Majority
Holders; provided that if the payment within a reasonable time to
Trustee of the costs, expenses, or liabilities likely to be incurred
by it in the making of an investigation requested by the Holders is,
in the opinion of Trustee, not reasonably assured to Trustee by the
security afforded to it by the terms of this Agreement, Trustee may
require indemnity satisfactory to it against such cost, expense, or
liability as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by Servicer, or, if paid by
Trustee, shall be reimbursed by Servicer upon demand. Nothing in this
clause (e) shall affect the obligation of Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Obligors; provided further, that Trustee shall be entitled to make
such further inquiry or investigation into such facts or matter as it
may reasonably see fit, and if Trustee shall determine to make such
further inquiry or investigation it shall be entitled to examine the
books and records of Servicer, personally or by agent or attorney, at
the sole cost and expense of Servicer.
(f) Trustee may execute any of the trusts or powers hereunder or
perform any duties under this Agreement either directly or by or
through agents, attorneys, nominees or a custodian, and shall not be
liable for the acts of such agents, attorney, nominees or custodians
except for (i) acts of ________ or any successor agent carrying out
Trustee's obligations with respect to the preparation of Servicer
Reports and (ii) acts of any other agent, attorney, nominee or
custodian if (A) Trustee has not acted with due care in their
appointment or (B) Seller has not consented to their appointment.
(g) Trustee shall not be required to make any initial or periodic
examination of any documents or records related to the Receivables or
Financed Vehicles for the purpose of establishing the presence or
absence of defects, the compliance by Seller with its representations
and warranties or for any other purpose.
(h) Trustee shall not be construed to be a guarantor of the
performance of Servicer, nor shall Trustee have any duty to monitor
the performance of Servicer other than as expressly stated in this
Agreement.
(i) Trustee shall not be required to take notice or be deemed to
have notice of any Servicer Termination Event hereunder, except a
Servicer Termination Event under Section 8.1(a)(i) or (ii), unless
Trustee shall be specifically notified in writing of such Servicer
Termination Event by Servicer, Seller or any Holder. All notices or
other instruments required by this Agreement to be delivered to
Trustee shall be delivered at the Corporate Trust Office and, in the
absence of such notice so delivered, Trustee may conclusively assume
there is no Servicer Termination Event except as aforesaid.
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Section 9.6 Trustee Not Liable for Certificates or Receivables.
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Certificates (other than the certificate of authentication on
the Certificates). Except as expressly provided herein, Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than Trustee's execution of, and the certificate of
authentication on, the Certificates), or of any Receivable or related document,
or for the validity of the execution by Seller and Servicer of this Agreement or
of any supplements hereto or instruments of further assurance, or for the
sufficiency of the Trust Property hereunder, and Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenants,
conditions or agreements on the part of Servicer under this Agreement except as
herein set forth; but Trustee may require Servicer to provide full information
and advice as to the performance of the aforesaid covenants, condition and
agreements. Trustee (solely in its capacity as such) shall have no obligation to
perform any of the duties of Servicer, except as explicitly set forth in this
Agreement. Trustee shall have no liability in connection with compliance of
Servicer with statutory or regulatory requirements to the Receivables. Trustee
shall not make or be deemed to have made any representations or warranties with
respect to the Receivables or the validity or sufficiency of any assignment of
the Receivables to the Trust or Trustee. Trustee (solely in its capacity as
such) shall at no time have any responsibility or liability for, or with respect
to, the legality, validity or enforceability of any security interest in any
Financed Vehicle or (prior to the time, if any, that Servicer is terminated as
custodian hereunder) any Receivable, or the perfection and priority of such a
security interest or the maintenance of any such perfection and priority, the
efficacy of the Trust or its ability to generate funds sufficient to provide for
the payments to be distributed to Holders under this Agreement, the existence,
condition, location, and ownership of any Financed Vehicle, the existence and
enforceability of the Insurance Policies, the existence and contents of any
Receivable or any computer or other record thereof, the validity of the
assignment of any Receivable to the Trust or of any intervening assignment, the
completeness of any Receivable, the performance or enforcement of any
Receivable, the compliance by Seller with any warranty or representation made
under this Agreement or in any related document and the accuracy, of any such
warranty or representation, prior to Trustee's receipt of notice or other
discovery of any noncompliance therewith or any breach thereof, any investment
of monies by Servicer or any loss resulting therefrom (it being understood that
Trustee shall remain responsible for any Trust Property that it may hold), the
acts or omissions of Seller, Servicer, or any Obligor, any action of Servicer
taken in the name of Trustee, or any action by Trustee taken at the instruction,
of Servicer (provided that such instruction is not in express violation of the
terms and provisions of this Agreement); provided that the foregoing shall not
relieve Trustee of its obligation to perform its duties under this Agreement.
