EXHIBIT 10.97.3
AEGIS AUTO FUNDING CORP.,
a Delaware Corporation, Seller
and
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Trustee and Backup Servicer
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1996
$110,000,000
AEGIS AUTO RECEIVABLES TRUST 1996-3
AUTOMOBILE RECEIVABLE PASS-THROUGH
CERTIFICATES
TABLE OF CONTENTS
Page
ARTICLE I
INTRODUCTION
Section 1.01. Definitions. . . . . . . . . . . 1
Section 1.02. Usage of Terms . . . . . . . . . 20
Section 1.03. Cutoff Date and Record Date. . . 20
Section 1.04. Section References . . . . . . . 20
ARTICLE II
CREATION OF TRUST
Section 2.01. Conveyance and Acceptance by
Trustee. . . . . . . . . . . . . . . . . . 20
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of
Seller . . . . . . . . . . . . . . . . . . 22
Section 3.02. Repurchase or Substitution Upon
Breach . . . . . . . . . . . . . . . . . . 31
Section 3.03. Custody of Documents . . . . . . 32
Section 3.04. Duties of Custodian. . . . . . . 34
Section 3.05. Instructions; Authority to Act . 35
Section 3.06. Custodian Fees; Indemnification. 35
Section 3.07. Effective Period and Termination 35
Section 3.08. Funding Events . . . . . . . . . 35
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Servicing Duties . . . . . . . . 38
Section 4.02. Resignation of Backup Servicer.. 39
Section 4.03. Covenant of Backup Servicer. . . 39
Section 4.04. Servicing Fees . . . . . . . . . 40
Section 4.05. Costs and Expenses . . . . . . . 40
Section 4.06. Standard of Care . . . . . . . . 40
ARTICLE V
DISTRIBUTIONS; ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Accounts . . . . . . . . . . . . 41
Section 5.02. Collections. . . . . . . . . . . 41
Section 5.03. Application of Collections . . . 42
Section 5.04. Miscellaneous Servicer Collections 42
Section 5.05. Additional Deposits. . . . . . . 42
Section 5.06. Distributions. . . . . . . . . . 42
Section 5.07. Reserve Fund; Priority of
Distributions. . . . . . . . . . . . . . . 44
Section 5.08. Funding Account. . . . . . . . . 46
Section 5.09. Statements to Certificateholders; Tax
Returns. . . . . . . . . . . . . . . . . . 46
Section 5.10. Reliance on Information from the
Servicer . . . . . . . . . . . . . . . . . 50
ARTICLE VI
RIGHTS OF CERTIFICATEHOLDERS. . . . . . . . . . 50
ARTICLE VII
THE CERTIFICATES
Section 7.01. The Certificates . . . . . . . . 51
Section 7.02. Execution, Authentication of
Certificates . . . . . . . . . . . . . . . 51
Section 7.03. Registration of Transfer and
Exchange of Certificates . . . . . . . . . 51
Section 7.04. Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . 54
Section 7.05. Persons Deemed Owners. . . . . . 55
Section 7.06. Access to List of Certificateholders'
Names and Addresses. . . . . . . . . . . . 55
Section 7.07. Maintenance of Office or Agency. 55
Section 7.08. Notices to Certificateholders. . 55
ARTICLE VIII
THE SELLER
Section 8.01. Representations of Seller. . . . 55
Section 8.02. Liability of Seller; Indemnities 59
Section 8.03. Merger or Consolidation of, or
Assumption of the Obligations of,
Seller . . . . . . . . . . . . . . . . . . 59
Section 8.04. Limitation on Liability of Seller and
Others . . . . . . . . . . . . . . . . . . 60
Section 8.05. Seller May Own Certificates. . . 60
Section 8.06. Covenants of the Seller. . . . . 61
Section 8.07. Enforcement by Trustee . . . . . 62
Section 8.08. No Bankruptcy Petition . . . . . 65
ARTICLE IX
THE BACKUP SERVICER
Section 9.01. Representations of Backup Servicer 65
Section 9.02. Merger or Consolidation of, or
Assumption of the Obligations of, or
Resignation of Backup Servicer . . . . . . 66
Section 9.03. Limitation on Liability of Backup
Servicer and Others. . . . . . . . . . . . 66
Section 9.04. Successor Backup Servicer. . . . 67
Section 9.05. No Bankruptcy Petition . . . . . 67
ARTICLE X
BACKUP SERVICING DEFAULT
Section 10.01. Events of Backup Servicing Default
. . . . . . . . . . . . . . . . . . . . . 67
Section 10.02. Appointment of Successor. . . . 68
Section 10.03. Notification to Certificateholders 69
Section 10.04. Waiver of Past Defaults . . . . 69
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee . . . . . . . 70
Section 11.02. Trustee's Certificate . . . . . 72
Section 11.03. Trustee's Assignment of Purchased
Receivables. . . . . . . . . . . . . . . . 73
Section 11.04. Certain Matters Affecting Trustee 73
Section 11.05. Trustee Not Liable for Certificates
or Receivables . . . . . . . . . . . . . . 74
Section 11.06. Trustee May Own Certificates. . 75
Section 11.07. Trustee's Fees and Expenses . . 75
Section 11.08. Eligibility Requirements for Trustee
. . . . . . . . . . . . . . . . . . . . . 75
Section 11.09. Resignation or Removal of Trustee
. . . . . . . . . . . . . . . . . . . . . 76
Section 11.10. Successor Trustee . . . . . . . 76
Section 11.11. Merger or Consolidation of Trustee
. . . . . . . . . . . . . . . . . . . . . 77
Section 11.12. Appointment of Co-Trustee or
Separate Trustee . . . . . . . . . . . . . 77
Section 11.13. Representations and Warranties of
Trustee. . . . . . . . . . . . . . . . . . 78
Section 11.14. No Bankruptcy Petition. . . . . 79
ARTICLE XII
TERMINATION
Section 12.01. Termination of the Trust. . . . 79
Section 12.02. Optional Purchase of All
Receivables. . . . . . . . . . . . . . . . 81
Section 12.03. Notice. . . . . . . . . . . . . 81
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment . . . . . . . . . . . 81
Section 13.02. Protection of Title to Trust. . 82
Section 13.03. Limitation on Rights of
Certificateholders . . . . . . . . . . . . 83
Section 13.04. Governing Law . . . . . . . . . 84
Section 13.05. Notices . . . . . . . . . . . . 84
Section 13.06. Severability of Provisions. . . 85
Section 13.07. Assignment. . . . . . . . . . . 85
Section 13.08. Certificates Nonassessable and
Fully Paid . . . . . . . . . . . . . . . . 86
Section 13.09. Counterparts. . . . . . . . . . 86
Section 13.10. Limited Recourse to Seller. . . 86
EXHIBIT A: Forms of Certificates . . . . . . .A-1-1
EXHIBIT B: Depository Agreement . . . . . . . .B-1
EXHIBIT C: Form of Trustee's Statement to
Certificateholders . . . . . . . . . . . . . . . . .C-1
EXHIBIT D: Schedule of Receivables . . . . . . .D-1
EXHIBIT E: Location of Servicer Files . . . . .E-1
EXHIBIT F-1: Receivable Characteristics (Cutoff Date)F-1-1
EXHIBIT F-2: Receivable Characteristics (Funding Date)F-2-1
EXHIBIT G: Wiring Instructions Form . . . . . .G-1
EXHIBIT H: Fee Schedule. . . . . . . . . . . . .H-1
EXHIBIT I: Risk Default Insurance Policy . . . .I-1
EXHIBIT J: VSI Insurance Policy. . . . . . . . .J-1
EXHIBIT K: Form of Transferee Letter (Rule 144A
Transfer). . . . . . . . . . . . . . . . . . . . . K-1
EXHIBIT L: Form of Transferee Letter (Non-Rule 144A
Transfer). . . . . . . . . . . . . . . . . . . . . .L-1
EXHIBIT M: Form of ERISA Representation Letter .M-1
EXHIBIT N: Form of Notice of Funding . . . . . .N-1
EXHIBIT O: Form of Officer's Certificate . . . .O-1
EXHIBIT P: Assignment. . . . . . . . . . . . . .P-1
EXHIBIT Q: Review Firm Procedures. . . . . . . .Q-1
EXHIBIT R: Form of Trustee's Certificate . . . .R-1
EXHIBIT S: Schedule of Identified Receivables. .S-1
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1996
This POOLING AND SERVICING AGREEMENT, dated
as of September 1, 1996, is made among AEGIS AUTO
FUNDING CORP., a Delaware corporation, as Seller, NORWEST
BANK MINNESOTA, NATIONAL ASSOCIATION, as Backup
Servicer, and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee for the Trust.
WITNESSETH THAT, in consideration of the mutual
agreements herein contained, each party agrees as follows for the
benefit of the other parties and for the benefit of the
Certificateholders and the other beneficiaries to the extent provided
herein:
ARTICLE I
INTRODUCTION
Section 1.01. Definitions. Whenever used in this
Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
"Accounts" shall mean the accounts and funds identified in
Section 5.01 hereof.
"Additional Receivables" means all Receivables sold by the
Seller to the Trust after the Closing Date and during the Funding
Period, which shall be listed on Schedule A to the related
assignment, and each of which is identified on the schedule of
receivables attached as Exhibit S hereto.
"Aegis Finance" means Aegis Auto Finance, Inc., a
Delaware corporation, its successors and assigns.
"Aegis Finance Servicing Agreement" means the Servicing
Agreement dated as of September 1, 1996 among Aegis Finance,
the Backup Servicer and the Trustee, and all amendments,
modifications and supplements thereto.
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under
common control with such Person. A Person shall be deemed to
be "controlled by" any other Person if such other Person
possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
"Agreement" means this Pooling and Servicing Agreement
executed by the Seller, the Backup Servicer and the Trustee, and
all amendments, modifications and supplements thereto.
"ALFI" means American Lenders Facilities, Inc., a
California corporation, its successors and assigns.
"Amount Financed" means, with respect to a Receivable,
the amount advanced under the Receivable toward the purchase
price of the Financed Vehicle and any related costs.
"Annual Percentage Rate" or "APR" means, with respect
to a Receivable, the annual rate of finance charges stated in the
Receivable.
"Available Interest Distribution Amount" means, for any
Distribution Date, the sum of the following amounts with respect
to the preceding Collection Period: (i) that portion of all
collections of Scheduled Payments on Receivables allocable to
interest; (ii) Liquidation Proceeds and other Recoveries to the
extent allocable to interest due on Liquidated Receivables and
Defaulted Receivables in accordance with the Servicer's customary
servicing procedures; (iii) Risk Default Insurance Proceeds to the
extent allocable to interest as determined by the Servicer; (iv) the
earnings, if any, on amounts in the Funding Account accrued
during the related Collection Period, and for the Distribution Date
occurring on October 21, 1996, such earnings as have accrued to
such date; and (v) the Purchase Amount of each Receivable that
became a Purchased Receivable during the related Collection
Period to the extent attributable to accrued interest thereon;
provided, however, that in calculating the Available Interest
Distribution Amount the following will be excluded: all payments
and proceeds (including Liquidation Proceeds) of any Purchased
Receivables the Purchase Amount of which has been included in
the Principal Distributable Amount with respect to a prior
Distribution Date.
"Available Principal Distribution Amount" means, for any
Distribution Date, the sum of the following amounts with respect
to the preceding Collection Period: (i) that portion of all
collections of Scheduled Payments and prepayments in full or in
part on Receivables allocable to principal; (ii) Liquidation Proceeds
and other Recoveries allocable to the principal amount of
Liquidated Receivables and Defaulted Receivables in accordance
with the Servicer's customary servicing procedures; (iii) Risk
Default Insurance Proceeds to the extent not allocable to interest
as determined by the Servicer; (iv) amounts deposited in the
Collection Account pursuant to Section 3.02(b) in respect of
Receivables that became Substitute Receivables during the related
Collection Period; and (v) to the extent attributable to principal,
the Purchase Amount of each Receivable that became a Purchased
Receivable during the preceding Collection Period; provided,
however, that in calculating the Available Principal Distribution
Amount the following will be excluded: all payments and proceeds
(including Liquidation Proceeds) of any Purchased Receivables the
Purchase Amount of which has been included in the Principal
Distributable Amount with respect to a prior Distribution Date.
"Backup Servicer" means Norwest Bank Minnesota,
National Association, until any successor Backup Servicer is
appointed or succeeds to the duties and obligations of the Backup
Servicer hereunder, and thereafter means the Eligible Servicer
appointed successor Backup Servicer pursuant to Section 9.02 or
10.02.
"Backup Servicer Fee" means the fee payable to the Backup
Servicer for services rendered during the respective Collection
Period, determined in accordance with Exhibit H hereto.
"Bankruptcy Code" means the federal Bankruptcy Code of
1978, as amended, 11 USC SEC 101 through 1330.
"Business Day" means any day other than a Saturday, a
Sunday, or a day on which banking institutions in the cities in
which the principal offices of the Trustee or the Servicer are
located, or New York, New York, or Jersey City, New Jersey
shall be authorized or obligated by law, executive order, or
governmental decree to be closed. Any action required to be taken
on a day which falls on a non-Business Day shall be conducted on
the next Business Day.
"Certificate" means a Class A Certificate, a Class B
Certificate or a Class C Certificate.
"Certificate Account" means the trust account designated as
such, established and maintained pursuant to Section 5.01.
"Certificate Owner" means, with respect to any Certificate
held in book-entry form, the Person who is the beneficial owner
of such Certificate, as reflected on the books of the Clearing
Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such
Clearing Agency).
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar appointed pursuant to Section
7.03.
"Certificateholder" or "Holder" means the Person in whose
name the respective Certificate shall be registered in the Certificate
Register, except that, solely for the purposes of giving any
approval, consent, waiver, request or demand pursuant to this
Agreement, the interest evidenced by any Certificate registered in
the name of the Seller, the Servicer, the Backup Servicer, the
Trustee or any Affiliate of any of the foregoing shall not be taken
into account in determining whether the requisite percentage
necessary to effect any such consent, waiver, request or demand
shall have been obtained.
"Certificateholder Statement" means the Statement the form
of which is attached hereto as Exhibit C.
"Class" means all Certificates having the same priority of
payment and bearing the same alphabetical designation (A, B or
C).
"Class A Certificate" means any one of the Certificates
executed by the Trustee on behalf of the Trust and authenticated
by the Trustee in substantially the form set forth in Exhibit A-1
hereto.
"Class A Certificate Balance" shall equal, initially, the
Class A Percentage of the aggregate Principal Balance of the Initial
Receivables as of the initial Cutoff Date plus the Class A
Percentage of the Original Pre-Funded Amount and, thereafter, the
initial Class A Certificate Balance, reduced by all amounts
previously distributed to Class A Certificateholders as principal.
"Class A Distributable Amount" means, on any Distribution
Date, the sum of the Class A Interest Distributable Amount and
the Class A Principal Distributable Amount.
"Class A Interest Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class A Interest
Distributable Amount for such Distribution Date plus any
outstanding Class A Interest Carryover Shortfall from the previous
Distribution Date plus interest on such outstanding Class A Interest
Carryover Shortfall, to the extent permitted by law, at the Class A
Rate from such preceding Distribution Date through the current
Distribution Date, over the amount of interest that the holders of
the Class A Certificates actually received on such Distribution
Date.
"Class A Interest Distributable Amount" means, for any
Distribution Date, one-twelfth of the product of (x) the Class A
Rate and (y) the Class A Certificate Balance as of the close of
business on the preceding Distribution Date (or, with respect to the
initial Distribution Date, the Closing Date) (after giving effect to
any distribution of principal on the Class A Certificates made on
such preceding Distribution Date).
"Class A Percentage" means 93.25%.
"Class A Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class A Principal
Distributable Amount plus any outstanding Class A Principal
Carryover Shortfall from the preceding Distribution Date over the
amount of principal that the holders of the Class A Certificates
actually received on such Distribution Date pursuant to Section
5.06.
"Class A Principal Distributable Amount" means, with
respect to any Distribution Date, the Class A Percentage of the
Principal Distributable Amount.
"Class A Rate" means 8.80% of interest per annum. The
Class A Rate includes (i) at any time during the Funding Period,
the sum of (a) the Class B Rate multiplied by the Class A
Percentage multiplied by the Pool Balance, (b) 46.625 basis points
on the Pool Balance and (c) a portion of the amount contributed to
the Trust during the Funding Period by the Seller from amounts on
deposit in the Reserve Fund or otherwise allocable to the Reserve
Fund (including, but not limited to the Funding Account Interest
Amount) equal to the difference between (x) the Class A Rate
multiplied by the Class A Principal Balance and (y) the sum of
items (a) and (b) above and (ii) at any time after the Funding
Period, the sum of (a) the Class A Rate multiplied by the Class A
Percentage multiplied by the Pool Balance and (b) 46.625 basis
points on the Pool Balance. In no event will the Class A Rate
exceed 8.80% per annum.