Except with respect to a claim based on the failure of Trustee to perform its
duties under this Agreement (whether in its capacity as Trustee or as successor
Servicer) or based on Trustee's willful misconduct, negligence, or bad faith, or
based on Trustee's breach of a representation and warranty contained in Section
9.14, no recourse shall be had to Trustee (whether in its individual capacity or
as Trustee) for any claim based on any provision of this Agreement, the
Certificates, or any Receivable or assignment thereof against Trustee in its
individual capacity; Trustee shall not have any personal obligation, liability,
or
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duty whatsoever to any Holder or any other Person with respect to any such
claim. Trustee shall not be accountable for the use or application by Seller of
the proceeds of such Certificates, or for the use or application of any funds
paid to Servicer in respect of the Receivables prior to the time such amounts
are deposited in the Collection Account (whether or not the Collection Account
is maintained with Trustee). Trustee shall have no liability for any losses from
the investment or reinvestment in Eligible Investments made in accordance with
Section 4.1.
Section 9.7 Trustee May Own Certificates. Trustee in its individual or
any other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if it were not Trustee.
Section 9.8 Trustee's Fees and Expenses. Servicer agrees to pay to
Trustee, and Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts created by this Agreement and in the exercise and performance of any
of the powers and duties under this Agreement as Trustee, and Servicer shall pay
or reimburse Trustee upon its request for all reasonable expenses (including
expenses incurred in connection with notices or other communications to
Holders), disbursements and advances (including the reasonable compensation and
the reasonable expenses and disbursements of its counsel and of all persons not
regularly in its employ) incurred or made by Trustee in accordance with any of
the provisions of this Agreement (including the reasonable fees and expenses of
its agents, any co-trustee and counsel) or in defense of any action brought
against it in connection with this Agreement except any such expense,
disbursement or advance as may arise from its negligence, willful misfeasance,
or bad faith. Servicer's covenant to pay the expenses, disbursements and
advances provided for in the preceding sentence shall survive the termination of
this Agreement.
Section 9.9 Eligibility Requirements for Trustee. Trustee shall at all
times be organized and doing business under the banking laws of the United
States or of any state thereof, shall be authorized under such laws to exercise
corporate trust powers, shall have a consolidated net worth of at least
$50,000,000 and shall be subject to supervision or examination by federal or
state banking authorities. If Trustee shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section 9.9,
the consolidated net worth of such Trustee shall be deemed to be its
consolidated capital and surplus as set forth in its most recent consolidated
report of condition so published. In case at any time Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.9, Trustee shall
resign immediately in the manner and with the effect specified in Section 9.10.
Section 9.10 Resignation or Removal of Trustee. (a) Trustee may at any
time resign and be discharged from the trusts hereby created by giving 30 days'
prior written notice thereof to Servicer. Upon receiving such notice of
resignation, Servicer shall promptly appoint a successor Trustee, by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor Trustee
63
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee;
provided, however, that such right to appoint or to petition for the appointment
of any such successor shall in no event relieve the resigning Trustee from any
obligations otherwise imposed on it under this Agreement and the Related
Agreements until such successor has in fact assumed such appointment.
(b) If at any time Trustee shall cease to be eligible in
accordance with the provisions of Section 9.9 and shall fail to resign
after written request therefor by Servicer, or if at any time Trustee
shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver, conservator or liquidator of Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then Servicer
may remove Trustee. If Trustee is removed under the authority of the
immediately preceding sentence, Servicer shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to Trustee so removed, the
successor Trustee, the Holders at their respective addresses of record
and the Rating Agencies.
(c) Any resignation or removal of Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section
9.10 shall not become effective until acceptance of appointment by the
successor Trustee pursuant to Section 9.11.
(d) The respective obligations of Seller and Servicer described
in this Agreement shall survive the removal or resignation of Trustee
as provided in this Agreement.
Section 9.11 Successor Trustee. (a) Any successor Trustee appointed
pursuant to Section 9.10 shall execute, acknowledge, and deliver to Servicer and
to its predecessor Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all rights, powers, duties, and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Trustee. The predecessor Trustee shall deliver to the
successor Trustee all documents and statements held by it under this Agreement,
and Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties, and obligations.
(b) No successor Trustee shall accept appointment as provided in
this Section 9.11 unless at the time of such acceptance such successor
Trustee shall be eligible pursuant to Section 9.9.
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(c) Upon acceptance of appointment by a successor Trustee
pursuant to this Section 9.11, Servicer shall mail notice of such
acceptance by the successor Trustee under this Agreement to all
Holders at their respective addresses of record and to the Rating
Agencies. If Servicer shall fail to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense
of Servicer.
(d) No predecessor Trustee shall be liable for the acts or
omissions of any successor Trustee.
Section 9.12 Merger or Consolidation of or Assumption of Obligations
of Trustee. Any corporation or banking association which is eligible to be a
successor Trustee under Section 9.9 (a) into which Trustee may be merged or
consolidated, (b) that may result from any merger, conversion or consolidation
to which Trustee shall be a party, or (c) that may succeed by purchase and
assumption to the business of Trustee, where Trustee is not the surviving
entity, which corporation or banking association executes an agreement of
assumption to perform every obligation of Trustee under this Agreement, shall be
the successor of 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. Trustee shall promptly notify Servicer
and each Rating Agency of any such merger, conversion, consolidation or purchase
and assumption where Trustee is not the surviving entity.
Section 9.13 Appointment of Co-Trustee or Separate Trustee. (a)
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 Property or any Financed Vehicle may at the time be located,
Servicer and Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by Trustee to
act as co-trustee, jointly with Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Holders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 9.13, such
powers, duties, obligations, rights, and trusts as Servicer and Trustee may
consider necessary or desirable. If Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or in
case a Servicer Termination Event shall have occurred and be continuing, Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee under this Agreement shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 9.9 and no notice to Holders of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 9.11. Notwithstanding the appointment of a co-trustee or separate
trustee hereunder, Trustee shall not be relieved of any of its obligations under
this Agreement.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
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(i) All rights, powers, duties, and obligations conferred or
imposed upon Trustee shall be conferred upon and exercised or
performed by 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 Trustee
joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee under this Agreement or as
successor to Servicer under this Agreement), 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 Property 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 Trustee.
(ii) No trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement.
(iii) Servicer and Trustee acting jointly may at any time accept
the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to 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 in particular to the provisions 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
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, Trustee. Each such instrument shall be
filed with Trustee and a copy thereof given to Servicer.
(d) Any separate trustee or co-trustee may, at any time, appoint
Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee. Trustee shall promptly notify Servicer and each Rating Agency
of any appointment made pursuant to this Section 9.13.
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Section 9.14 Representations and Warranties of Trustee. Trustee makes
the following representations and warranties on which Seller, Servicer, and
Holders may rely:
(a) Organization and Good Standing. Trustee is a _______________
duly organized, validly existing, and in good standing under the laws
of ____________.
(b) Power and Authority. Trustee has full power, authority and
legal right to execute, deliver, and perform this Agreement and the
Related Agreements and has taken all necessary action to authorize the
execution, delivery, and performance by it of this Agreement and the
Related Agreements to which it is a party.
(c) Enforceability. This Agreement and the Related Agreements to
which it is a party have been duly executed and delivered by Trustee
and this Agreement and such Related Agreements constitute legal, valid
and binding obligations of Trustee enforceable against Trustee in
accordance with their respective terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights generally and except as such
enforceability may be limited by equitable limitations on the
availability of specific remedies.
(d) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance by Trustee of this
Agreement, the Related Agreements or the consummation of the
transactions contemplated hereby or thereby.
(e) No Violation. The execution, delivery and performance by
Trustee of this Agreement and the Related Agreements and the
consummation of the transactions contemplated hereby and thereby will
not conflict with, result in any breach of the terms and provisions
of, constitute (with or without notice or lapse of time) a default
under, or result in the creation or disposition of any Lien upon any
of its properties pursuant to the terms of, (i) the articles of
association or by-laws of Trustee, (ii) any indenture, contract,
lease, mortgage, deed of trust or other instrument or agreement to
which Trustee is a party or by which Trustee is bound or to which any
of its properties are subject, or (iii) any law, order, rule or
regulation applicable to Trustee or its properties of any federal or
state regulatory body, any court, administrative agency or other
governmental instrumentality having jurisdiction over Trustee or any
of its properties.
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Section 9.15 Reports by Trustee. Trustee shall provide to any Holder
or Certificate Owner who so requests in writing (addressed to the Corporate
Trust Office) a copy of any Servicer's Report, the annual statement described in
Section 3.10, and the annual accountant's examination described in Section 3.11.
Trustee may require any Holder or Certificate Owner requesting such report to
pay a reasonable sum to cover the cost of Trustee's complying with such request.
Section 9.16 Tax Returns. Servicer shall prepare or shall cause to be
prepared any tax returns on Form 1065 (or other applicable form) required to be
filed by the Trust and shall remit such returns to Trustee for signature at
least five days before such returns are due to be filed. Trustee, upon request,
will furnish Servicer with all such information actually known to an Authorized
Officer of Trustee as may be reasonably required in connection with the
preparation of all tax returns of the Trust, and shall, upon request, execute
such returns. Servicer shall prepare the tax returns of the Trust in accordance
with the Code and any regulations (including, to the extent applicable by their
terms, proposed regulations) thereunder.
Section 9.17 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by Trustee without the possession of
any of the Certificates or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by Trustee shall be brought in its
own name as trustee. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
Trustee, its agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been obtained.
ARTICLE X
TERMINATION.
Section 10.1 Termination of the Trust. (a) The Trust, and the
respective obligations and responsibilities of Seller, Servicer and Trustee
hereunder, shall terminate (except as otherwise expressly provided herein) upon
the earliest of: (i) the Distribution Date next succeeding the purchase by
Servicer at its option, pursuant to Section 10.2, of the Receivables (other than
Defaulted Receivables) remaining in the Trust, (ii) the payment to Holders of
all amounts required to be paid to them pursuant to this Agreement or (iii) the
Distribution Date next succeeding the month which is six months after the
maturity or the liquidation of the last Receivable held in the Trust and the
disposition of any amounts received upon liquidation of any property remaining
in the Trust; provided that in no event shall the Trust created by this
Agreement continue beyond the expiration of 21 years from the death of the last
survivor of the descendants living on the date of this Agreement of ▇▇▇▇ ▇▇▇▇▇▇▇
of the Commonwealth of Massachusetts. Servicer shall promptly notify Trustee of
any prospective termination pursuant to this Section 10.1.