"Class B Certificate" means any one of the Certificates
executed by the Trustee on behalf of the Trust and authenticated
by the Trustee in substantially the form set forth in Exhibit A-2
hereto.
"Class B Certificate Balance" shall equal, initially, the
Class B Percentage of the aggregate Principal Balance of the Initial
Receivables as of the initial Cutoff Date plus the Class B
Percentage of the Original Pre-Funded Amount and, thereafter, the
initial Class B Certificate Balance, reduced by all amounts
previously distributed to Class B Certificateholders as principal.
"Class B Distributable Amount" means, on any Distribution
Date, the sum of the Class B Interest Distributable Amount and the
Class B Principal Distributable Amount.
"Class B Interest Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class B Interest
Distributable Amount for such Distribution Date plus any
outstanding Class B Interest Carryover Shortfall from the previous
Distribution Date plus interest on such outstanding Class B Interest
Carryover Shortfall, to the extent permitted by law, at the Class B
Rate from such preceding Distribution Date through the current
Distribution Date, over the amount of interest that the holders of
the Class B Certificates actually received on such Distribution
Date.
"Class B Interest Distributable Amount" means, for any
Distribution Date, one-twelfth of the product of (x) the Class B
Rate and (y) the Class B Certificate Balance as of the close of
business on the preceding Distribution Date (or, with respect to the
initial Distribution Date, the Closing Date) (after giving effect to
any distribution of principal on the Class B Certificates made on
such preceding Distribution Date).
"Class B Percentage" means 4.75%.
"Class B Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class B Principal
Distributable Amount plus any outstanding Class B Principal
Carryover Shortfall from the preceding Distribution Date over the
amount of principal that the holders of the Class B Certificates
actually received on such Distribution Date pursuant to Section
5.06.
"Class B Principal Distributable Amount" means, as of any
Distribution Date, the Class B Percentage of the Principal
Distributable Amount.
"Class B Rate" means 8.30% of interest per annum.
"Class Certificate Balance" means, with respect to the
applicable Class of Certificates, the Class A Certificate Balance,
the Class B Certificate Balance or the Class C Certificate.
"Class C Certificate" means any one of the Certificates
executed by the Trustee on behalf of the Trust and authenticated
by the Trustee in substantially the form set forth in Exhibit A-3
hereto.
"Class C Certificate Balance" shall equal, initially, the
Class C Percentage of the aggregate Principal Balance of the Initial
Receivables as of the initial Cutoff Date plus the Class C
Percentage of the Original Pre-Funded Amount and, thereafter,
shall equal the initial Class C Certificate Balance, reduced by all
amounts previously distributed to Class C Certificateholders as
principal.
"Class C Distributable Amount" means, on any Distribution
Date, the sum of the Class C Interest Distributable Amount and the
Class C Principal Distributable Amount.
"Class C Interest Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class C Interest
Distributable Amount for such Distribution Date plus any
outstanding Class C Interest Carryover Shortfall from the previous
Distribution Date plus interest on such outstanding Class C Interest
Carryover Shortfall, to the extent permitted by law, at the Class C
Rate from such preceding Distribution Date through the current
Distribution Date, over the amount of interest that the holders of
the Class C Certificates actually received on such Distribution
Date.
"Class C Interest Distributable Amount" means, for any
Distribution Date, one-twelfth of the product of (x) the Class C
Rate and (y) the Class C Certificate Balance as of the close of
business on the preceding Distribution Date (or, with respect to the
initial Distribution Date, the Closing Date) (after giving effect to
any distribution of principal on the Class C Certificates made on
such preceding Distribution Date).
"Class C Percentage" means 2.0%.
"Class C Principal Carryover Shortfall" means, as of the
close of any Distribution Date, the excess of the Class C Principal
Distributable Amount plus any outstanding Class C Principal
Carryover Shortfall from the preceding Distribution Date over the
amount of principal that the holders of the Class C Certificates
actually received on such Distribution Date pursuant to Section
5.06.
"Class C Principal Distributable Amount" means, as of any
Distribution Date, the Class C Percentage of the Principal
Distributable Amount.
"Class C Rate" means 11.10% of interest per annum. The
Class C Rate includes (i) at any time during the Funding Period,
the sum of (a) the Class B Rate multiplied by the Class C
Percentage multiplied by the Pool Balance, (b) 5.6 basis points on
the Pool Balance and (c) a portion of the amount contributed to the
Trust during the Funding Period by the Seller from amounts on
deposit in the Reserve Fund or otherwise allocable to the Reserve
Fund (including, but not limited to the Funding Account Interest
Amount) equal to the difference between (x) the Class C Rate
multiplied by the Class C Principal Balance and (y) the sum of
items (a) and (b) above and (ii) at any time after the Funding
Period, the sum of (a) the Class B Rate multiplied by the Class C
Percentage multiplied by the Pool Balance and (b) 5.6 basis points
on the Pool Balance. In no event will the Class C Rate exceed
11.10% per annum.
"Class Factor" means, with respect to any Distribution
Date and any Class of Certificates, a seven-digit decimal figure
computed by the Trustee equal to the Class Certificate Balance of
such Class as of such Distribution Date divided by the Original
Class Certificate Balance thereof.
"Class Percentage" means, with respect to the applicable
Class of Certificates, the Class A Percentage, the Class B
Percentage or the Class C Percentage.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from
time to time a Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
"Closing Date" means September 12, 1996.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collection Account" means the trust account designated as
such, established and maintained pursuant to Section 5.01.
"Collection Period" means, with respect to a Distribution
Date, the calendar month immediately prior to such Distribution
Date. Any amount stated "as of the close of business of the last
day of a Collection Period" shall give effect to the following
calculations as determined as of the end of the day on such last
day: (1) all applications of collections, and (2) all distributions.
"Corporate Trust Office" means the office of the Trustee at
which its corporate trust business shall be administered, which
office at the date of this Agreement shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Services --Asset Backed
Administration, or such other address as shall be designated by the
Trustee in written notice to the Seller, the Backup Servicer, the
Servicer and each Certificateholder.
"Custodian" means the Person acting as Custodian of the
Trust pursuant to Section 3.03 of this Agreement, its successor in
interest and any successor custodian.
"Custodian Files" means the documents specified in Section
3.03(a).
"Cutoff Date" means September 1, 1996 with respect to the
Initial Receivables and the last Business Day of the calendar week
preceding the calendar week of a Funding Date with respect to any
Additional Receivables acquired on such Funding Date.
"DCR" means Duff & ▇▇▇▇▇▇ Credit Rating Co. or any
successors thereto.
"Dealer" means any licensed or franchised factory-
authorized motor vehicle dealer, or affiliate thereof, who sold a
Financed Vehicle to an Obligor and who originated the respective
Receivable which was acquired by Aegis Finance.
"Dealer Recourse" means, with respect to a Receivable, all
recourse rights against the Dealer that originated the Receivable,
and any successor Dealer.
"Defaulted Receivable" means any Receivable, other than
a Liquidated Receivable, as to which the Obligor became 180 days
past due in making Scheduled Payments during the prior Collection
Period.
"Delivery Date" has the meaning set forth in Section
3.08(b)(i).
"Depository Agreement" means the agreement entered
among the Seller, the Trustee and The Depository Trust Company,
as the initial Clearing Agency, in connection with the issuance of
the Class A and the Class B Certificates, substantially in the form
of Exhibit B.
"Determination Date" means, with respect to any
Distribution Date, the eighth (8th) Business Day of the calendar
month of such Distribution Date; provided, however, if such
Business Day is later than the eleventh (11th) day of such month,
then the Determination Date shall mean the next earlier Business
Day which is not later than the eleventh (11th) day of such
calendar month.
"Dissolution" means, with respect to the Seller, bankruptcy,
insolvency or dissolution.
"Distribution Date" means, for each Collection Period, the
20th day of the month following the month in which the Collection
Period ends, or if the 20th day is not a Business Day, the next
following Business Day, beginning on the Initial Distribution Date.
"Eligible Account" means a segregated account (except as
otherwise permitted with respect to the Lock-Box Account) which
may be an account maintained with the Trustee, which is either (a)
maintained with an Eligible Institution, or (b) a segregated trust
account or similar account maintained with a federally or state
chartered depository institution subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 C.F.R.
SEC 9.10(b).
"Eligible Institution" means a depository institution or trust
company whose long-term unsecured debt obligations are rated at
least "A" by each Rating Agency and either "A" by S&P or "A2"
by ▇▇▇▇▇'▇ (provided that, if only one such rating agency rates
such institution, such single rating shall suffice).
"Eligible Investments" means negotiable instruments or
securities or other investments (a) which, except in the case of
demand or time deposits, investments in money market funds and
repurchase obligations, are represented by instruments in bearer or
registered form or ownership of which is represented by book
entries by a clearing agency or by a Federal Reserve Bank in favor
of depository institutions eligible to have an account with such
Federal Reserve Bank who hold such investments on behalf of
their customers and (b) which evidence:
(i) direct obligations of, and obligations fully
guaranteed as to full and timely payment by, the United
States of America;
(ii) demand deposits, time deposits or certificates
of deposit of depository institutions or trust companies
incorporated under the laws of the United States of
America or any state thereof and subject to supervision and
examination by federal or state banking or depository
institution authorities; provided, however, that at the time
of the Trust's investment or contractual commitment to
invest therein, the short-term unsecured debt obligations of
such depository institution or trust company shall have
credit ratings from each Rating Agency and either S&P or
▇▇▇▇▇'▇ in the highest investment category granted by
each Rating Agency (and S&P or ▇▇▇▇▇'▇, as applicable);
(iii) commercial paper having, at the time of the
Trust's investment or contractual commitment to invest
therein, a rating from each Rating Agency and either S&P
or Moody's in the highest investment category by each
Rating Agency (and S&P or Moody's, as applicable);
(iv) bankers' acceptances issued by any
depository institution or trust company referred to in (ii)
above;
(v) investments in money market funds having
the highest investment category from each Rating Agency
or, if not rated by each Rating Agency, either S&P or
Moody's (provided that, for purposes of this definition,
such investments may include money market funds
sponsored by Norwest Bank Minnesota, National
Association, that have a credit rating from either S&P or
Moody's);
(vi) time deposits (having maturities of not more
than 30 days) or notes which are payable on demand by an
entity the commercial paper of which has the highest
investment category granted by each Rating Agency and
either S&P or Moody's; and
(vii) repurchase obligations with respect to any
security described in clause (i) above entered into with a
depository institution or trust company (acting as principal)
meeting the rating standards described in clause (ii) above.
Any Eligible Investments may be purchased by or through the
Trustee or any of its affiliates.
"Eligible Servicer" means any entity which, at the time of
its appointment as Backup Servicer, supervisory servicer, Servicer
or subservicer, and for so long as such entity is acting in such
capacity, (i) is servicing a portfolio of motor vehicle retail
installment sale contracts or motor vehicle loans, (ii) is legally
qualified (or is acting through an Affiliate which is legally
qualified) and has the capacity to service the Receivables, (iii) has
demonstrated the ability to professionally and competently service
a portfolio of similar contracts in accordance with industry
standards of skill and care, (iv) is qualified and entitled to use, and
agrees to maintain the confidentiality of, the software that the
Backup Servicer, supervisory servicer, Servicer or a subservicer
uses in connection with performing its duties and responsibilities
under this Agreement, a supervisory servicing agreement, the
Servicing Agreement or a subservicing agreement or obtains rights
to use or develops its own software which is adequate to perform
its duties and responsibilities under this Agreement, a supervisory
servicing agreement, the Servicing Agreement or a subservicing
agreement and (v) is approved by the Risk Default Insurer and
each Rating Agency.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA-Restricted Certificate" means any Class B or Class
C Certificate.
"Event of Backup Servicing Default" with respect to the
Backup Servicer means an event specified in Section 10.01.
"Event of Servicing Default" means an event specified in
paragraph VI of the Servicing Agreement.
"Excess Receipts" means, with respect to any Distribution
Date, the greater of (x) zero and (y) the remaining amount on
deposit in the Collection Account after distributions pursuant to
Section 5.06(d)(i) through (vii) have been made.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Final Funding Date" means the Funding Date upon which
the balance in the Funding Account is reduced to zero.
"Final Scheduled Distribution Date" means March 20,
2002.
"Financed Vehicle" means an automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Fitch" means Fitch Investors Service, L.P.
"Funding Account" means the trust account designated as
such, established and maintained pursuant to Sections 5.01 and
5.08 hereof.
"Funding Account Interest Amount" means an amount equal
to $32,000.
"Funding Corp. III" means Aegis Auto Funding Corp. III,
a Delaware corporation, its successors and assigns.
"Funding Date" means each date occurring no more than
once per calendar week during the Funding Period on which
Additional Receivables are sold to the Trust.
"Funding Event" shall mean, with respect to a Funding
Date, the occurrence of the events required to occur in accordance
with Section 3.08.
"Funding Period" means the period beginning on the
Closing Date and ending on the earlier to occur of (i) the Final
Funding Date or (ii) September 30, 1996.
"Initial Distribution Date" means October 21, 1996.
"Initial Receivables" means all Receivables sold to the
Trust by the Seller on the Closing Date.
"Insurance Policy" means, with respect to a Receivable,
any comprehensive, collision, fire and theft insurance policy
required to be maintained by the Obligor with respect to the
Financed Vehicle, the VSI Insurance Policy, and any credit life
and disability insurance maintained by the Obligor or Seller and
benefitting the holder of the Receivable.
"Lien" means a security interest, lien, charge, pledge,
equity or encumbrance of any kind.
"Liquidated Receivable" means any Receivable, other than
a Receivable that first became a Defaulted Receivable, liquidated
by the Servicer through sale of the Financed Vehicle or otherwise.
"Liquidation Proceeds" means the moneys collected during
the respective Collection Period on a Liquidated Receivable,
whether through foreclosure or otherwise, other than Risk Default
Insurance Proceeds, net of the sum of any amounts expended by
the Servicer for the account of the Obligor and the expenses
incurred in the liquidation.
"Lock-Box Account" means the account(s) designated as
such, established and maintained pursuant to Section 5.01 hereof,
into which account shall be deposited only those moneys collected
with respect to the Receivables as contemplated herein and moneys
collected with respect to other retail installment sales contracts
originated or purchased by Aegis Finance or its Affiliates.
"Lock-Box Account Depository" means ▇▇▇▇▇ Fargo Bank,
N.A., acting as Lock-Box Account Depository hereunder, its
successors in interest and any successors appointed pursuant to
paragraph IX of the Servicing Agreement.
"Majority Certificateholders" means Holders of Certificates
evidencing not less than 51% of the Voting Interests thereof.
"Miscellaneous Servicer Collections" means, with respect
to a Collection Period, all late charges, extension fees and
recoveries of expenses relating to liquidation, repossession and
other costs previously incurred by the Servicer.
"Monthly Servicing Certificate" means the certificate
substantially in the form of Schedule B to the Servicing
Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service or any
successors thereto.
"Net Loss" means, with respect to a Collection Period, the
sum of the Principal Balances of Receivables that became
Liquidated Receivables or Defaulted Receivables during such
Collection Period, minus Recoveries and Risk Default Insurance
Proceeds (to the extent allocable to principal) received in such
Collection Period.
"Obligor" means, with respect to a Receivable, the
purchaser or co-purchasers of the Financed Vehicle and/or any
other Person who owes payments under such Receivable.
"Officer's Certificate" means a certificate signed by the
chairman of the board, the president, any vice chairman of the
board, any vice president, any assistant vice president, any trust
officer, the treasurer, the controller or any assistant treasurer or
any assistant controller of the Seller, the Trustee, the Servicer, the
Custodian or the Backup Servicer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel
who may but need not be counsel to the Seller or Servicer, which
counsel shall be acceptable to the Trustee.
"Optional Purchase Percentage" means 5% of the Original
Pool Balance.
"Original Certificate Balance" means, as to any Certificate,
the initial certificate balance stated on the face of such Certificate.
"Original Class Certificate Balance" means, as to the Class
A Certificates, $102,575,000; as to the Class B Certificates,
$5,225,000; and as to the Class C Certificates, $2,200,000.
"Original Pool Balance" means the initial Principal Balance
of all Receivables (including Additional Receivables) as of their
respective Cutoff Dates.
"Original Pre-Funded Amount" means the amount deposited
in the Funding Account on the Closing Date.
"Pass-through Rate" means, with respect to the applicable
Class of Certificates, the Class A Rate, the Class B Rate or the
Class C Rate.
"Percentage Interest" means, with respect to any
Certificate, the percentage ownership interest of such Certificate
in the aggregate of amounts distributable hereunder to the related
Class of Certificates. With respect to any Certificate, the
Percentage Interest evidenced thereby shall equal the Original
Certificate Balance thereof divided by the aggregate Original Class
Certificate Balance of the related Class.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or
political subdivision thereof.
"Plan" shall have the meaning set forth in Section 7.03.
"Pool Balance" means, as of the day of calculation, the
aggregate Principal Balance of the Receivables less Net Losses.
"Pool Factor" means, as of any Distribution Date, a seven-
digit decimal figure equal to the Pool Balance for such Distribution
Date divided by the Original Pool Balance.
"Principal Balance" means, with respect to any Receivable
at any time, the Amount Financed minus the sum of (a) the portion
of all payments made by or on behalf of the related Obligor and
allocable to principal using the Simple Interest Method and (b) the
portion of any payment of the Purchase Amount with respect to the
Receivable allocable to principal, calculated as of the close of
business on the last day of the prior Collection Period (or, prior to
the end of the first Collection Period, calculated as of the close of
business on the day immediately prior to the Cutoff Date).
"Principal Distributable Amount" means, with respect to
any Distribution Date the sum of: (i) the portion of all Scheduled
Payments allocable to principal (including delinquent payments)
collected during the preceding Collection Period on the
Receivables, (ii) the principal portion of all prepayments in full or
in part received during the preceding Collection Period (without
duplication of amounts included in clause (i) above); (iii) the
Principal Balance of each Receivable that became a Purchased
Receivable during the preceding Collection Period (without
duplication of amounts referred to in clauses (i) and (ii) above);
(iv) the Principal Balance of each Receivable that became a
Liquidated Receivable during the preceding Collection Period
(without duplication of amounts included in clause (i), (ii) and (iii)
above), and (v) the Principal Balance of each Receivable that
became a Defaulted Receivable during the preceding Collection
Period (without duplication of amounts included in clause (i), (ii),
(iii) and (iv) above); provided, however, that in calculating the
Principal Distributable Amount the following will be excluded: all
payments and proceeds of any Purchased Receivables the Purchase
Amount of which has been included in the Principal Distributable
Amount in a prior Collection Period. Further, (i) with respect to
the Distribution Date occurring on October 21, 1996, the principal
required to be distributed to Certificateholders shall include an
amount equal to the remaining balance in the Funding Account on
the last day of the Funding Period, to the extent allocable to
principal, and (ii) with respect to the Distribution Date following
the substitution of a Receivable pursuant to Section 3.02, the
principal required to be distributed to Certificateholders shall
include the difference, if any, between the outstanding Principal
Balance of the replaced Receivable and the outstanding Principal
Balance of the substitute Receivable.
"Purchase Agreement" means Purchase Agreement dated as
of September 1, 1996 between the Seller, as purchaser, and Aegis
Finance, as seller of the Receivables.
"Purchase Amount" means the amount, as of the close of
business on the last day of a Collection Period, required to prepay
in full the respective Receivable under the terms thereof, including
the principal amount thereof and interest to the end of the
Collection Period.
"Purchased Receivable" means a Receivable purchased as
of the close of business on the last day of a Collection Period by
the Seller or by Aegis Finance on behalf of the Seller pursuant to
the Purchase Agreement.
"Rated Certificates" means each Class of Certificates that
has been rated by a Rating Agency at the request of the Seller.
"Rated Entity" shall mean a Person whose long-term
unsecured debt obligations (at the time of the transfer under
Section 7.03) are rated within the investment grade categories of
either ▇▇▇▇▇'▇, S&P, Fitch or DCR.
"Rating Agency" means each statistical credit rating agency,
or its successor, that rated any of the Certificates at the request of
the Seller at the time of the initial issuance of the Certificates. If
such agency or a successor is no longer in existence, "Rating
Agency" shall be such statistical credit rating agency, or other
comparable Person, designated by the Seller, notice of which
designation shall be given to the Trustee. As of the date of the
initial issuance of the Certificates, the Rating Agencies for the
Class A, Class B and Class C Certificates are DCR and Fitch.
"Receivable" means any retail installment sales contract and
security agreement identified on Exhibit D hereto; provided that
Exhibit D shall be deemed to be amended on each Funding Date
to add the Additional Receivables acquired by the Seller from
Aegis Finance pursuant to the Purchase Agreement and sold to the
Trust pursuant to the terms hereof on each such Funding Date.
"Receivable Review" means a review conducted by the
Review Firm to determine compliance with the requirements of the
Agreement, which review shall employ the procedures set forth in
the letter from the Review Firm attached hereto as Exhibit P.
"Receivables Cash Purchase Price" means with respect to
any Additional Receivable, an amount equal to 100% of the
Principal Balance of such Additional Receivable, a portion of
which will be deposited into the Reserve Fund as provided herein.
"Record Date" means the last day of the Collection Period
preceding a Distribution Date or termination of the Trust.
"Recoveries" means all amounts received (net of out-of-
pocket costs of collection), other than Risk Default Insurance
Proceeds, with respect to Defaulted Receivables and Liquidated
Receivables.
"Refunding Event" means the transfer of remaining funds
in the Funding Account to the Certificate Account and distribution
to the Certificateholders on a pro rata basis on October 21, 1996
of such remaining funds in the Funding Account in accordance
with Section 5.06 hereof.
"Required Deposit Rating" means a rating of an institution
which has either short-term deposits of "P-1" by Moody's, or
short-term deposits of "A-1+" by S&P, and short-term deposits of
"D-1+" by DCR, if rated by DCR; and any requirement that
deposits have the "Required Deposit Rating" shall mean that such
deposits have the foregoing required ratings first, by DCR, or
second, by Moody's or S&P.
"Reserve Fund" means the fund established and maintained
pursuant to Section 5.07 hereof outside of the Trust.
"Reserve Fund Draw" has the meaning set forth in Section
5.07(f).
"Reserve Fund Initial Deposit" means $3,100,716.09, an
amount equal to 3.0% of the Principal Balance of the Initial
Receivables as of the initial Cutoff Date plus the Funding Account
Interest Amount, which amount shall be deposited in the Reserve
Fund on the date of the initial issuance of the Certificates pursuant
to Section 5.07 hereof.
"Reserve Fund Property" has the meaning specified in
Section 5.07(c).
"Reserve Requirement" means, as of any Distribution Date,
after giving effect to distributions of principal on such date, an
amount equal to the greatest of the amounts calculated pursuant to
the following provisions (1), (2), (3), (4) and (5) that are
applicable as of such date:
(1) Eight percent (8%) of the Pool Balance;
(2) Eleven percent (11%) of the Pool Balance if, as of
the end of any Collection Period, the "60 day +
Delinquency Rate" (as hereinafter defined) is
greater than 4.75% of the Pool Balance, increasing
to eleven and one-half percent (11.50%) of the Pool
Balance if, as of the end of any Collection Period,
the 60 day + Delinquency Rate exceeds 5.75% of
the Pool Balance, and further increasing to twelve
percent (12%) of the Pool Balance if, as of the end
of any Collection Period, the 60 day +
Delinquency Rate exceeds 6.75% of the Pool
Balance, and the Reserve Requirement shall remain
at such higher applicable percentage for so long as
the Certificates are outstanding; provided, however,
the Reserve Requirement shall be reduced one time
while the Certificates are outstanding to nine and
one-half percent (9.50%) of the Pool Balance if the
60 day + Delinquency Rate drops and remains
below 4.75% of the Pool Balance for three (3)
consecutive Collection Periods after the Reserve
Requirement is first increased pursuant to this
provision (2);
(3) Thirteen percent (13%) of the Pool Balance if (i)
the rating of the claims-paying ability of the issuer
or an endorser of the Risk Default Insurance Policy
as measured by either Rating Agency (or, if neither
Rating Agency rates such claims-paying ability, by
Moody's or S&P) is below "A" (without regard to
+ or - or other gradations) or the issuer of the VSI
Insurance Policy becomes bankrupt or insolvent, or
(ii) the rating on the Class A Certificates from
either Rating Agency is below "A" (without regard
to + or - or other gradations) or is withdrawn;
(4) Thirteen percent (13%) of the Pool Balance if, at
the end of any Collection Period, the cumulative
Net Losses exceed the corresponding percentage of
the Original Pool Balance set forth in the table
below:
Cumulative Net Losses
Collection Periods Ending as a %
of Original Pool Balance
September 1996 - February 1997 4.0%
March 1997 - August 1997 7.0%
September 1997 - February 1998 10.0%
March 1998 - August 1998 13.0%
September 1998 - February 1999 14.5%
March 1999 and thereafter 16.0%
If the Reserve Requirement is increased to 13% of
the Pool Balance due to this clause (4), the Reserve
Requirement shall remain at such level until (i) a
minimum of six (6) months have elapsed and (ii) as
of the end of a Collection Period during a Cure
Period Testing Month (as hereinafter defined), the
cumulative Net Losses are below the corresponding
percentage of the Original Pool Balance set forth in
the table above. The Reserve Requirement may be
cured only one time under this provision; or
(5) the lesser of $2,200,000 and the aggregate Principal
Balance of the Receivables.
For purposes of determining the Reserve Requirement, "60
Day + Delinquency Rate" for any Distribution Date means the
Principal Balance, as of the close of the immediately preceding
Collection Period, of the Receivables (other than Liquidated and
Defaulted Receivables) as to which Obligors are more than 60 days
past due in making Scheduled Payments, divided by the Pool
Balance as of the close of such Collection Period. "Cure Period
Testing Month" means each of August 1997, February 1998,
August 1998, February 1999 and August 1999.
"Residual Interest" means the right of the Seller to all
distributions from, and assets of, the Trust, after payment in full
of the fees and expenses of the Backup Servicer, the Servicer, the
Trustee and the Custodian and payment in full of the Certificates
upon termination of this Agreement.
"Retention Amount" means the insured's deductible (initially
equal to 8% of the aggregate insured portion of the Amount
Financed of the Receivables) under the terms of the Risk Default
Policy as described therein.
"Review Firm" means Ernst & Young LLP, or its
successors and assigns.
"Risk Default Insurance Policy" or "Risk Default Policy"
means the insurance policy listed on Exhibit I issued by the Risk
Default Insurer to the Trustee for the benefit of the Trust as named
insured thereunder, including all endorsements thereto, the original
of which policy and endorsements shall be delivered to the
Custodian on or prior to the Closing Date.
"Risk Default Insurance Proceeds" means the proceeds
received by the Trustee, the Backup Servicer, the Servicer, the
insured or any other Person under the Risk Default Policy, which
proceeds shall include allocations to principal and interest as
determined by the Servicer.
"Risk Default Insurer" means The Connecticut Indemnity
Company, its successors and assigns.
"Schedule of Receivables" means the list of Receivables
annexed hereto as Exhibit D; provided that Exhibit D shall be
deemed to be amended on each Funding Date to add Additional
Receivables acquired by the Trust on each such date pursuant to
this Agreement such Exhibit shall be amended from time to time.
"Scheduled Payment" means the fixed payment required to
be made by the Obligor during the respective Collection Period
sufficient to fully amortize the Principal Balance under the Simple
Interest Method over the term of the Receivable and to provide
interest at the applicable APR, including any delinquent payment;
provided, however, that "Scheduled Payment" does not include
Miscellaneous Servicer Collections.
"Securities Act" shall have the meaning set forth in Section
7.03.
"Seller" means Aegis Auto Funding Corp., a Delaware
corporation, as the seller of the Receivables to the Trust under this
Agreement, and its successors (in the same capacity) pursuant to
Section 8.03.
"Servicer" means Aegis Finance, as servicer of the
Receivables pursuant to the Servicing Agreement or any other
Eligible Servicer acting as servicer pursuant to the Servicing
Agreement in accordance with Section 4.01, as the context may
require.
"Servicer Files" shall have the meaning set forth in Section
3.03(b).
"Servicing Agreement" means the Aegis Finance Servicing
Agreement or another servicing agreement entered into by the
Backup Servicer and the Trustee with an Eligible Servicer which
shall be substantially in the form of the Aegis Finance Servicing
Agreement or such other form as shall be approved by the
Majority Certificateholders.
"Servicing Fee" means the fee payable to the Servicer for
services rendered during the respective Collection Period,
determined pursuant to the Servicing Agreement.
"Servicing Officer" means any officer of the Servicer
involved in, or responsible for, the administration and servicing of
Receivables whose name appears on a list of servicing officers
attached to an Officer's Certificate furnished to the Trustee by the
Servicer, as such list may be amended from time to time.
"Simple Interest Method" means the method of allocating
a fixed level payment to principal and interest, pursuant to which
the portion of such payment that is allocated to interest is equal to
the product of the APR multiplied by the unpaid principal balance
multiplied by a fraction the numerator of which is the number of
days elapsed since the preceding payment was made and the
denominator of which is 365.
"Simple Interest Receivable" means any Receivable under
which the portion of a payment allocable to interest and the portion
allocable to principal is determined in accordance with the Simple
Interest Method.
"S&P" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successors
thereto.
"State" means any state of the United States of America, or
the District of Columbia.
"Substitute Receivable" means any replacement Receivable
substituted for another Receivable in accordance with Section
3.02(b).
"Total Available Distribution Amount" means, for each
Distribution Date, the sum of the Available Interest Distribution
Amount, the Available Principal Distribution Amount and the
Miscellaneous Servicer Collections.
"Transition Costs" means an amount necessary to reimburse
the successor to the Servicer, the Trustee or the Backup Servicer,
as the case may be, for reasonable costs and expenses incurred in
connection with such transition(s).
"Trust" means the Aegis Auto Receivables Trust 1996-3
created by this Agreement, the estate of which shall consist of the
Trust Property.
"Trust Property" shall have the meaning set forth in Section
2.01(c).
"Trustee" means the Person acting as Trustee of the Trust
under this Agreement, its successor in interest and any successor
trustee pursuant to Section 11.10.
"Trustee Officer" means any vice president or assistant vice
president, any assistant secretary, any trust officer or any other
officer of the Corporate Trust Department of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Trustee's Certificate" means a certificate completed and
executed by the Trustee by a Trustee Officer pursuant to Section
11.02, substantially in the form of, in the case of an assignment to
the Seller, Exhibit B.
"UCC" means the Uniform Commercial Code as in effect
from time to time in the relevant jurisdictions.
"Underwriting Guidelines" means the underwriting
guidelines of Aegis Finance with respect to each of its programs,
a copy of which is annexed to the Risk Default Insurance Policy.
"Vendor's Single Interest Physical Damage Insurance
Policy" means the insurance policy listed on Exhibit J issued by
the VSI Insurer, including all endorsements thereto.
"Voting Interests" means the portion of the voting interests
of all the Certificates that is allocated to any Certificate for
purposes of the voting provisions of this Agreement. Voting
Interests shall be allocated to the Class A, Class B and Class C
Certificates, respectively, in proportion to their Class Certificate
Balances. Voting Interests allocated to each Class of Certificates
shall be allocated among the Certificates within each such class in
proportion to their Certificate Balances. Where the Voting
Interests are relevant in determining whether the vote of the
requisite percentage of the Certificateholders necessary to effect
any consent, waiver, request or demand shall have been obtained,
the Voting Interests shall be deemed to be reduced by the amount
equal to the Voting Interests (without giving effect to this
provision) represented by the interests evidenced by any Certificate
registered in the name of the Servicer, Aegis Finance, the Seller
or any Person known to a Trustee Officer to be an Affiliate of any
such foregoing entities, unless such entity owns all affected
Certificates.
"VSI Insurance Policy" means Vendor's Single Interest
Physical Damage Insurance Policy.
"VSI Insurer" means Guaranty National Insurance
Company.
Section 1.02. Usage of Terms. With respect to all terms
in this Agreement, the singular includes the plural and the plural
the singular; words importing any gender include the other
genders; references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein
entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their
permitted successors and assigns; and the term "including" means
"including without limitation."
Section 1.03. Cutoff Date and Record Date. All
references to the Record Date prior to the first Record Date in the
life of the Trust shall be to the Closing Date.
Section 1.04. Section References. Unless otherwise
indicated, all section references shall be to Sections in this
Agreement.
ARTICLE II
CREATION OF TRUST
Upon the execution by the parties hereto, there is hereby
created the Aegis Auto Receivables Trust 1996-3. The situs and
administration of the Trust shall be in Minneapolis, Minnesota or
in such other city in which the Corporate Trust Office is located
from time to time.
Section 2.01. Conveyance and Acceptance by Trustee.