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(b) Notice of any termination, specifying the Distribution Date
upon which the Holders may surrender the Certificates to Trustee for
payment of the final distribution and cancellation, shall be given
promptly by Trustee by letter to Holders of record and the Rating
Agencies mailed not earlier than the 15th day and not later than the
25th day of the month next preceding the specified Distribution Date
stating the amount of any such final payment and that the Record Date
otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the
Certificates at the office of Trustee therein specified. Upon
presentation and surrender of the Certificates, Trustee shall cause to
be distributed to Holders amounts distributable on such Distribution
Date pursuant to Section 4.5. Amounts remaining in the Trust after
distribution, or after setting aside all funds required for
distribution, to the Holders shall be distributed to the Transferor.
(c) In the event that all of the Holders shall not surrender
their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, Trustee shall give a
second written notice to the remaining Holders to surrender their
Certificates for cancellation and receive the final distribution with
respect thereto. Trustee shall after giving such notice to deliver or
cause to be delivered to Servicer the Certificate Register. If within
one year after the second notice all the Certificates shall not have
been surrendered for cancellation, Servicer may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact
the remaining Holders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets that
shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by
Trustee to the Transferor.
Section 10.2 Optional Purchase of All Receivables. If the Pool Factor
shall be .1000000 or less as of the last day of any Collection Period, Servicer
shall have the option to purchase the remaining Trust Property on any
Distribution Date occurring in a subsequent Collection Period. To exercise such
option, Servicer shall deposit the aggregate Purchase Amount for the remaining
Receivables (other than Defaulted Receivables) into the Collection Account on
the Deposit Date occurring in the month in which such repurchase is to be
effected. The payment shall be made in the manner specified in Section 4.4, and
shall be distributed pursuant to Section 4.5. Upon such payment Servicer shall
succeed to and own all interests in and to the Trust Property (subject to the
rights of the Holders to receive a final distribution on the related
Distribution Date).
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ARTICLE XI
MISCELLANEOUS PROVISIONS.
Section 11.1 Amendment. (a) This Agreement may be amended by Seller,
Servicer and Trustee, without the consent of any of the Holders, for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or modifying in any manner the rights of the
Holders; provided that such action shall not, as evidenced by an Opinion of
Counsel to Seller delivered to Trustee, materially and adversely affect the
interests of any Holder.
(b) [This Agreement may be amended by Seller, Servicer and
Trustee without the consent of any of the Holders to add, modify or
eliminate such provisions as may be necessary or advisable in order to
enable (i) the transfer to the Trust of all or any portion of the
Receivables to be derecognized under generally accepted accounting
principles ("GAAP") by Seller to the Trust, (ii) the Trust to avoid
becoming a member of Seller's consolidated group under GAAP; or (iii)
the Seller, the Transferor or any of their Affiliates to otherwise
comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle; it being a condition
to any such amendment that each Rating Agency will have notified the
Seller, the Servicer and the Trustee in writing that the amendment
will not result in a reduction or withdrawal of the rating of any
outstanding Certificates with respect to which it is a Rating Agency.]
(c) This Agreement may also be amended from time to time by
Seller, Servicer and Trustee, with the consent of the Majority
Holders, 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 Holders; provided that no
such amendment shall (i) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made on any
Certificate without the consent of all adversely affected Holders,
(ii) reduce the percentage of the aggregate outstanding principal
balance of the Certificates, the Holders of which are required to
consent to any such amendment, without the consent of all Holders,
(iii) materially and adversely affect the interests of either the
Class A Holders or the Class B Holders without the consent of the
Holders of Class A Certificates or Class B Certificates, as the case
may be, evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates or the Class
B Certificates, as the case may be, or (iv) cause either Rating Agency
to downgrade or withdraw its rating of the Class A Certificates or the
Class B Certificates without the consent of Holders of Class A
Certificates or Class B Certificates, as the case may be, evidencing
more than 66 2/3% of the aggregate outstanding principal balance of
70
the Class A Certificates or the Class B Certificates, as the case may
be. Promptly after the execution of any such amendment or consent,
Trustee shall furnish written notification of the substance of such
amendment or consent to each Holder.
(d) It shall not be necessary for the consent of Holders pursuant
to this Section 11.1 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 of evidencing the authorization of the execution thereof by
Holders shall be subject to such reasonable requirements as Trustee
may prescribe.
(e) Notice of any amendment of this Agreement shall be sent by
Servicer to each Rating Agency, at such address as such Rating Agency
may from time to time specify in writing.
(f) In connection with any amendment pursuant to this Section
11.1 Trustee shall be entitled to receive an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the
Agreement.
Section 11.2 Protection of Title to Trust Property. (a) Servicer shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of the
Holders and Trustee under this Agreement in the Trust Property and in the
proceeds thereof. Servicer shall deliver (or cause to be delivered) to Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing. If Servicer fails to perform
its obligations under this subsection, Trustee may (but shall not be obligated
to) do so, at the expense of Servicer.