(a) In consideration of the Trustee's delivery of
the Certificates to or upon the order of the Seller in an
aggregate principal amount equal to the aggregate Principal
Balance of the Initial Receivables plus the Original Pre-
Funded Amount, the Seller does hereby irrevocably sell,
assign, and otherwise convey to the Trustee, in trust for the
benefit of the Certificateholders, without recourse (subject
to the obligations herein):
(i) all right, title and interest of the Seller in and to the
Initial Receivables identified on Exhibit D, all moneys received
thereon on and after the Cutoff Date allocable to principal, and
all moneys received thereon allocable to interest accrued from and
including the Cutoff Date;
(ii) the interest of the Seller in the
security interests in the Financed Vehicles granted
by the Obligors pursuant to the Initial Receivables;
(iii) the interest of the Seller in any Risk
Default Insurance Proceeds and any proceeds from
claims on any Insurance Policies (including the VSI
Insurance Policy) covering the Initial Receivables,
the Financed Vehicles or the Obligors from the
Cutoff Date;
(iv) all right, title and interest of the
Seller in and to the Funding Account and all
moneys and investments from time to time on
deposit therein;
(v) the right of the Seller to realize upon
any property (including the right to receive future
Liquidation Proceeds) that shall have secured an
Initial Receivable and have been repossessed by or
on behalf of the Trustee;
(vi) the interest of the Seller in any
Dealer Recourse relating to the Initial Receivables;
(vii) all right, title and interest of the
Seller in and to the Purchase Agreement; and
(viii) the proceeds of any and all of the
foregoing.
(b) Subject to the conditions set forth in Section
3.08 hereof, in consideration of the Trustee's delivery on
the related Funding Dates to or upon the order of the Seller
of all or a portion of the balance in the Funding Account in
an amount equal to the aggregate Receivables Cash
Purchase Price of the Additional Receivables to be acquired
on the Funding Date (a portion of which shall be deposited
into the Reserve Fund in accordance with Section 5.07(b)
hereof), the Seller shall on such Funding Date sell,
transfer, assign, set over and otherwise convey to the
Trustee, without recourse (subject to the obligations
herein):
(i) all right, title and interest of the Seller in and to Additional
Receivables and all moneys received thereon, on and after the
related Cutoff Date, allocable to principal, and all moneys received
thereon allocable to interest accrued from and including the related
Cutoff Date;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Additional
Receivables;
(iii) the interest of the Seller in any Risk Default Insurance
Proceeds or any proceeds from claims on any Insurance Policies
(including the VSI Insurance Policy) covering the Additional
Receivables, the Financed Vehicles or the Obligors from the
related Cutoff Date;
(iv) the right of the Seller to realize upon any property
(including the right to receive future Liquidation Proceeds) that
shall have secured an Additional Receivable and have been
repossessed by or on behalf of the Trustee;
(v) the interest of the Seller in any Dealer Recourse relating to
the Additional Receivables;
(vi) all right, title and interest of the Seller in and to the
Purchase Agreement; and
(vii) the proceeds of any and all of the foregoing.
(c) It is the intention of the Seller and the
Trustee that the transfer and assignment of the Seller's
right, title and interest in and to the assets identified in
clauses (i) through (vii) of Section 2.01(a) and clauses (i)
through (vii) of Section 2.01(b) (collectively, the "Trust
Property") shall constitute an absolute sale by the Seller to
the Trustee in trust for the benefit of the Certificateholders.
In the event a court of competent jurisdiction were to
recharacterize the transfer of the Trust Property as a
secured borrowing rather than a sale, contrary to the intent
of the Seller and the Trustee, the Seller does hereby grant,
assign and convey to the Trustee and the Trust, as security
for all amounts payable to the Certificateholders, a security
in and lien upon all of its right, title and interest in and to
the Trust Property, including all amounts deposited to the
Lock-Box Account, the Collection Account, the Certificate
Account and the Funding Account, said security interest to
be effective from the date of execution of this Agreement.
(d) The Trustee does hereby accept all
consideration conveyed by the Seller pursuant to Section
2.01(a) and 2.01(b), and declares that the Trustee shall
hold such consideration upon the trusts herein set forth for
the benefit of all present and future Certificateholders,
subject to the terms and provisions of this Agreement.
The Trustee and the Certificateholders acknowledge
and agree that the Seller is the holder of the Residual
Interest and, subject to the terms and provisions of this
Agreement, shall be entitled to receive all distributions of
Excess Receipts.
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of Seller.
(a) The Seller makes the following
representations and warranties as to the Receivables on
which the Trustee relies in accepting the Receivables in
trust on the Closing Date and each Funding Date and
executing and authenticating the Certificates on the Closing
Date. Such representations and warranties speak as of the
Closing Date with respect to the Initial Receivables and as
of the related Funding Date with respect to Additional
Receivables to be acquired on such date, but shall survive
the sale, transfer and assignment of the Receivables to the
Trustee.
(i) Characteristics of Receivables. Each
Receivable (A) has been originated in the United
States of America by Aegis Finance or a Dealer for
the retail sale of a Financed Vehicle in the ordinary
course of Aegis Finance's or such Dealer's
business, has been fully and properly executed by
the parties thereto, and, if originated by a Dealer,
has been purchased by Aegis Finance from such
Dealer or has been financed for such Dealer under
an existing agreement with Aegis Finance, (B) has
created a valid, subsisting and enforceable first
priority security interest in favor of Aegis Finance
or the Dealer in the Financed Vehicle, which
security interest, (1) if in favor of the Dealer, has
been assigned by the Dealer to Aegis Finance, (2)
in either case has been duly assigned by Aegis
Finance to the Seller, and (3) has been assigned by
the Seller to the Trustee, (C) is covered by the VSI
Insurance Policy and the Risk Default Insurance
Policy, (D) contains customary and enforceable
provisions such that the rights and remedies of the
holder thereof are adequate for realization against
the collateral of the benefits of the security and (E)
provides for level monthly payments (provided that
the payment in the first or last month in the life of
the Receivable may be different from the level
payment) that fully amortize the Amount Financed
over an original term of no greater than 60 months
and yield interest at the Annual Percentage Rate.
(ii) Schedule of Receivables. The
information set forth in Exhibits D, F-1 and F-2
hereto is true, complete and correct in all material
respects as of the opening of business on the
applicable Cutoff Dates, as the case may be, and no
selection procedures adverse to the
Certificateholders have been utilized in selecting the
Receivables.
(iii) Compliance With Law. Each
Receivable and the sale of each Financed Vehicle
(A) complied at the time it was originated or made
and at the Closing Date or the applicable Funding
Date, as the case may be, complies in all material
respects with all requirements of applicable federal,
State and local laws and regulations thereunder,
including, without limitation, usury laws, the
Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇
Warranty Act, the Federal Reserve Board's
Regulations B and Z, State adaptations of the
National Consumer Act and of the Uniform
Consumer Credit Code, and other consumer credit
laws and equal credit opportunity and disclosure
laws and (B) does not contravene any applicable
contracts to which Aegis Finance is a party and no
party to such contract is in violation of any
applicable law, rule or regulation which is material
to the Receivable or the sale of the Financed
Vehicle.
(iv) Binding Obligation. Each Receivable
represents the genuine, legal, valid and binding
payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with
its terms.
(v) No Government Obligor. None of
the Receivables is due from the United States of
America or any State or local government or from
any agency, department or instrumentality of the
United States of America or any State or local
government.
(vi) Security Interest in Financed Vehicle.
Immediately prior to the assignment and transfer
thereof, each Receivable is secured by a validly
perfected first priority security interest in the related
Financed Vehicle in favor of the Seller as secured
party or all necessary and appropriate actions have
been commenced that would result in the valid
perfection of a first priority security interest in the
Financed Vehicle in favor of the Seller as the
secured party. The Seller has caused each
certificate of title (or copy of an application for
title), or such other document delivered by the state
title registration agency evidencing the security
interest in each Financed Vehicle, to be delivered to
the Custodian pursuant to Section 3.03 hereof,
together with a power of attorney, duly executed by
Aegis Finance in favor of the Trustee, which
powers of attorney are sufficient to change the lien
holder on the certificate of title with respect to a
Financed Vehicle.
(vii) Receivables in Force. No Receivable
has been satisfied, subordinated or rescinded, nor
has any Financed Vehicle been released from the
lien granted by the related Receivable in whole or
in part.
(viii) No Waiver. No provision of a
Receivable has been waived, impaired, altered or
modified in any respect except in accordance with
the Servicing Agreement, the substance of which is
reflected in the Schedule of Receivables contained
in the Purchase Agreement as it relates to the
information included thereon.
(ix) No Amendments. No Receivable has
been amended such that either the original
Scheduled Payment has been decreased or the
number of originally scheduled due dates has been
increased except as permitted under the terms of the
Risk Default Policy covering such Receivable.
(x) No Defenses. No right of rescission,
setoff, recoupment, counterclaim or defense has
been asserted or threatened with respect to any
Receivable.
(xi) No Liens. No Liens or claims have
been filed for work, labor or materials relating to a
Financed Vehicle that are Liens prior to, or equal
or coordinate with, the security interest in the
Financed Vehicle granted by the Obligor pursuant
to the Receivable.
(xii) No Default. Except for payment
delinquencies continuing for a period of not more
than thirty (30) days as of the applicable Cutoff
Date for any Receivable, no default, breach,
violation or event permitting acceleration under the
terms of any Receivable has occurred; and no
continuing condition that with notice or the lapse of
time would constitute a default, breach, violation or
event permitting acceleration under the terms of any
such Receivable has arisen; and the Seller has not
waived any of the foregoing. As of the date hereof
and as of each Funding Date, the Seller has no
knowledge of any facts regarding any particular
Receivable indicating that such Receivable would
not be paid in full.
(xiii) Insurance. Each Receivable is
covered, as of the Closing Date or Funding Date
when acquired, as the case may be, and throughout
the shorter of the term of the Trust or the term of
the Receivable, under the VSI Insurance Policy and
the Risk Default Insurance Policy, and each such
insurance policy is valid and remains in full force
and effect. Aegis Finance, in accordance with its
customary procedures, has required that each
Obligor obtain, and has determined that each
Obligor has obtained, physical damage insurance
covering the Financed Vehicle as of the date of
execution of the Receivable insuring repair or
replacement of such Financed Vehicle subject to a
deductibility not in excess of $500.
(xiv) Title. It is the intention of the Seller
that the transfer and assignment of the Receivables
from the Seller to the Trust herein contemplated be
treated as an absolute sale for financial accounting
purposes, and that the beneficial interest in and title
to the Receivables not be part of the property of the
Seller for any purpose under state or federal law.
No Receivable has been sold, transferred, assigned
or pledged by the Seller to any Person other than
the Trustee. Immediately prior to the transfer and
assignment herein contemplated, the Seller had good
and marketable title to each Receivable free and
clear of all Liens and rights of others and,
immediately upon the transfer thereof, the Trustee
for the benefit of the Certificateholders will have
good and marketable title to each Receivable, free
and clear of all Liens and rights of others; and the
transfer has been validly perfected under the UCC.
(xv) Lawful Assignment. No Receivable
has been originated in, or is subject to the laws of,
any jurisdiction under which the pledge, transfer
and assignment of such Receivable under this
Agreement or pursuant to transfers of the
Certificates is or shall be unlawful, void or
voidable.
(xvi) All Filings Made. All filings
(including, without limitation, UCC filings)
necessary in any jurisdiction to give the Trustee a
first perfected ownership interest in the Receivables
have been made.
(xvii) One Original. There is only one
original executed copy of each Receivable.
(xviii) Maturity of Receivables. Each
Receivable had an original term to maturity of not
more than 60 months; the weighted average original
term to maturity of the Initial Receivables was
54.22 months as of the Cutoff Date while the
weighted average remaining term to maturity as of
the Cutoff Date for such Initial Receivables was
53.58 months; the remaining term to maturity of
each Receivable was 60 months or less as of the
respective Cutoff Date; the addition of the
Additional Receivables on each Funding Date will
not extend the weighted average remaining term to
maturity of all Receivables sold hereunder by more
than 1 month as of the applicable Cutoff Dates.
(xix) Scheduled Payments. Each Initial
Receivable has a next scheduled payment due date
on or prior to November 20, 1996; no Receivables
had a payment that was more than 30 days overdue
as of the applicable Cutoff Date; and each
Receivable has a final scheduled payment due no
later than the Final Scheduled Distribution Date.
(xx) Monthly Payments. Each Receivable
provides for level monthly payments (provided that
the payment in the first or last month in the life of
the Receivable may be minimally different from
such level payment) which fully amortize the
amount financed over the original term; provided,
however, that the Risk Default Policy provides that
loan extensions will be allowed, subject to no more
than one extension during each twelve (12) months
in the Receivable's term.
(xxi) Outstanding Principal Balance;
Annual Percentage Rate. Each Initial Receivable
had an outstanding Principal Balance as of the
applicable Cutoff Date of at least $1,121.37; and no
Initial Receivable has an outstanding Principal
Balance in excess of $34,659.46. As of their
Cutoff Date, the weighted average APR of the
Initial Receivables was 20.23% per annum. The
addition of the Additional Receivables on each
Funding Date will not decrease the weighted
average APR of all Receivables sold hereunder by
more than 10 basis points.
(xxii) Financing. Each Receivable
represents a Simple Interest Receivable.
(xxiii) Bankruptcy Proceeding. No
Receivable as of the respective Cutoff Date is noted
in Aegis Finance's or the Seller's records as a
dischargeable debt under a bankruptcy proceeding.
(xxiv) Chattel Paper, Valid and Binding.
Each Receivable constitutes "chattel paper" under
the UCC, and is the legal, valid and binding
obligation of the Obligor thereunder in accordance
with the terms thereof.
(xxv) States of Origination. At the time of
origination, each Receivable was originated in one
of the following states, which are the only states in
which the Receivables were originated: Alabama,
Arizona, California, Colorado, Connecticut,
Delaware, Florida, Georgia, Illinois, Indiana,
Kansas, Kentucky, Louisiana, Maryland,
Mississippi, Missouri, Nevada, New Jersey, New
Mexico, New York, North Carolina, Ohio,
Pennsylvania, Rhode Island, South Carolina,
Tennessee, Texas, Virginia and West Virginia.
After the addition of all Additional Receivables to
the Trust, not more than 25% of the Receivables
will have been originated in any one state.
(xxvi) Age of Financed Vehicles.
Approximately 6.15% of the Initial Receivables
relate to new Financed Vehicles and approximately
93.85% of the Initial Receivables relate to used
Financed Vehicles.
(xxvii) No Future Advances. The full
principal amount of each Receivable has been
advanced to each Obligor or advanced in accordance
with the directions of each such Obligor, and there
is no requirement for future advances thereunder.
The Obligor with respect to the Receivable does not
have any options under such Receivable to borrow
from any person additional funds secured by the
Financed Vehicle. Each Receivable as of the
Closing Date and each related Funding Date is
secured by the related Financed Vehicle.
(xxviii) Underwriting Guidelines. Each
Receivable has been originated in accordance with
the applicable Underwriting Guidelines of Aegis
Finance in effect at the time of origination and in
accordance with underwriting guidelines acceptable
to the Risk Default Insurer. Such guidelines include
but are not limited to the following:
(A) the purchase of the Financed
Vehicle by the Obligor, at the time of
funding of the Receivable, was affordable to
the Obligor based upon Aegis Finance's
existing Underwriting Guidelines with
respect to discretionary income; and
(B) at the time of funding of the
Receivable, the Financed Vehicle was
purchased from, and the Receivable
originated by, a Dealer located in one of the
states specified in paragraph (xxv) above.
(xxix) Financed Vehicle in Good Repair.
To the best of the Seller's knowledge, each
Financed Vehicle is in good repair and working
order.
(xxx) Principal Balance. No Receivable
has a Principal Balance which includes capitalized
interest, physical damage insurance or late charges.
(xxxi) Servicing. At the applicable Cutoff
Date, each Receivable was being serviced by the
Servicer.
(xxxii) Eligible Loan. Each Receivable
constitutes an "Instrument" and each Financed
Vehicle constitutes "Eligible Collateral" as defined
in and for purposes of the Risk Default Insurance
Policy. Neither the insured under the Risk Default
Insurance Policy nor any Person acting on behalf of
such insured has concealed or misrepresented any
material facts or circumstances regarding any matter
that would serve as a basis for the Risk Default
Insurer to void the Risk Default Insurance Policy.
(xxxiii) Original Principal Amount. The
original principal amount of each Receivable (A)
originated under the original "Zero Down" and the
"Reduced Income" programs, was not more than (1)
in the case of new Financed Vehicles, the lower of
(x) 105% of the manufacturer's suggested retail
price plus rebatable premiums on cancelable items
and (y) 120% of the manufacturer's suggested retail
price or (2) in the case of used Financed Vehicles,
the lower of (x) 105% of the retail value of the
Financed Vehicle at the time of origination of the
Receivable as set forth in the ▇▇▇▇▇▇ "Blue Book"
for the appropriate region plus rebatable premiums
on cancelable items and (y) 120% of such ▇▇▇▇▇▇
"Blue Book" retail value; (B) originated under the
"First Time Buyer" program, was not more than (1)
in the case of new Financed Vehicles, 95% of the
manufacturer's suggested retail price plus rebatable
premiums on cancelable items of up to 15% of the
manufacturer's suggested retail price or (2) in the
case of used Financed Vehicles, 95% of the retail
value of the Financed Vehicle at the time of
origination of the Receivable as set forth in the
▇▇▇▇▇▇ "Blue Book" for the appropriate region plus
rebatable premiums on cancelable items of up 15%
of the manufacturer's suggested retail price and (C)
originated under the "Military Program" was not
more than 105% of the manufacturer's suggested
retail price or, in the case of used Financed
Vehicles, 105% of the ▇▇▇▇▇▇ "Blue Book" retail
value. Calculations made with respect to the
percentages referenced above are rounded to the
nearest whole percentage point. All of the
Additional Receivables will be originated in
accordance with the applicable Underwriting
Guidelines.
(xxxiv) No Proceedings. There are no
proceedings or investigations pending or, to the best
knowledge of the Seller, threatened before any
court, regulatory body, administrative agency or
other governmental instrumentality having
jurisdiction over the Seller or its respective
properties: (A) asserting the invalidity of any of the
Receivables; (B) seeking to prevent the enforcement
of any of the Receivables; or (C) seeking any
determination or ruling that might materially and
adversely affect the payment on or enforceability of
any Receivable.
(xxxv) Licensing. With respect to each
Receivable originated in the State of Pennsylvania,
the Trust, the Seller, Funding Corp. III, Aegis
Finance and each prior holder of any such
Receivable were each properly licensed under
applicable Pennsylvania laws and regulations during
the respective times the Trust, the Seller, Aegis
Finance and each prior holder of any such
Receivable held such Receivable, except where the
failure to be so licensed would not have a material
adverse effect on the ability of the Trust to collect
principal or interest payments on such Receivable or
to realize upon the Financed Vehicle underlying any
such Receivable in accordance with the terms
thereof.
(xxxvi) Additional Receivables. Each
Additional Receivable shall have been identified and
approved by Aegis Finance on or prior to the
Closing Date, as evidenced by Aegis Finance's
dated notation of approval on the loan application
(or other writing).
(b) The Seller makes the following additional
representations, warranties and covenants on which the
Trustee relies in accepting the Receivables in trust on the
Closing Date and each Funding Date and executing and
authenticating the Certificates on the Closing Date, which
representations, warranties and covenants shall survive the
Closing Date and each Funding Date.
(i) Location of Servicer Files. The Servicer Files are kept at
the location or locations listed in Exhibit E hereto, with the
exception of (A) the original certificates of title or other documents
under applicable state laws evidencing the security interest of
Aegis Finance in the Financed Vehicles, and (B) the original
Receivables, which documents shall be kept at an office of the
Custodian.
(ii) Evidence of Security Interest. On the
Closing Date (in the case of the Initial Receivables)
and the applicable Funding Date (in the case of each
Additional Receivable), the Seller shall deliver or
cause to be delivered to the Custodian (A) an
original certificate of title or (B) if the applicable
state title registration agency does not deliver
certificates of title to lienholders, such other
document under applicable state laws evidencing the
security interest of Aegis Finance in the Financed
Vehicle, or (C) a guarantee of title or a copy of an
application for title if no certificate of title or other
evidence of the security interest in the Financed
Vehicle has yet been issued, for each Financed
Vehicle relating to each Receivable sold,
transferred, assigned and conveyed hereunder;
provided, however, that any original certificate of
title or other document under applicable law
evidencing the security interest of Aegis Finance in
the Financed Vehicle not so delivered on the
Closing Date or Funding Date, as the case may be,
due to the fact that such certificate of title or other
document has not yet been issued by a state title
registration agency and delivered to the Seller as of
such date, shall be delivered by the Seller to the
Custodian within one hundred twenty (120) days
after the Closing Date or the applicable Funding
Date, as the case may be, or such later date
permitted by the Rating Agencies in accordance
with Section 3.03(a); provided, further, that failure
to so deliver any original certificate of title or other
document evidencing the security interest of Aegis
Finance in the Financed Vehicle to the Trustee shall
be deemed to be a breach by the Seller of its
representations and warranties contained in this
Section 3.01, and such occurrence shall constitute a
breach pursuant to Section 3.02.
(c) Review of Receivables. The Seller will (i)
engage the Review Firm to conduct a Receivable Review
with respect to the Initial Receivables and the Additional
Receivables; and (ii) instruct the Review Firm to provide
written notice to the Trustee, the Seller, Aegis Finance, the
Rating Agencies and each Certificateholder of the results of
each Receivable Review. All services, duties and
responsibilities of the Review Firm shall be performed and
carried out by the Review Firm as an independent
contractor of the Seller, and none of the provisions of any
agreement between the Seller and the Review Firm shall be
deemed to make, authorize or appoint the Review Firm as
agent or representative of the Seller, the Trustee, Aegis
Finance or the Rating Agencies or their respective
successors and assigns.
Section 3.02. Repurchase or Substitution Upon
Breach.
(a) The Seller, the Backup Servicer or the
Trustee, as the case may be, shall inform the other parties
to this Agreement and each Certificateholder promptly, in
writing, upon its discovery of (i) any breach of the Seller's
representations and warranties made pursuant to Section
3.01(a), or of Aegis Finance's representations and
warranties made pursuant to Section 3.01(b) of the
Purchase Agreement, or (ii) the failure of the Seller to
deliver original certificates of title or other documents
evidencing the security interest of Aegis Finance in the
Financed Vehicle pursuant to Section 3.01(b) and 3.03.
Neither the Backup Servicer nor the Trustee has any duty
to investigate or determine the existence of any breach or
non-delivery except as specified herein. Unless (i) the
breach shall have been cured by the thirtieth day following
the discovery thereof by the Trustee or receipt by the
Trustee of notice from the Seller, the Servicer or the
Backup Servicer of such breach, or (ii) the non-delivery
shall have been cured by the seventh Business Day
following receipt by an officer of the Seller of notice from
the Trustee by certified mail, the Seller shall repurchase
each Receivable (x) to which such breach relates by the
fifth Business Day following such 30 day cure period or (y)
relating to the non-delivery by the fifth Business Day
following such seven day cure period. Concurrently
therewith, the Seller shall cause Aegis Finance to
repurchase such Receivable pursuant to the Purchase
Agreement for the Purchase Amount. In consideration of
the purchase of the Receivable, the Seller shall remit or
cause Aegis Finance to remit the Purchase Amount to the
Trustee for application in the manner specified in Section
5.05. For purposes of this Section 3.02, the Purchase
Amount of a Receivable which is not consistent with the
warranty pursuant to Section 3.01(a)(i)(E) shall include
such additional amount as shall be necessary to provide the
full amount of principal and interest as contemplated
therein.
(b) The foregoing notwithstanding, the Seller
shall also have the option of substituting, within the five
Business Day period following the applicable cure period,
one or more replacement Receivables conforming to the
requirements hereof (a "Substitute Receivable") for any
breach or failing Receivable instead of repurchasing such
Receivable, provided any such substitution occurs within
ninety (90) days of the Closing Date. It shall be a
condition of any such substitution that (i) the outstanding
Principal Balance of the Substitute Receivables as of the
date of substitution shall be less than or equal to the
outstanding Principal Balance of the replaced Receivable as
of the date of substitution; provided that an amount equal
to the difference, if any, between the outstanding Principal
Balance of the replaced Receivable and the outstanding
Principal Balance of the Substitute Receivable shall be
deposited into the Collection Account and shall be applied
to repay the outstanding Principal Balance of the
Certificates on the next Distribution Date; (ii) the
remaining term to maturity of the Substitute Receivable
shall not be greater than that of the replaced Receivable;
(iii) the Cutoff Date with respect to the Substitute
Receivable shall be deemed to be the first day of the month
in which the substitution occurs; (iv) the Substitute
Receivable otherwise shall satisfy the conditions of Section
3.01(a) and (b) hereof (and the Seller shall be deemed to
make all representations and warranties contained in
Sections 3.01(a) and (b) hereof with respect to the
Substitute Receivable as of the date of substitution); (v) the
Seller shall have delivered to the Purchaser and the Trustee
all of the documents specified in Section 3.03(a) or 3.08(b)
hereof with respect to the Substitute Receivable on or
before the date of substitution.
(c) The sole remedy of the Trustee, the Trust or
the Certificateholders with respect to a breach of
representations and warranties of the Seller pursuant to
Section 3.01(a), or a breach of representations and
warranties of Aegis Finance pursuant to Section 3.01(b) of
the Purchase Agreement, or non-delivery of certificates of
title pursuant to Section 3.01(b) and 3.03, shall be to
require the Seller to repurchase or substitute for the
Receivables pursuant to this Section 3.02 and to enforce
Aegis Finance's obligation to repurchase such Receivables
pursuant to the Purchase Agreement.
Section 3.03. Custody of Documents.
(a) To assure uniform quality in servicing the
Receivables, to reduce administrative costs and to perfect
the security interest conveyed by the Seller to the Trustee
and the Trust pursuant to this Agreement in the Trust
Property, the Trustee, upon the execution and delivery of
this Agreement, is hereby irrevocably appointed as
Custodian of the following documents or instruments,
which are hereby delivered to the Custodian with respect to
each Initial Receivable and shall be delivered to the
Custodian with respect to each Additional Receivable on
the applicable Funding Date:
(i) The original of the Receivable and
any amendments thereto;
(ii) The original certificate of title or, if
the applicable state title registration agency does not
issue certificates of title to lienholders, such other
document under applicable state laws evidencing the
security interest of Aegis Finance in the Financed
Vehicle, or a guarantee of title or a copy of an
application for title if a certificate of title or other
document evidencing the security interest in the
Financed Vehicle has not yet been issued;
(iii) The original Risk Default Insurance
Policy and a copy of the VSI Insurance Policy
(including all endorsements thereto), including
endorsements confirming insurance thereunder (as
reflected on master lists of insured Receivables
annexed to such endorsements) regarding each
Receivable covered thereby and, with respect to the
VSI Insurance Policy, an endorsement naming the
Trustee as an additional insured thereunder;
(iv) Such other documents as may be in
existence evidencing the security interest of Aegis
Finance in the Financed Vehicle; provided,
however, that the Trustee has no obligation to
determine the existence or necessity for such other
documents.
The following documents shall be delivered to the
Custodian within 30 days of the Closing Date:
(v) File-stamped copies of the UCC-1
financing statements filed pursuant to this
Agreement.
Items (a)(i), (ii), (iii) and (iv) shall be referred to
collectively as the "Custodian Files."
The Custodian shall review the Custodian Files (A)
within 30 days after the end of the Funding Period to verify
that all guarantees of title and all applications for title have
been replaced by either an original certificate of title or
other documents delivered by a state title registration
agency evidencing the security interest of Aegis Finance in
the Financed Vehicle, and (B) within 30 days after the
Closing Date and each Funding Date, whichever is
applicable with respect to each Receivable, to verify that an
original installment sale contract is present for each
Receivable and that each Receivable is covered by an
endorsement to the Risk Default Policy confirming
insurance thereunder. The Custodian shall immediately
deliver written notice by certified mail to the Seller and
Aegis Finance if any such document is missing or has not
been delivered to the Custodian. With respect to
Receivables for which the original certificates of title or
other documents evidencing the security interest of Aegis
Finance in the Financed Vehicle have not been delivered
within 30 days after the end of the Funding Period, the
Custodian shall review the related Custodian Files every
thirty days thereafter to determine whether or not such
documents have been delivered, and shall promptly notify
the Seller, on a monthly basis, if any such documents have
not been delivered as of the date of such notice. The
Custodian shall deliver written notice to each Rating
Agency and the Certificateholders if any original certificate
of title or other document evidencing the security interest
of Aegis Finance in the Finance Vehicle has not been
delivered to the Custodian within 120 days after the end of
the Funding Period. Such notice shall confirm whether or
not a guaranty of title or an application for title has been
delivered to the Custodian with respect to the related
Receivable.
With respect to Receivables for which the original
retail installment sale contract has not been delivered to the
Custodian in accordance with this Section 3.03(a), the
Seller shall cause Aegis Finance to deliver the missing
documents within seven (7) Business Days of receipt of
such notice or repurchase such Receivables pursuant to
Section 3.02 hereof. With respect to Receivables for which
original certificates of title or other documents evidencing
the security interest of Aegis Finance in the Financed
Vehicle have not been delivered to the Custodian within
120 days of the end of the Funding Period, the Seller shall
cause Aegis Finance to deliver such within such period of
time as determined by the Rating Agencies (after receipt of
notice as described in the preceding paragraph) or
repurchase the Receivables pursuant to Section 3.02 hereof.
Other than the reviews set forth in this paragraph, the
Custodian shall have no duty or obligation to review any of
the Custodian Files.
(b) The Seller shall deliver to the Servicer for
custody pursuant to the Servicing Agreement the documents
and instruments described in Paragraph III.B.3. of the
Servicing Agreement (collectively, the "Servicer Files").
(c) The Custodian agrees to maintain the
Custodian Files at the offices of the Custodian as shall
from time to time be identified to the Trustee by written
notice. Subject to the foregoing, the Trustee may
temporarily move individual Custodian Files or any portion
thereof without notice as necessary to conduct collection
and other servicing activities in accordance with its
customary practices and procedures.
The Custodian shall have and perform the following
powers and duties:
(i) hold the Custodian Files for the
benefit of all present and future Certificateholders,
maintain accurate records pertaining to each
Receivable to enable it to comply with the terms
and conditions of this Agreement and maintain a
current inventory thereof;
(ii) carry out such policies and
procedures in accordance with its customary actions
with respect to the handling and custody of the
Custodian Files so that the integrity and physical
possession of the Custodian Files will be
maintained; and
(iii) promptly release the original
certificate of title to the Servicer upon receipt of a
written request for release of documents certified by
an officer of the Servicer, substantially in the form
of Schedule C to the Servicing Agreement, with
respect to the matters therein.
Section 3.04. Duties of Custodian.
(a) Safekeeping. The Trustee, as Custodian,
shall hold the original Receivables and original certificates
of title at the Corporate Trust Office, for the use and
benefit of all present and future Certificateholders. In
performing its duties the Custodian will comply with all
applicable state and federal laws and will exercise that
degree of skill and care consistent with the same degree of
skill and care that the Custodian exercises with respect to
similar motor vehicle loans held by the Custodian and that
is consistent with prudent industry standards, and will
apply in performing such duties and obligations, those
standards, policies and procedures consistent with the same
standards, policies and procedures the Custodian applies
with respect to similar motor vehicle loans or motor vehicle
retail installment sale contracts which the Custodian serves
as custodian or in a similar capacity.
(b) Maintenance of and Access to Records.
Subject to Section 3.03(c), the Custodian shall maintain the
Custodian Files at the Corporate Trust Office or at such
other office as shall be specified to the Trustee by written
notice not later than 90 days after any change in location.
The Custodian shall make available to the Servicer and the
Certificateholders or their duly authorized representatives,
attorneys or auditors a list of locations of the Custodian
Files, and the related accounts, records and computer
systems maintained by Custodian at such times as the
Servicer or the Majority Certificateholders shall instruct.
(c) Release of Documents. In addition to
releasing certificates of title pursuant to Section 3.03(c)(iii)
upon receipt of written instructions from the Servicer in the
form of Schedule C to the Servicing Agreement, the
Custodian shall release any Custodian File to the Servicer,
the Servicer's agent or the Servicer's designee, as the case
may be, at such place or places as the Servicer may
designate, as soon as practicable.
Section 3.05. Instructions; Authority to Act. The
Custodian shall be deemed to have received proper instructions
with respect to the Custodian Files upon its receipt of written
instructions from the Servicer in the form of Schedule C to the
Servicing Agreement.
Section 3.06. Custodian Fees; Indemnification.
(a) In consideration for services rendered as
Custodian, the Custodian shall be paid the Custodian fees
specified in Exhibit H.
(b) The Seller shall indemnify the Custodian for
any and all liabilities, obligations, losses, compensatory
damages, payments, costs or expenses of any kind
whatsoever, including reasonable fees and expenses of
counsel, that may be imposed on, incurred or asserted
against the Custodian as the result of any improper act or
omission by the Seller or alleged improper act or omission
by the Seller in any way relating to the maintenance and
custody by the Custodian of the Custodian Files; provided,
however, that the Seller shall not be liable for any portion
of any such amount resulting from the willful misfeasance,
bad faith or negligence of the Custodian.
Section 3.07. Effective Period and Termination. The
Trustee's appointment as Custodian shall become effective as of
the Closing Date and shall continue in full force and effect until
the Trustee resigns or is removed pursuant to Section 11.09. As
soon as practicable after any termination of such appointment, the
Custodian shall deliver the original documents identified in Section
3.03 to the successor Custodian at such place or places as the
successor Custodian may reasonably designate.