(b) Neither Seller nor Servicer shall change its name, identity
or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by Servicer in
accordance with subsection (a) misleading within the meaning of the
UCC, unless it shall have given Trustee at least 60 days' prior
written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or
continuation statements.
(c) Seller and Servicer shall give Trustee at least 60 days'
prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing
statement. Seller and Servicer shall at all times maintain each office
from which it shall service Receivables, and its principal executive
office, within the United States of America.
71
(d) Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the
reader thereof to know at any time the status of such Receivable,
including payments and recoveries made and payments owing (and the
nature of each), and (ii) reconciliation between payments or
recoveries on (or with respect to) each Receivable and the amounts
from time to time deposited in the Collection Account in respect of
such Receivable.
(e) Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to
Trustee, Servicer's master computer records (including archives) that
shall refer to a Receivable indicate clearly that such Receivable is
owned by the Trust. Indication of the Trust's ownership of a
Receivable shall be deleted from or modified on Servicer's computer
systems when, and only when, the Receivable shall be paid or shall
become a Purchased Receivable.
(f) If at any ▇▇▇▇ ▇▇▇▇▇▇, the Transferor or Servicer shall
propose to sell, grant a security interest in or otherwise transfer
any interest in motor vehicle loans and/or retail installment sales
contracts to any prospective purchaser, lender or other transferee,
Seller, Transferor Servicer, as the case may be, shall give to such
prospective purchaser, lender or other transferee computer tapes,
records or printouts (including any restored from archives) that, if
they shall refer in any manner whatsoever to any Receivable, shall
indicate clearly that such Receivable has been sold and is owned by
the Trust.
(g) Upon request, Servicer, at its expense, shall furnish to
Trustee, within thirty days, a list of all Receivables then held as
part of the Trust, together with a reconciliation of such list to each
Schedule of Receivables and to each of Servicer's Reports furnished
pursuant to Section 3.9 indicating removal of Receivables from the
Trust.
(h) Servicer shall deliver to Trustee upon the Closing Date, and
upon the execution and delivery of each amendment, if any, of this
Agreement an Opinion of Counsel to Servicer either (i) stating that,
in the opinion of such counsel, no filings or other action, other than
the filings required in the appropriate filing offices as described in
such opinion, are necessary to perfect and maintain (A) the security
interest of Trustee in the Financed Vehicles, subject to the
exceptions stated therein, and (B) the interest of Trustee in the
Receivables and the proceeds thereof against third parties, subject to
the exceptions stated therein, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such
details are given, or (ii) stating that, in the opinion of such
counsel, no such action shall be necessary to perfect or complete the
perfected status of such interest.
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(i) Servicer shall permit Trustee and its agents, at the expense
of Trustee (except after a Servicer Termination Event, in which case
such cost will be at the expense of Servicer), at any time to inspect,
audit and make copies of and abstracts from Servicer's records
regarding any Receivables then or previously included in the Trust.
Section 11.3 Limitation on Rights of Holders. (a) The death or
incapacity of any Holder shall not operate to terminate this Agreement or the
Trust, or entitle the Holder's legal representatives or heirs to claim an
accounting or to take any action or commence any proceeding in any court for a
partition or winding up of the Trust, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
(b) No Holder shall have any right to vote (except as expressly
provided herein) or in any manner otherwise control the operation and
management of the Trust or the obligations of the parties to this
Agreement, nor shall anything set forth in this Agreement, or
contained in the terms of the Certificates, be construed so as to
constitute the Holders as partners or members of an association; nor
shall any Holder be under any liability to any third party by reason
of any action taken pursuant to any provision of this Agreement.
(c) No Holder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect
to this Agreement, unless such Holder previously shall have given to
Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless, with respect to the Class A
Certificates, Class A Holders evidencing not less than a majority of
the aggregate outstanding principal balance of the Class A
Certificates or, with respect to the Class B Certificates, Class B
Holders evidencing not less than a majority of the aggregate
outstanding principal balance of the Class B Certificates, shall have
made written request upon Trustee to institute such action, suit or
proceeding in its own name as Trustee under the Agreement and shall
have offered to Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or
thereby, and Trustee, for _ days after its receipt of such notice,
request and offer of indemnity satisfactory to it, shall have
neglected or refused to institute any such action, suit or proceeding;
no one or more Holders of Certificates shall have any right in any
manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of the Certificates, or to obtain
or seek to obtain priority over or preference to any other such Holder
or to enforce any right under this Agreement, except in the manner
provided in this Agreement and for the equal, ratable and common
benefit of all Class A Holders or Class B Holders, as the case may be.
For the protection and enforcement of the provisions of this Section
11.3, each Holder
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and Trustee shall be entitled to such relief as can be given either at
law or in equity.
Section 11.4 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS; EXCEPT THAT
THE GRANT OF A SECURITY INTEREST IN THE RESERVE ACCOUNT PROPERTY AND THE
PERFECTION, EFFECT OF PERFECTION, AND PRIORITY OF SUCH SECURITY INTEREST SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF ______________.