Section 3.08. Funding Events.
(a) A funding event (each a "Funding Event")
shall occur upon a Funding Date and in accordance with
the requirements of this Section 3.08.
(b) During the Funding Period, the Seller shall,
on Funding Dates, acquire Additional Receivables at the
Receivables Cash Purchase Price from Aegis Finance
pursuant to the Purchase Agreement with moneys deposited
in the Funding Account on the Closing Date; provided,
however, that the minimum amount of Additional
Receivables acquired on any Funding Date other than the
Final Funding Date shall be $500,000.
The Seller shall transfer to the Trustee the
Additional Receivables and the other property and rights
related thereto described in Section 2.01(b) only upon
satisfaction of each of the following conditions on or prior
to the related Funding Date:
(i) On or before the related Cutoff Date
immediately preceding any Funding Date for the
Additional Receivables, the Seller will review,
package and forward to the Trustee for receipt by
not less than two Business Days prior to the
Funding Date (each, a "Delivery Date"), the
following documents related to such Additional
Receivables:
(A) Original retail installment
sales contracts evidencing
such Receivables and any
amendments thereto;
(B) Original certificates of title,
or copies of dealer blanket
guarantees of title, or
applications for title to the
related Financed Vehicles;
(C) An endorsement to the Risk
Default Insurance Policy
confirming insurance
regarding each Receivable to
be purchased on such
Funding Date (as specified on
a master list of Receivables
annexed to such
endorsement);
(D) A list of Receivables being
purchased on such Funding
Date; and
(E) A notice that the Funding
Date will occur on the Friday
immediately following the
Delivery Date (or such other
day as specified in such
notice).
(ii) By the Delivery Date, the Seller shall
deliver, or cause to be delivered, to the Trustee
(with a copy to Seller's counsel), fully executed
documents as follows:
(A) Assignment (in the form of
Exhibit A to the Purchase
Agreement) with Schedule A
attached listing all
Receivables to be sold on
such Funding Date;
(B) Assignment (in the form of
Exhibit P hereto) with
Schedule A attached listing
all Receivables to be sold on
such Funding Date;
(C) Notice of Funding (in the
form of Exhibit N hereto);
(D) Officer's Certificate (in the
form of Exhibit O hereto)
with a copy, via telecopy, to
the Rating Agency and the
Trustee;
(E) Power of Attorney by the
Seller in favor of the Trust
reflecting the Additional
Receivables; and
(F) A release and applicable
UCC-3 Termination
Statement executed by each
warehouse lender terminating
such person's prior security
interests in such Additional
Receivables granted by Aegis
Finance.
(iii) On the Delivery Date, the Trustee
will acknowledge receipt of a written certification
of the Seller of the presence of the documents listed
in Sections 3.08(b)(i) and (ii) above by sending
notice, via telecopy, to Seller and Seller's counsel.
The Trustee shall not be responsible for the
accuracy of such documents. Only those
Receivables for which the documents listed in
Sections 3.08(b)(i) and (ii) are delivered to the
Trustee on the Delivery Date will be included in the
Funding Event. The Trustee will also stamp the
Receivables to indicate their sale to the Seller and
their subsequent transfer and assignment to the
Trust.
(iv) Upon satisfaction of the above
requirements with respect to events to occur on or
before the Funding Date, the Trustee will on the
Funding Date withdraw funds from the Funding
Account to (A) make the deposits required by
Section 5.01(c) into the Reserve Fund and (B) pay
to the Seller or its designee with respect to
Additional Receivables acquired on such Funding
Date, in cash by federal wire transfer funds, an
amount equal to the balance of the Receivables
Cash Purchase Price (net of the deposit to the
Reserve Fund), all pursuant to the written directions
provided to the Trustee in the Notice of Funding.
(v) By the Funding Date, the Seller shall
deliver or cause to be delivered to the Rating
Agency and the Trustee, a Receivables
Characteristics report substantially in the form of
Exhibit F-2 hereto with respect to all Receivables
acquired on and prior to such Funding Date.
(vi) The Trustee shall review the
documents delivered to it in connection with any
Funding Event within 5 Business Days after the
Funding Date to verify the presence of the
documents listed in Sections 3.08(b)(i) and
3.08(b)(ii) for each Additional Receivable. The
Trustee shall immediately deliver written notice by
certified mail to the Seller, Aegis Finance and each
Certificateholder, if any of such documents is
missing. The Seller shall cause Aegis Finance to
deliver to the Trustee the missing items within 3
Business Days of receipt of such notice.
(c) If the Seller does not provide on or prior to
September 25, 1996 written direction to the Trustee of its
intent to acquire Additional Receivables pursuant to this
Section 3.08 on or prior to September 30, 1996, then the
funds on deposit in the Funding Account after September
30, 1996 (excluding earnings on investments or
reinvestments thereof) shall be used for the purpose of
partially prepaying the Certificates in accordance with
Section 5.06(d) hereof. The Trustee shall provide notice
to the Certificateholders of any such partial prepayment,
which prepayment shall be made on October 21, 1996.
(d) The Seller shall take any action required to
maintain the first perfected ownership interest of the Trust
in the Trust Property and the first perfected security
interest of the Trustee in the Reserve Fund Property.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Servicing Duties.
(a) On or before the Closing Date, the Backup
Servicer and the Trustee will enter into the Aegis Finance
Servicing Agreement with Aegis Finance pursuant to which
Aegis Finance shall act as Servicer with respect to the
Receivables. Any Servicer shall be, and shall remain, for
so long as it is acting as Servicer, an Eligible Servicer.
The Backup Servicer shall review each Monthly Servicing
Certificate required to be provided by the Servicer pursuant
to paragraph III.B.6 of the Servicing Agreement and shall
notify the Trustee, each Rating Agency and each
Certificateholder of any discrepancy in such Monthly
Servicing Certificate which cannot be corrected in
accordance with paragraph III.B.6 of the Servicing
Agreement.
(b) In the event of termination of the rights and
obligations of the Servicer under the Servicing Agreement,
the Backup Servicer shall, in accordance with paragraph VI
of the Servicing Agreement, act as Servicer of the
Receivables by assuming such rights and obligations under
the Servicing Agreement unless a successor Servicer, other
than the Backup Servicer, is appointed by the Trustee under
the Servicing Agreement; provided, however, that the
Backup Servicer shall not be liable for any acts, omissions
or obligations of the Servicer prior to such succession or
for any breach by the Servicer of any of its representations
and warranties contained in the Servicing Agreement or in
any related document or agreement.
(c) Any Servicing Agreement that may be
entered into and any other transactions or servicing
arrangements relating to the Receivables and the other
Trust Property involving a Servicer in its capacity as such
shall be deemed to be for the benefit of the Trust, the
Trustee and the Certificateholders.
(d) Other than the duties specifically set forth in
this Agreement and the Servicing Agreement, the Backup
Servicer shall have no obligation hereunder, including,
without limitation, to supervise, verify, monitor or
administer the performance of the Servicer. The Backup
Servicer shall have no liability for any actions taken or
omitted by the Servicer. The duties and obligations of the
Backup Servicer shall be determined solely by the express
provisions of this Agreement and the Servicing Agreement
and no implied covenants or obligations shall be read into
this Agreement against the Backup Servicer.
Section 4.02. Resignation of Backup Servicer. The
Backup Servicer may resign from the obligations and duties
imposed on it under this Agreement and the Servicing Agreement
as Backup Servicer, and shall resign at any time when it ceases to
be an Eligible Servicer, by giving written notice of such
resignation to the Trustee and the Certificateholders; provided,
however, that (a) at least 45 days prior to such resignation the
Backup Servicer shall have notified the Rating Agency, in writing,
of (i) its intention to resign and (ii) the identity of the proposed
successor Backup Servicer, and (b) each Rating Agency shall have,
within a reasonable time thereafter, notified the Backup Servicer
of its approval of such proposed successor Backup Servicer, which
approval shall not be unreasonably withheld by the Rating Agency.
No such resignation shall become effective until a successor
Backup Servicer that is an Eligible Servicer acceptable to the
Majority Certificateholders shall have assumed the responsibilities
and obligations of the Backup Servicer in accordance with Section
10.02; provided however, if a successor Backup Servicer has not
assumed the responsibilities and obligations of the Backup Servicer
within 30 days after such resignation, the Backup Servicer may
petition a court of competent jurisdiction for its removal.
In the event the Backup Servicer shall for any reason no
longer be acting as such (including by reason of resignation as set
forth in this Section 4.02 or an Event of Backup Servicing Default
as specified in Section 10.01), the successor Backup Servicer shall
thereupon assume all of the rights and obligations of the outgoing
Backup Servicer under the Servicing Agreement. In such event,
the successor Backup Servicer shall be deemed to have assumed all
of the Backup Servicer's interest therein and to have replaced the
outgoing Backup Servicer as a party to the Servicing Agreement
to the same extent as if the Servicing Agreement had been assigned
to the successor Backup Servicer, except that the outgoing Backup
Servicer shall not thereby be relieved of any liability or obligations
on the part of the outgoing Backup Servicer to the Servicer under
such Servicing Agreement to the extent such obligations or
liabilities arose prior to the assumption by the successor Backup
Servicer of the obligations of the Backup Servicer thereunder. The
outgoing Backup Servicer shall, upon request of the Trustee,
deliver to the successor Backup Servicer all documents and records
relating to the Servicing Agreement and the Receivables and
otherwise use its reasonable efforts to effect the orderly and
efficient transfer of the Servicing Agreement to the successor
Backup Servicer.
Section 4.03. Covenant of Backup Servicer. The Backup
Servicer shall promptly notify the Trustee of the occurrence of any
Event of Backup Servicing Default or Event of Servicing Default
of which it has obtained actual knowledge and any breach by the
Backup Servicer or the Seller of any of its respective covenants or
representations and warranties contained in this Agreement.
Section 4.04. Servicing Fees. The total servicing fees
payable on each Distribution Date to the Backup Servicer and the
Servicer shall equal the Backup Servicer Fee and the Servicing
Fee, respectively. Any proposed increase in the Backup Servicer
Fee or the Servicing Fee due to the assumption of duties hereunder
or under the Servicing Agreement by a successor Backup Servicer
or successor Servicer shall be approved by the Seller, each Rating
Agency and the Majority Certificateholders. The Backup Servicer
shall also be entitled to any reimbursement pursuant to Section
9.03. Any Servicing Fee payable to the Servicer hereunder or
pursuant to the Servicing Agreement shall be paid to the Servicer
and/or to one or more subservicers as the servicer may from time
to time direct in writing to the Trustee.
Section 4.05. Costs and Expenses. All reasonable out-of-
pocket costs and expenses incurred by the Backup Servicer in
carrying out its duties as Backup Servicer hereunder, including all
out-of-pocket fees and expenses not expressly stated hereunder to
be for the account of the Trust or the Seller, shall be paid or
caused to be paid by the Backup Servicer, and the Backup Servicer
shall be entitled to reimbursement therefor hereunder. Nothing in
this Section 4.05 shall be construed to limit the compensation to be
paid to or retained by the Backup Servicer pursuant to Section
4.04.
Section 4.06. Standard of Care. In managing,
administering, servicing and making collections on the
Receivables, and in performing its obligations under the Servicing
Agreement after succeeding as Servicer thereunder, the Backup
Servicer will exercise that degree of skill and care consistent with
the same degree of skill and care that the Backup Servicer
exercises with respect to similar motor vehicle loans owned and/or
serviced by the Backup Servicer and that is consistent with prudent
industry standards, and will apply in the management,
administration, servicing and collection of the Receivables and in
the administration and enforcement of the Insurance Policies
relating to the Receivables, those standards, policies and
procedures consistent with the best standards, policies and
procedures the Backup Servicer applies with respect to similar
motor vehicle loans owned or serviced by it, and, to the extent not
inconsistent with the foregoing, to exercise that degree of skill and
care it uses in servicing assets held for its own account; provided,
however, that notwithstanding the foregoing, the Backup Servicer
shall not, except pursuant to a judicial order from a court of
competent jurisdiction, or as otherwise required by applicable law
or regulation, release or waive the right to collect the unpaid
balance on any Receivable and provided, further, that the Backup
Servicer shall not amend or modify any Receivable, unless a
default with respect to such Receivable has occurred or is, in the
judgment of the Backup Servicer, imminent. In performing its
duties and obligations hereunder or under the Servicing
Agreement, in the event there is no Servicer managing,
administering, servicing or making collections on the Receivables
and administering and enforcing the Insurance Policies relating to
the Receivables, the Backup Servicer shall comply with all
applicable federal and state laws and regulations, shall maintain all
state and federal licenses and franchises necessary for it to perform
its servicing responsibilities hereunder and thereunder, and in such
event it shall exercise the same degree of skill and care it uses in
managing, administering, servicing and making collection on the
Receivables and administering and enforcing the Insurance Policies
in its capacity as Backup Servicer hereunder, and shall not impair
the rights of the Trust or the Certificateholders in the Trust
Property.
ARTICLE V
DISTRIBUTIONS; ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Accounts.
(a) The Trustee shall establish the Collection
Account, the Funding Account and the Certificate Account
in the name of the Trustee for the benefit of the
Certificateholders. The Collection Account, the Funding
Account and the Certificate Account shall be segregated
trust accounts established with the trust department of the
Trustee. The Servicer shall establish the Lock-Box
Account pursuant to the Servicing Agreement. The Lock-
Box Account shall be a non-interest bearing account
established with a Lock-Box Account Depository, which
shall at all times be an Eligible Institution, by the Servicer
for the sole benefit of the Trust and other holders of retail
installment sales contracts originated by Aegis Finance or
its Affiliates. All of the foregoing Accounts shall be
Eligible Accounts.
(b) Amounts held in the Collection Account, the
Certificate Account and the Funding Account shall be
invested by the Trustee, upon the written direction of the
Seller, in Eligible Investments. Any such investment in the
Certificate Account or the Funding Account shall mature no
later than (i) one Business Day before the Distribution Date
(or Funding Date with respect to the Funding Account),
next succeeding the date of investment or, (ii) in the case
of money market fund investments, on such Distribution
Date. Any such investment in the Collection Account shall
mature not later than two Business Days before such
Distribution Date. Any written investment direction by the
Seller shall certify that any such investment is authorized
by this Section 5.01. The Trustee shall have no authority
to sell or otherwise dispose of Eligible Investments
attributable to funds held in the Certificate Account, the
Collection Account or the Funding Account prior to their
respective maturity dates. Interest and earnings on
investments of funds in any Account shall be credited to
and all losses borne by the Account with respect to which
they were derived. All accounts with the Trustee must be
trust accounts subject to regulations substantially similar to
12 C.F.R. SEC 9.10(b). The Trustee shall not have any
responsibility or liability for any investment of moneys at
the direction of the Seller or any loss resulting therefrom.
(c) The Servicer has appointed ▇▇▇▇▇ Fargo
Bank, N.A., as the initial Lock-Box Account Depository
under the Servicing Agreement. All funds of the Trust
held by a Lock-Box Account Depository are and shall
remain the property of the Trust.
Section 5.02. Collections. Pursuant to the Servicing
Agreement, the Servicer shall remit to the Lock-Box Account as
soon as practicable, but in no event later than its close of business
on the Business Day after receipt thereof by the Servicer, all
payments by or on behalf of the Obligors with respect to each
Receivable (other than Purchased Receivables), all Recoveries and
all Risk Default Insurance Proceeds, all as collected during the
Collection Period. As provided in the Servicing Agreement, the
Servicer shall cause the Lock-Box Account Depository to transfer
all available funds applied to the Receivables in excess of $2,000
from the Lock-Box Account to the Collection Account on each
Business Day. In the event an Obligor remits funds to the Trustee
rather than remitting such funds directly to the Servicer, the
Trustee shall notify the Servicer and shall deposit such amounts
into the Collection Account within one (1) Business Day after
receipt.
Section 5.03. Application of Collections. All collections
for the Collection Period shall be applied by the Trustee in
accordance with reports provided to the Trustee by the Servicer
pursuant to the Servicing Agreement, as follows:
With respect to each Receivable (other than a Purchased
Receivable), payments by or on behalf of the Obligor shall be
applied to the Scheduled Payment. Any excess payments received
constituting Scheduled Payments for subsequent Collection Periods
shall be applied to the Principal Balance of the Receivables on the
Distribution Date relating to such subsequent Collection Period.
Section 5.04. Miscellaneous Servicer Collections. All
Miscellaneous Servicer Collections shall be deposited by the
Servicer to the Lock-Box Account within one Business Day of
receipt thereof.