Section 11.5 Notices. All demands, notices, and communications under
this Agreement shall be in writing, personally delivered, or sent by telecopier,
overnight mail or mailed by certified mail, return receipt requested, and shall
be deemed to have been duly given upon receipt (a) in the case of Seller to
_____________, Attention: _______________; (b) in the case of Servicer, to
_______________, Attention: ______________; (c) in the case of Trustee, at the
Corporate Trust Office, facsimile number: ______________; (d) [in the case of
Moody's, at the following address: ▇▇▇▇▇'▇ Investors Service, Inc., ABS
Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇]; (e) in the case of [Standard & Poor's, at the following
address: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Asset Backed Surveillance Department, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇]; and (f)
in the case of Fitch, to __________________. Any notice required or permitted to
be mailed to a Holder shall be given by first class mail, postage prepaid, at
the address of record of such Holder. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Holder shall receive such notice.
Section 11.6 Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement, and shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
Section 11.7 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 2.5, 3.1, 6.3 and 7.3, this
Agreement may not be assigned by Seller or Servicer. This Agreement may not be
assigned by Trustee except as provided by Sections 9.10 through 9.13.
Section 11.8 Certificates Nonassessable and Fully Paid. The interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and, upon authentication
thereof by Trustee pursuant to Section 5.1, each Certificate shall be deemed
fully paid.
74
Section 11.9 Intention of Parties. (a) The execution and delivery of
this Agreement shall constitute an acknowledgment by Seller and Trustee, on
behalf of the Holders, that it is intended that the assignment and transfer
herein contemplated constitute a sale and assignment outright, and not for
security, of the Receivables and the other Trust Property, conveying good title
thereto free and clear of any liens, from Seller to the Trust, and that the
Receivables and the other Trust Property shall not be a part of Seller's estate
in the event of the insolvency, receivership, conservatorship or the occurrence
of another similar event, of, or with respect to, Seller. In the event that such
conveyance is determined to be made as security for a loan made by the Trust or
the Holders to the Seller, the parties intend that Seller shall have granted to
Trustee a security interest in all of Seller's right, title and interest in and
to the Trust Property conveyed to the Trust pursuant to Section 2.1, and that
this Agreement shall constitute a security agreement under applicable law.
(b) The execution and delivery of this Agreement shall constitute
an acknowledgment by Seller and Trustee on behalf of the Holders that
they intend that the Trust be classified (for Federal tax purposes) as
a grantor trust under Subpart E, Part I of Subchapter J of the
Internal Revenue Code of which the Holders are owners, rather than as
an association taxable as a corporation. The powers granted and
obligations undertaken in this Agreement shall be construed so as to
further such intent.
Section 11.10 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 11.11 Further Assurances. Seller and Servicer agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by Trustee more fully to effect the
purposes of this Agreement, including without limitation, the execution of any
financing statements or continuation statements relating to the Receivables for
filing under the provisions of the UCC of any applicable jurisdiction.
Section 11.12 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Trustee or the Holders, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges therein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 11.13 Regulation AB. The Servicer shall cooperate fully with
the Seller and the Trust to deliver to the Seller and the Trust (including any
of its assignees or designees) any and all statements, reports, certifications,
records and any other information necessary in the good faith determination of
the Seller or the Issuer to permit the Seller to comply with the
75
provisions of Regulation AB, together with such disclosures relating to the
Servicer and the Receivables, or the servicing of the Receivables, reasonably
believed by the Seller to be necessary in order to effect such compliance.
Section 11.14 Information to Be Provided by the Trustee. (a) For so
long as the Trust is required to report under the Exchange Act, the Trustee
shall (i) on or before the fifth Business Day of each month, provide to the
Seller, in writing, such information regarding the Trustee as is requested by
the Seller (if any) for the purpose of compliance with Item 1117 of Regulation
AB; provided, however, that the Trustee shall not be required to provide such
information in the event that there has been no change to the information
previously provided by the Trustee to Seller, and (ii) as promptly as
practicable following notice to or discovery by a Responsible Officer of the
Trustee of any changes to such information, provide to the Seller, in writing,
such updated information.
(b) As soon as available but no later than March 15 of each
calendar year for so long as the Trust is required to report under the
Exchange Act, commencing in [____________], the Trustee shall:
(i) deliver to the Seller a report regarding the Trustee's
assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under paragraph
(b) of Rule 13a-18, Rule 15d-18 of the Exchange Act and Item 1122
of Regulation AB. Such report shall be signed by an authorized
officer of the Trustee, and shall address each of the Servicing
Criteria specified in Exhibit D or such criteria as mutually
agreed upon by the Seller and the Trustee;
(ii) deliver to the Seller a report of a registered public
accounting firm that attests to, and reports on, the assessment
of compliance made by the Indenture Trustee and delivered
pursuant to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act; and
(iii) deliver to the Seller and any other Person that will be
responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d) under
the Exchange Act (pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002) on behalf of the Issuer or the Seller substantially
in the form attached hereto as Exhibit E or such form as mutually
agreed upon by the Seller and the Trustee.
THE TRUSTEE ACKNOWLEDGES THAT THE PARTIES IDENTIFIED IN CLAUSE
(III) ABOVE MAY RELY ON THE CERTIFICATION PROVIDED BY THE TRUSTEE
PURSUANT TO SUCH CLAUSE IN SIGNING A SARBANES CERTIFICATION AND FILING
SUCH WITH THE COMMISSION.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
VOLKSWAGEN AUTO LEASE UNDERWRITTEN
FUNDING, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VW CREDIT, INC., Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
, Trustee
-------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
77
SCHEDULE A
LOCATION OF RECEIVABLE FILES
S-1
FORM OF CLASS A CERTIFICATE
EXHIBIT A
----------
_____% ASSET BACKED CERTIFICATE, CLASS A
Evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of fixed rate simple interest retail motor
vehicle loans and/or retail installment sales contracts (the "Receivables")
secured by the new and used automobiles and light duty trucks financed thereby
(the "Financed Vehicles") and sold to the Trust by VOLKSWAGEN AUTO LEASE
UNDERWRITTEN FUNDING, LLC.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
_____________________________. THIS CERTIFICATE AND THE RECEIVABLES ARE NOT
DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NUMBER __________ CUSIP ________________
________________________________________________________________________________
Original Certificate Amount
Exhibit A to the Pooling and Servicing Agreement
A-1
THIS CERTIFIES THAT ___________________ is the registered owner of a
______________ dollars, nonassessable, fully paid, fractional undivided interest
in Volkswagen Auto Loan Enhanced Trust 200_-_ (the "Trust") formed pursuant to a
Pooling and Servicing Agreement dated as of ___________, 200_ (the "Agreement")
among Volkswagen Auto Lease Underwritten Funding, LLC, a Delaware limited
liability company (the "Seller"), VW Credit, Inc. (the "Servicer") and
_____________, a _______________, as trustee (the "Trustee").
To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate is
one of the duly authorized Certificates designated as "_____% Asset Backed
Certificates, Class A" (herein called the "Class A Certificates"). Also issued
under the Agreement are Certificates designated as "_____% Asset Backed
Certificates, Class B" (the "Class B Certificates"). The Class A Certificates
and the Class B Certificates are hereinafter collectively called the
"Certificates." This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement, to which the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The Trust Property includes (as more fully described in the Agreement)
a pool of Receivables, certain monies received under the Receivables after
___________ __, 200_ (the "Cutoff Date"), security interests in the Financed
Vehicles, and proceeds of the foregoing.
Subject to the terms and conditions of the Agreement (including the
availability of funds for distributions) and until the obligations created by
the Agreement shall have terminated in accordance therewith, there will be
distributed, but only from funds on deposit in the Class A Distribution Account,
on the _th day of each month or, if such _th day is not a Business Day, the next
succeeding Business Day (each such date, a "Distribution Date"), commencing
_________ __, 200_, to the Person in whose name this Certificate is registered
at the close of business on the last day of the preceding Collection Period (the
"Record Date"), such Holder's fractional undivided interest in the amounts to be
distributed to Class A Holders pursuant to the Agreement on such Distribution
Date.
Distributions on this Certificate will be made by Trustee by check
mailed to the Holder of record at its address as it appears in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon, except that with respect to a Certificate registered in
the name of a Clearing Agency or its nominee, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency maintained for that purpose by Trustee.
This Certificate does not purport to summarize the Agreement and
reference is hereby made to the Agreement for information with respect to the
rights, benefits, obligations and duties evidenced thereby.
A-2
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
Each Holder, by its acceptance of a Certificate or a beneficial
interest in a Certificate, acknowledges and agrees that they intend that the
Trust be classified (for Federal tax purposes) as a grantor trust under Subpart
E, Part I of Subchapter J of the Internal Revenue Code of which the Holders are
owners, rather than as an association taxable as a corporation.
IN WITNESS WHEREOF, Trustee, on behalf of the Trust, and not in its
individual capacity, has caused this Certificate to be duly executed.
VOLKSWAGEN AUTO LOAN ENHANCED
TRUST 200_-__
By: ,
-----------------------------------
as Trustee
By:
------------------------------------
Authorized Officer
DATED:
---------------------------------
[SEAL]
ATTEST:
--------------------------------
Authorized Officer
Trustee's Certificate of Authentication:
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
,
---------------------------------------
as Trustee
By:
------------------------------------
Authorized Officer
A-3
FORM OF CLASS B CERTIFICATE
EXHIBIT B
----------
_____% ASSET BACKED CERTIFICATE, CLASS B
Evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of fixed rate simple interest retail motor
vehicle loans and/or retail installment sales contracts (the "Receivables")
secured by the new and used automobiles and light duty trucks financed thereby
(the "Financed Vehicles") and sold to the Trust by Volkswagen Auto Lease
Underwritten Funding, LLC.