Section 5.05. Additional Deposits. The Trustee shall
deposit or cause to be deposited in the Collection Account the
aggregate Purchase Amount received with respect to Purchased
Receivables and shall, upon receipt, deposit such other amounts to
such accounts as may be specified herein. All such deposits shall
be made in Automated Clearinghouse Corporation next-day funds
or immediately available funds, on or before the Business Day
preceding the Distribution Date.
Section 5.06. Distributions.
(a) On each Distribution Date, the Trustee shall
cause to be made the transfers and distributions set forth in
this Section 5.06 in the amounts set forth in the Monthly
Servicing Certificate for such Distribution Date.
(b) The Trustee shall, on each Determination
Date, based upon a certificate delivered to the Trustee from
the Backup Servicer, calculate the Total Available
Distribution Amount, the Class A Distributable Amount,
the Class B Distributable Amount, the Class C
Distributable Amount, the Reserve Fund balance and,
based on the Total Available Distribution Amount,
determine the amount distributable to the Certificateholders
and the other distributions to be made on such Distribution
Date.
(c) Two (2) Business Days prior to each
Distribution Date, the Trustee shall transfer from the
Collection Account to the Certificate Account an amount
equal to the Total Available Distribution Amount and all
investment earnings and interest on the funds in the
Collection Account.
(d) The rights of the Class B Certificateholders
to receive distributions in respect of the Class B
Certificates shall be and hereby are subordinated to the
rights of the Class A Certificateholders to receive
distributions in respect of the Class A Certificates to the
extent provided in this Section. The rights of the Class C
Certificateholders to receive distributions in respect of the
Class C Certificates shall be and hereby are subordinated
to the rights of the Class A Certificateholders and the Class
B Certificateholders to receive their respective distributions
to the extent provided in this Section. Except as otherwise
provided below, on each Distribution Date, the Trustee
(based on the information contained in the Monthly
Servicing Certificate delivered on the related Determination
Date pursuant to the Servicing Agreement) shall make the
following distributions from the funds then on deposit in
the Certificate Account (including funds transferred from
the Reserve Fund when necessary as set forth below and
pursuant to Section 5.07) in the following order of priority:
(i) to the Backup Servicer, the Backup Servicer Fee and
expenses and all unpaid Backup Servicer Fees and unreimbursed
expenses from prior Collection Periods; to the Servicer, the
Servicing Fees and expenses, and all unpaid Servicing Fees and
unreimbursed expenses from prior Collection Periods; to the
Trustee and Custodian, the Trustee and Custodian fees and
expenses and all unpaid Trustee and Custodian fees and
unreimbursed expenses from prior Collection Periods; and to the
successor to the Servicer, the Trustee or the Backup Servicer,
Transition Costs, if any;
(ii)
to the Class A Certificateholders of record, an amount
equal to the sum of the Class A Interest Distributable Amount and
any Class A Interest Carryover Shortfall from the prior
Distribution Date;
(iii) to the Class B Certificateholders of
record, an amount equal to the sum of the Class B
Interest Distributable Amount and any Class B
Interest Carryover Shortfall from the prior
Distribution Date;
(iv) to the Class C Certificateholders of
record, an amount equal to the sum of the Class C
Interest Distributable Amount and any Class C
Interest Carryover Shortfall from the prior
Distribution Date;
(v) to the Class A Certificateholders of
record, an amount equal to the sum of the Class A
Principal Distributable Amount and any Class A
Principal Carryover Shortfall from the prior
Distribution Date;
(vi) to the Class B Certificateholders of
record, an amount equal to the sum of the Class B
Principal Distributable Amount and any Class B
Principal Carryover Shortfall from the prior
Distribution Date; and
(vii) to the Class C Certificateholders of
record, an amount equal to the sum of the Class C
Principal Distribution Amount and any Class C
Principal Carryover Shortfall from the prior
Distribution Date.
(e) On each Distribution Date, the Trustee shall
distribute any Excess Receipts in the following amounts
and in the following order of priority: (i) into the Reserve
Fund until the amount on deposit therein equals the Reserve
Fund Requirement for such date and (ii) any remaining
Excess Receipts will be distributed to the Seller.
(f) All distributions with respect to each Class
of Certificates on each Distribution Date shall be made pro
rata among the outstanding Certificates of such Class, in
proportion to the Percentage Interests evidenced thereby.
All payments to Certificateholders shall be made on each
Distribution Date to each Certificateholder of record on the
related Record Date by check, or, if requested by a
Certificateholder holding Certificates with Original
Certificate Balances in the aggregate in excess of
$1,000,000, by wire transfer to the account designated in
writing by such Holder in the form of Exhibit G hereto (or
such other account as such Certificateholder may designate
in writing) delivered to the Trustee prior to the
Determination Date, in immediately available funds.
Section 5.07. Reserve Fund; Priority of Distributions.
(a) In order to assure that sufficient amounts to
make required payments to the Certificateholders specified
therein will be available, there shall be established and
maintained with the Trustee the following Eligible Account:
the "Reserve Fund--Aegis Auto Receivables Trust 1996-3"
(the "Reserve Fund"), which will include the money and
other property deposited and held therein pursuant to
Section 5.06(e) and this Section. The Reserve Fund shall
not be part of Trust, but instead will be held for the benefit
of the Certificateholders. The Seller and the Trustee
acknowledge that any amounts on deposit in the Reserve
Fund (and any investment earnings thereon) will be owned
directly by the Seller, and such parties hereby agree to treat
the same as assets (and investment earnings) of the Seller
for federal income tax purposes.
(b) (i) The Reserve Fund shall be initially funded
on the Closing Date in the amount of the Reserve Fund
Initial Deposit.
(ii) On each Funding Date, the Trustee shall
deposit in the Reserve Fund an amount transferred from the
Funding Account pursuant to Section 5.08(b) equal to 3.0%
of the Principal Balance of the Additional Receivables to be
purchased by the Seller and sold to the Trust on such
Funding Date.
(c) Amounts held in the Reserve Fund shall be
invested in Eligible Investments, in accordance with written
instructions from the Seller or its designee, and such
investments shall not be sold or disposed of prior to their
maturity but shall mature no later than two Business Days
before the Distribution Date next succeeding the date of
investment. All such investments shall be made in the
name of the Trustee or its nominee. Any loss on
investment of amounts held in the Reserve Fund and all
income and gain realized on the Reserve Fund shall be
credited to such fund. As provided in Section 11.05, the
Trustee shall not have any responsibility for moneys
invested by the Trustee hereunder or any losses resulting
therefrom.
(d) In order to provide for the prompt payment
to the Certificateholders, the Trustee, the Custodian, the
Servicer and the Backup Servicer in accordance with
Section 5.06(d), and to assure availability of the amounts
maintained in the Reserve Fund, the Seller, subject to the
terms and conditions hereof and solely for the purpose of
providing for payment of the fees and expenses of the
Backup Servicer, the Trustee and the Custodian and making
the distributions to the Certificateholders provided for in
Section 5.06 and this Section 5.07, hereby grants in favor
of the Trustee, as collateral agent, and its successor and
assigns, a security interest in and lien upon all its right,
title and interest in and to the Reserve Fund, including the
Reserve Fund Initial Deposit and all proceeds of the
foregoing, and hereby pledges to the Trustee, as collateral
agent, and its successors and assigns, all other amounts and
investments held from time to time in the Reserve Fund
(whether in the form of deposit accounts, instruments,
book-entry securities, uncertificated securities or otherwise)
(all of the foregoing, subject to the limitations set forth
below, the "Reserve Fund Property"); to have and to hold
all the aforesaid property, rights and privileges unto the
Trustee, its successors and assigns, in trust for the uses and
purposes, and subject to the terms and provisions, set forth
in this Section 5.07. The Trustee hereby acknowledges
such transfer and accepts the trust hereunder and shall hold
and distribute the Reserve Fund Property in accordance
with the terms and provisions of this Section 5.07.
(e) The Seller agrees to take or cause to be
taken such further actions, to execute, deliver and file or
cause to be executed, delivered and filed such further
documents and instruments (including, without limitation,
any UCC financing statements or this Agreement) as may
be determined to be necessary to perfect the interests
created by this Section in favor of the Trustee and
otherwise fully to effectuate the purposes, terms and
conditions of this Section. The Seller (with respect to
Reserve Fund Property) shall:
(i) promptly execute, deliver and file
any financing statements, amendments, continuation
statements, assignments, certificates and other
documents with respect to such interests and
perform all such other acts as may be necessary in
order to perfect or to maintain the perfection of the
Trustee's security interest in the Reserve Fund
Property; and
(ii) make the necessary filings of
financing statements or amendments thereto within
ten business days after the occurrence of any of the
following: (1) any change in its corporate name or
any trade name; (2) any change in the location of
its chief executive office or principal place of
business; and (3) any merger or consolidation or
other change in its identity or corporate structure
and promptly notify the Trustee of any such filings.
(f) If on any Distribution Date the Total
Available Distribution Amount is insufficient to distribute
the full amount described in clauses (i) through (vii) of
Section 5.06(d), the Trustee shall withdraw an amount
equal to such insufficiency from the Reserve Fund (any
such amount, the "Reserve Fund Draw") and apply such
amount (in the order of priority provided by Section
5.06(d)) in respect of such insufficiencies. If on any
Distribution Date amounts on deposit in the Reserve Fund
are in excess of the Reserve Fund Requirement for such
date (after giving effect to Reserve Fund Draws on such
date, if applicable), the Trustee shall release such excess to
the Seller. Any amounts released from the Reserve Fund
on any Distribution Date shall not be available for Reserve
Fund Draws on following Distribution Dates. Upon
termination of this Agreement, any amounts on deposit in
the Reserve Fund, after payment of all amounts due the
Backup Servicer, the Trustee, the Custodian, the Servicer
and the Certificateholders, shall be paid to the Seller.
(g) Amounts properly received by the Seller
pursuant to this Agreement shall not be available to the
Trustee or the Trust for the purpose of making deposits to
the Reserve Fund or making payments to the
Certificateholders, nor shall the Seller be required to refund
any amount properly received by them.
Section 5.08. Funding Account.
(a) The Trustee shall establish the Funding
Account for the benefit of the Certificateholders. The
Funding Account shall be initially funded in the amount of
$7,709,463.60.
(b) The Trustee shall use funds on deposit in the
Funding Account on a Funding Date to (i) deposit funds to
the Reserve Fund as required by Section 5.07(b)(ii) hereof
(assuming the occurrence of a Funding Event on such
Funding Date) and (ii) acquire Additional Receivables on
behalf of the Trust.
(c) Two Business Days prior to the Initial
Distribution Date, the Trustee shall first transfer all
amounts received as earnings on income from any
investments or reinvestments of funds in the Funding
Account to the Collection Account and, second, shall
transfer all remaining funds in the Funding Account to the
Certificate Account for the purpose of prepaying the
Certificates on the Initial Distribution Date.
Section 5.09. Statements to Certificateholders; Tax
Returns. With each distribution from the Certificate Account to
the Certificateholders made on a Distribution Date, the Trustee
shall provide to the Rating Agency, the Backup Servicer, the Seller
and each Certificateholder of record, based on the Monthly
Servicing Certificate provided to the Backup Servicer and the
Trustee by the Servicer in the form of Schedule B to the Servicing
Agreement, a statement substantially in the form of Exhibit C to
this Agreement setting forth at least the following information with
respect to such Distribution Date and the related Collection Period,
to the extent applicable:
(a) Servicer Collections:
(i) The Available Interest Distribution Amount;
(ii) The Available Principal Distribution
Amount;
(iii) The Miscellaneous Servicer
Collections; and
(iv) The Total Available Distribution
Amount.
(b) Distributions:
(i) the amount of such distribution allocable to principal in
respect of each Class of Certificates;
(ii) the amount of such distribution
allocable to interest in respect of each Class of
Certificates;
(iii) the amount of the Backup Servicing
Fee, Servicing Fee, Trustee and Custodian Fees and
expenses for the related Collection Period and the
portion of such fees allocable to each Class of
Certificates;
(iv) the amount of Class Interest
Carryover Shortfalls, if any, on such Distribution
Date in respect of each Class of Certificates and the
amount of the Class Principal Carryover Shortfalls,
if any, on such Distribution Date in respect of each
Class of Certificates;
(v) the Pool Factor and the Class Factor
for each Class of Certificates as of such Distribution
Date, after giving effect to payments allocated to
principal reported under clause (i) above;
(vi) the amount on deposit in the Reserve
Fund on such Distribution Date, after giving effect
to amounts deposited in the Reserve Fund and
Reserve Fund Draws on such date;
(vii) the aggregate amount of Reserve
Fund Draws, and the breakdown of the application
of such draws to cover payment shortfalls to Class
A, B or C Certificateholders, made on such
Distribution Date;
(viii) the amount of net investment earnings
with respect to the Reserve Fund earned during the
related Collection Period;
(ix) the amounts, if any, released from
the Reserve Fund to the Seller;
(c) Pool Information:
The Original Pool Balance, the Pool
Balance, the weighted average coupon, the weighted
average maturity (in months) and the remaining
number of Receivables for both the first and the last
day of the preceding Collection Period, after giving
effect to payments allocated to principal reported in
(b)(ii) above.
(d) Receivables Repurchased or Substituted by
Seller:
The number and aggregate Purchase
Amount of Receivables repurchased by Seller and
for any substitution of Receivables, the number and
principal balance of both the Receivables being
replaced and the Receivables substituted.
(e) Delinquency Information:
The amount of Receivables (other
than Defaulted Receivables and Liquidated
Receivables) as to which Obligors are (i) 30 days to
59 days past due (ii) 60 days to 89 days past due,
and (iii) 90 days past due in making Scheduled
Payments.
(f) Repossession Information:
The number and principal balance of
Receivables as to which the Servicer has
repossessed the Financed Vehicle during the current
period and on a cumulative basis.
(g) Liquidated and Defaulted Receivables
Information:
The number and principal balance of
Receivables which became Liquidated Receivables
(other than Receivables previously characterized as
Defaulted Receivables) and the number and
principal balance of Receivables which became
Defaulted Receivables during the Collection Period
and on a cumulative basis.
(h) Recoveries:
The amount of Liquidation Proceeds, the
amount of insurance claims paid under the VSI
Insurance Policy, the amount of rebates received
from the Servicer as a result of cancelled warranty
or extended service contracts and the amount of
claims paid under consumer insurance during the
related Collection Period and on a cumulative basis.
(i) Retention Amount:
The beginning balance, the amount added
with respect to Additional Receivables or quarterly
reserve loss deficiency, the amount subtracted with
respect to approved claims and quarterly reserve
loss surplus, and the ending balance.
(j) Risk Default Insurance Proceeds:
The amount of insurance proceeds paid
under the Risk Default Insurance Policy.
(k) Net Losses:
The amount of Net Losses, if any, on
such Distribution Date and the cumulative amount
of all Net Losses realized on the Receivables since
the Closing Date.
(l) Insurance Claims:
The number of Receivables as to
which a claim was filed under the Risk Default
Policy or the VSI Insurance Policy, the amount of
such claims, the number of claims rejected and the
principal balance of related Receivables rejected
under the Risk Default Policy for the related
Collection Period and on a cumulative basis.
(m) Funding Account:
The beginning balance, the amount
withdrawn to purchase Additional Receivables and
to make deposits to the Reserve Fund, the amount
of any reinvestment income earned on the moneys
on deposit therein, and the ending balance.
(n) Collection Account:
The amount of reinvestment income
on funds held in the Collection Account.
(o) Other Information:
Any other information regarding each
distribution which any Certificateholder reasonably
requests in writing 30 days prior to such distribution
and which the Trustee can provide without undue
expense or effort.
Within thirty (30) days after the end of each calendar year,
the Trustee shall furnish to each Person who at any time during
such calendar year was a Certificateholder of record and received
any payment thereon (a) a report as to the aggregate of amounts
reported pursuant to clauses (b)(i), (ii) and (iii) of this Section 5.09
for such calendar year or applicable portion thereof during which
such Person was a Certificateholder and (b) such information as
may be reasonably requested by the Certificateholders or required
by the Code, and the regulations thereunder, to enable such
Holders to prepare their federal and state income tax returns.
Within thirty (30) days after the end of each calendar year, the
Trustee shall furnish or shall cause to be furnished to the Seller a
statement containing such of the information provided pursuant to
this Section 5.09 as relates to distributions to the Seller,
aggregated for such calendar year, as well as information
respecting the amounts which were transferred from the Reserve
Fund to make payments to Certificateholders and amounts
otherwise distributable to the Seller which were placed in the
Reserve Fund. The obligation of the Trustee set forth in this
paragraph shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the
Backup Servicer pursuant to any requirements of the Code.