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF _________________________
THIS CERTIFICATE AND THE RECEIVABLES ARE NOT DEPOSITS AND ARE NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NUMBER __________ CUSIP ________________
________________________________________________________________________________
Original Certificate Amount
Exhibit B to the Pooling and Servicing Agreement
B-1
THIS CERTIFIES THAT ________________ is the registered owner of a
_________________ dollars, nonassessable, fully paid, fractional undivided
interest in the Volkswagen Auto Loan Enhanced Trust 200_-_ (the "Trust") formed
pursuant to a Pooling and Servicing Agreement dated as of ________ __, 200_ (the
"Agreement") among Volkswagen Auto Lease Underwritten Funding, LLC, a Delaware
limited liability company (the "Seller"), VW Credit, Inc. (the "Servicer") and
_____________, a _____________, as trustee (the "Trustee").
To the extent not otherwise defined herein, the capitalized terms used
herein have the meanings assigned to them in the Agreement. This Certificate is
one of the duly authorized Certificates designated as "_____% Asset Backed
Certificates, Class B" (herein called the "Class B Certificates"). Also issued
under the Agreement are Certificates designated as "_____% Asset Backed
Certificates, Class A" (the "Class A Certificates"). The Class A Certificates
and the Class B Certificates are hereinafter collectively called the
"Certificates." This Certificate is issued under and is subject to the terms,
provisions, and conditions of the Agreement, to which the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound. The Trust Property includes (as more fully described in the Agreement)
a pool of Receivables, certain monies received under the Receivables after
________ __, 200_ (the "Cutoff Date"), security interests in the Financed
Vehicles, and proceeds of the foregoing. The rights of the Holder of the Class B
Certificates are subordinated to the rights of the Holders of the Class A
Certificates to the extent set forth in the Agreement.
Subject to the terms and conditions of the Agreement (including the
availability of funds for distributions and the subordination of the Class B
Certificates) and until the obligations created by the Agreement shall have
terminated in accordance therewith, there will be distributed, but only from
funds on deposit in the Class B Distribution Account, on the _th day of each
month or, if such _th day is not a Business Day, the next succeeding Business
Day (each such date, a "Distribution Date"), commencing _______ _, 200_, to the
Person in whose name this Certificate is registered at the close of business on
the last day of the preceding Collection Period (the "Record Date"), such
Holder's fractional undivided interest in the amounts to be distributed to Class
B Holders pursuant to the Agreement on such Distribution Date.
Distributions on this Certificate will be made by Trustee by check
mailed to the Holder of record at its address as it appears in the Certificate
Register without the presentation or surrender of this Certificate or the making
of any notation hereon, except that with respect to a Certificate registered in
the name of a Clearing Agency or its nominee, distributions will be made by wire
transfer of immediately available funds. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency maintained for that purpose by Trustee.
This Certificate does not purport to summarize the Agreement and
reference is hereby made to the Agreement for information with respect to the
rights, benefits, obligations and duties evidenced thereby.
B-2
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
Each Holder, by its acceptance of a Certificate or a beneficial
interest in a Certificate, acknowledges and agrees that they intend that the
Trust be classified (for Federal tax purposes) as a grantor trust under Subpart
E, Part I of Subchapter J of the Internal Revenue Code of which the Holders are
owners, rather than as an association taxable as a corporation.
IN WITNESS WHEREOF, Trustee, on behalf of the Trust, and not in its
individual capacity, has caused this Certificate to be duly executed.
VOLKSWAGEN AUTO LOAN ENHANCED
TRUST 200_-__
By: , as Trustee
------------------------
By:
------------------------------------
Authorized officer
DATED:
---------------------------------
[SEAL]
ATTEST:
--------------------------------
Authorized Officer
Trustee's Certificate of Authentication:
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
, as Trustee
---------------------------
By:
------------------------------------
Authorized Officer
B-3
EXHIBIT C
Form of Servicer's Report
Exhibit C to the Pooling and Servicing Agreement
C-1
EXHIBIT D
SERVICING CRITERIA TO BE ADDRESSED IN
TRUSTEE'S ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Trustee shall address,
at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
[To be inserted]
Exhibit D to the Pooling and Servicing Agreement
D-1
EXHIBIT E
FORM OF TRUSTEE'S ANNUAL CERTIFICATION
RE: VOLKSWAGEN AUTO LOAN ENHANCED TRUST [______] - [________]
[ ____________________________], not in its individual capacity but
solely as indenture trustee (the "Trustee"), certifies to Volkswagen Auto Lease
Underwritten Funding, LLC (the "Seller"), and its officers, with the knowledge
and intent that they will rely upon this certification, that:
(1) It has reviewed the report on assessment of the Trustee's
compliance provided in accordance with Rules 13a-18 and 15d-18 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item
1122 of Regulation AB (the "Servicing Assessment"), and the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report") that were delivered by the Trustee
to the Seller pursuant to the Pooling and Servicing Agreement (the
"Agreement"), dated as of [________], by and between VW Credit, Inc., the
Seller, the Trustee and Volkswagen Auto Loan Enhanced Trust
[________] - [________] (collectively, the "Trustee Information");
(2) To the best of its knowledge, the Trustee Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light
of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Indenture Trustee
Information;
(3) To the best of its knowledge, all of the Trustee Information
required to be provided by the Trustee under the Agreement has been
provided to the Seller; and
(4) To the best of its knowledge, except as disclosed in the Servicing
Assessment or the Attestation Report, the Trustee has fulfilled its
obligations under the Agreement.
[__________________________], not in its
individual capacity but solely
as Trustee
Date: _________________________
Exhibit E to the Pooling and Servicing Agreement
E-1