The Seller shall prepare any tax returns or other forms
required to be filed by the Trust. So long as no applicable statute,
Treasury regulation or applicable Internal Revenue Service ruling
or other administrative pronouncement requires to the contrary, all
such tax returns shall be prepared in a manner consistent with tax
information reporting positions described in the Offering
Memorandum prepared in connection with the Certificates dated
September 12, 1996. The Trustee, upon request, will furnish the
Seller with all such information known to the Trustee as may be
reasonably required in connection with the preparation of all tax
returns of the Trust.
Section 5.10. Reliance on Information from the Servicer.
Notwithstanding anything to the contrary contained in this
Agreement, all distributions from any of the accounts described in
this Article V and any movement of cash between such accounts
shall be made by the Trustee in reliance on information provided
to the Trustee by the Servicer in writing, whether by way of the
Servicer's Monthly Servicing Certificate or otherwise unless the
Trustee has actual knowledge or notice of any inaccuracy therein.
ARTICLE VI
RIGHTS OF CERTIFICATEHOLDERS
The Certificates shall represent fractional undivided
interests in the assets of the Trust which shall consist of the right
to receive, at the time and in the amount specified herein pursuant
to Section 5.01, a Percentage Interest in distributions with respect
to the Trust Property secured by funds available pursuant to the
Reserve Fund. Any other right to receive payments or
distributions hereunder shall not represent any interest in the
Accounts or the Reserve Fund, except as specifically provided in
this Agreement. The parties hereto and the Certificateholders
agree that the Certificates represent undivided interests in the
Receivables, which Receivables shall constitute stripped bonds
within the meaning of Section 1286 of the Code.
ARTICLE VII
THE CERTIFICATES
Section 7.01. The Certificates. The Certificates shall be
substantially in the forms of Exhibit A-1 through A-3 hereto. The
Class A, Class B and Class C Certificates shall be issuable in
minimum denominations in Certificate Balances of $250,000 and
integral multiples of $1,000 in excess thereof. The Certificates
shall be executed on behalf of the Trust by manual or facsimile
signature of a Trustee Officer of the Trustee under the Trustee's
seal imprinted thereon and shall bear legends restricting the
transfer thereof. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be valid and binding obligations of the Trust,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates.
Section 7.02. Execution, Authentication of Certificates.
The Trustee shall cause the Certificates to be executed on behalf
of the Trust, and delivered to or upon the written order of the
Seller pursuant to this Agreement. No Certificate shall entitle its
Holder to any benefit under this Agreement or shall be valid for
any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in
Exhibits A-1 to A-3 hereto executed by the Trustee by manual
signature; such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of
their authentication.
Section 7.03. Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall maintain a
Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Register
shall provide for the registration of Certificates and
transfers and exchanges of Certificates as provided in this
Agreement. The Trustee is hereby initially appointed
Certificate Registrar for the purpose of registering
Certificates and transfers and changes of Certificates as
provided in this Agreement. In the event that, subsequent
to the Closing Date, the Trustee notifies the Seller that it
is unable to act as Certificate Registrar, the Seller shall
appoint another bank or trust company, having an office or
agency located in the Borough of Manhattan, The City of
New York, agreeing to act in accordance with the
provisions of this Agreement applicable to it, and otherwise
acceptable to the Trustee, to act as successor Certificate
Registrar under this Agreement.
No transfer of a Certificate shall be made unless (I)
(a) such transfer is made pursuant to an effective
registration statement under the Securities Act and any
applicable state securities laws or (b) (i) such transfer is
exempt from the registration requirements under the
Securities Act and such state securities laws or (ii) the
Certificate Registrar is notified by such transferee that such
Certificate will be registered in the name of the Clearing
Agency or its nominee and shall be held by such transferee
in book-entry form through the Clearing Agency, and (II)
such transfer is to a Person that satisfies the requirements
of paragraph (a) (2) (i) or (a) (2) (ii) of Rule 3a-7 as then
in effect or any successor rule ("Rule 3a-7") under the
Investment Company Act. Each prospective purchaser of
a non-registered Certificate not held in book-entry form
shall deliver a completed and duly executed Transferee's
Certificate in the form of Exhibit K or L, as applicable, to
the Trustee and to the Seller for inspection prior to
effecting any requested transfer. The Seller and the
Trustee may rely conclusively upon the information
contained in any such certificate in the absence of
knowledge to the contrary. In connection with any transfer
within three years from the date of the initial issuance of
the Certificates (other than the transfer of any Certificate
that is or has become registered under the Securities Act on
or before such transfer or any transfer of a Certificate held
in book-entry form), the Trustee shall (except in the case
of a transfer to a "qualified institutional buyer") require an
Opinion of Counsel to the effect that such transfer may be
effected without registration under the Securities Act,
which Opinion of Counsel shall be addressed to the Seller
and the Trustee and shall be secured at the expense of the
Holder. Each Certificate Owner shall be deemed to have
agreed to these restrictions on transfer.
(b) If an election is made to hold a Certificate in
book-entry form, the Certificate shall be registered in the
name of a nominee designated by the Clearing Agency (and
may be aggregated as to denominations with other
Certificates held by the Clearing Agency). With respect to
Certificates held in book-entry form:
(1) the Certificate Registrar and the
Trustee will be entitled to deal with the Clearing
Agency for all purposes of this Agreement
(including the payment of principal of and interest
on the Certificates and the giving of instructions or
directions hereunder) as the sole Holder of the
Certificates, and shall have no obligation to the
Certificate Owners;
(2) the rights of Certificate Owners will
be exercised only through the Clearing Agency and
will be limited to those established by law and
agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency
Participants pursuant to the Depository Agreement;
(3) whenever this Agreement requires or
permits actions to be taken based upon instructions
or directions of Holders of Certificates evidencing
a specified percentage of the Outstanding Amount of
the Certificates, the Clearing Agency will be
deemed to represent such percentage only to the
extent that it has received instructions to such effect
from Certificate Owners and/or Clearing Agency
Participants owning or representing, respectively,
such required percentage of the beneficial interest in
the Certificates and has delivered such instructions
to the Trustee; and
(4) without the consent of the Seller and
the Trustee, no such Certificate may be transferred
by the Clearing Agency except to a successor
Clearing Agency that agrees to hold such Certificate
for the account of the Certificate Owners or except
upon the election of the Certificate Owner thereof
or a subsequent transferee to hold such Certificate
in physical form.
Neither the Trustee nor the Certificate Registrar
shall have any responsibility to monitor or restrict the
transfer of beneficial ownership in any Certificate an
interest in which is transferable through the facilities of the
Clearing Agency.
The Seller shall cause each Certificate to contain a
legend stating that transfer of the Certificates is subject to
certain restrictions and referring prospective purchasers of
the Certificates to this Section 7.03 with respect to such
restrictions.
(c) No transfer of an ERISA-Restricted Certificate
(other than a Certificate held in book-entry form) shall be
made to any Person unless the Trustee and Seller have
received (A) a certificate (substantially in the form of
Exhibit M) from such transferee to the effect that such
transferee (i) is not a Plan or a Person that is using the
assets of a Plan to acquire such Certificate or (ii) is an
insurance company investing assets of its general account
and the exemptions provided by Section III(a) of
Department of Labor Prohibited Transactions Class
Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995) (the
"Exemptions") apply to the transferee's acquisition and
holding of any such Certificate or (B) an opinion of counsel
satisfactory to the Trustee and the Seller to the effect that
the purchase and holding of such Certificate will not
constitute or result in the assets of the Trust being deemed
to be "plan assets" subject to the prohibited transactions
provisions of ERISA or Section 4975 of the Code and will
not subject the Trustee or the Seller to any obligation in
addition to those undertaken in the Agreement; provided,
however, that the Trustee will not require such certificate
or opinion in the event that, as a result of a change of law
or otherwise, counsel satisfactory to the Trustee has
rendered an opinion to the effect that the purchase and
holding of a Certificate by a Plan or a Person that is
purchasing or holding such a Certificate with the assets of
a Plan will not constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code.
Any Certificate Owners of a Certificate held in book-entry
form shall be deemed to have made the representation in
clause (A) of this preceding sentence by its acceptance of
such Certificate. The preparation and delivery of the
certificate and opinions referred to above shall not be an
expense of the Trust, the Trustee nor any other party to the
Agreement but shall be borne by the Holder.
(d) The Certificates, until such time, if at all, as
they become registered under the Securities Act, shall bear
legends stating that they have not been registered under the
Securities Act and are subject to the restrictions on transfer
described in Section 7.03(a). The Certificates shall
additionally bear legends stating that they are subject to the
restrictions on transfer described in Section 7.03(c). By
purchasing a Certificate, each purchaser shall be deemed to
have agreed to these restriction on transfer.
(e) The Holder of a Certificate desiring to effect
any transfer or assignment shall, and the transferee of such
Certificate by purchasing such Certificate agrees to,
indemnify the Trustee and the Seller against any liability
that may result if the transfer or assignment is not made in
accordance with the provisions of this Section 7.03 and
applicable federal and state securities laws.
(f) Upon surrender for registration of transfer of
any Certificate at the Corporate Trust Office, the Trustee
shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new
Certificates of the same Class in authorized denominations
of a like aggregate principal amount.
(g) At the option of a Class A, Class B or Class C
Certificateholder, such holder's Certificates may be
exchanged for other Certificates of the same Class in
authorized denominations of a like aggregate principal
amount, upon surrender of the Certificates to be exchanged
at any such office or agency. Whenever any Certificates
are so surrendered for exchange the Trustee on behalf of
the Trust shall execute, authenticate and deliver the
Certificates that the Certificateholder making the exchange
is entitled to receive.
(h) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer and
exchange shall be cancelled and subsequently disposed of
by the Trustee.
(i) No service charge shall be made to the
Certificateholders for any registration of transfer or
exchange of Certificates, but the Trustee may require
payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
(j) The Class A Certificates shall initially be issued
in book-entry form to "qualified institutional buyers" as
defined in Rule 144A under the Securities Act.
Section 7.04. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate shall be surrendered
to the Certificate Registrar, or if the Certificate Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft
of any Certificate (provided that a Certificateholder's written
statement with respect to such destruction, loss or theft shall
constitute satisfactory evidence thereof) and (b) there shall be
delivered to the Certificate Registrar and the Trustee such security
or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, the Trustee on behalf
of the Trust shall execute and the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor
and denomination. In connection with the issuance of any new
Certificate under this Section 7.04, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to
this Section 7.04 shall constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 7.05. Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Trustee
or the Certificate Registrar may treat the Person in whose name
any Certificate shall be registered as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 5.06
and for all other purposes whatsoever, and neither the Trustee nor
the Certificate Registrar shall be bound by any notice to the
contrary.
Section 7.06. Access to List of Certificateholders' Names
and Addresses. The Trustee shall furnish or cause to be furnished
to the Servicer, at the expense of the Trust, within 15 days after
receipt by the Trustee of a request therefor from the Servicer in
writing, a list, in such form as the Servicer may reasonably
require, of the names and addresses of the Certificateholders as of
the most recent Record Date. Each Holder, by receiving and
holding a Certificate, shall be deemed to have agreed to hold
neither the Servicer nor the Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from
which such information was derived.
Section 7.07. Maintenance of Office or Agency. The
Trustee shall maintain in Minneapolis, Minnesota, or New York,
New York, an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustee
in respect of the Certificates and this Agreement may be served.
The Trustee initially designates the Corporate Trust Office as
specified in this Agreement as its office for such purposes. The
Trustee shall give prompt written notice to the Backup Servicer
and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
Section 7.08. Notices to Certificateholders. Whenever
notice or other communication to the Certificateholders is required
under this Agreement, the Trustee shall give all such notices and
communications specified herein to be given to Holders of the
Certificates at their respective addresses as they appear in the
Certificate Register.
ARTICLE VIII
THE SELLER
Section 8.01. Representations of Seller. The Seller makes
the following representations on which the Trustee relies in
accepting the Receivables in trust and executing and authenticating
the Certificates on the Closing Date. The representations speak as
of the Closing Date, but shall survive the pledge, transfer and
assignment of the Receivables to the Trustee in trust for the benefit
of the Certificateholders.
(a) Organization and Good Standing. The
Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) Due Qualification. The Seller is in good
standing and duly qualified to do business and has obtained
all necessary licenses and approvals in the States of
Delaware and New Jersey and all other jurisdictions in
which the ownership or lease of property or the conduct of
its business shall require such qualifications, unless the
failure of the Seller to obtain such licenses and approvals
would have no material adverse effect on the Seller's
ability to fulfill its obligations hereunder.
(c) Power and Authority. The Seller has the
power and authority to execute and deliver this Agreement
and to carry out its terms; the Seller has full power and
authority to sell and assign the property to be so sold and
assigned to and deposited with the Trustee as part of the
Trust and such sale and assignment is valid and binding
against the Seller and has been duly authorized by the
Seller by all necessary action; and the execution, delivery
and performance of this Agreement have been duly
authorized by the Seller by all necessary action and this
Agreement is the legal, valid and binding obligation of the
Seller, enforceable in accordance with its terms. The
Seller has duly executed and delivered this Agreement and
any other agreements and documents necessary to effectuate
the transactions contemplated hereby.
(d) No Violation. The consummation of the
transactions contemplated by this Agreement and the
fulfillment of the terms hereof neither conflict with, result
in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or bylaws of the
Seller, or any indenture, agreement, or other instrument to
which the Seller is a party or by which it shall be bound;
nor result in the creation or imposition of any Lien upon
any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than this
Agreement); nor violate any law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable
to the Seller of any court or of any federal or State
regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the
Seller or its properties.
(e) No Proceedings. To the Seller's
knowledge, there are no proceedings or investigations
pending, or threatened, before any court, regulatory body,
administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its
properties: (i) asserting the invalidity of this Agreement,
the Purchase Agreement or the Certificates; (ii) seeking to
prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by
the Purchase Agreement or this Agreement; (iii) seeking
any determination or ruling that might materially and
adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this
Agreement, the Purchase Agreement or the Certificates; or
(iv) relating to the Seller and which might adversely affect
the federal or State income tax attributes of the Certificates.
(f) No Approvals. No approval, authorization
or other action by, or filing with, any governmental
authority of the United States of America or any of the
States is required or necessary to consummate the
transactions contemplated hereby, except as such as have
been duly obtained or made by the Closing Date. Seller
complies in all material respects with all applicable laws,
rules and orders with respect to itself, its business and
properties and the Receivables; and Seller maintains all
applicable permits and certifications.
(g) Taxes. The Seller has filed all federal,
State, county, local and foreign income, franchise and other
tax returns required to be filed by it through the date
hereof, and has paid all taxes reflected as due thereon.
There is no pending dispute with any taxing authority that,
if determined adversely to the Seller, would result in the
assertion by any taxing authority of any material tax
deficiency, and the Seller has no knowledge of a proposed
liability for any tax to be imposed upon the Seller's
properties or assets for which there is not an adequate
reserve reflected in the Seller's current financial statements.
(h) Adequate Provisions for Taxes. The
provisions for taxes on the Seller's books are in accordance
with generally accepted accounting principles.
(i) Pension/Profit Sharing Plans. No
contribution failure has occurred with respect to any
pension or profit sharing plan, and all such plans have been
fully funded as of the date of this Agreement.
(j) Trade Names. "Aegis Auto Funding
Corp." is the only trade name under which the Seller is
currently operating its business and under which the Seller
operated its business for the period of time during which
the Seller was in existence preceding the Closing Date.
(k) Ability to Perform. There has been no
material impairment in the ability of Seller to perform its
obligations under this Agreement.
(l) Chief Executive Office. Since its
inception, the Seller has maintained its chief executive
office in the State of New Jersey and there have been no
other locations of the Seller's chief executive office
preceding the Closing Date. The Seller shall give written
notice to the Trustee and the Certificateholders at least 30
days prior to relocating its chief executive office and shall
make such filings under the UCC as shall be necessary to
maintain the perfected, first priority security interest in the
Receivables granted hereunder in favor of the Trust.
(m) Adverse Orders. There is no injunction,
writ, restraining order or other order of any nature binding
upon Seller that adversely affects Seller's performance of
this Agreement and the transactions contemplated thereby.
(n) Solvent. Seller is solvent and will not
become insolvent after giving effect to the transactions
contemplated hereunder; Seller is paying its debts as they
become due; Seller, after giving effect to the contemplated
transactions, will have adequate capital to conduct its
business.
(o) Lock-Box Account. Each Obligor of a
Receivable has been directed and is required to remit
payments to the Lock-Box Account.
(p) Consolidation. Seller has operated and
will operate its business such that its assets and liabilities
will not be substantively consolidated with the assets and
liabilities of Aegis Finance and its separate existence will
not be disregarded in any state or federal court proceeding.
(q) Business Purpose. The Seller will acquire
and sell, transfer, assign and otherwise convey (for state
law, tax and financial accounting purposes) the Receivables
for a bona fide business purpose.
(r) Federal Income Tax Purposes. The Seller
intends to treat the transactions contemplated under this
Agreement as a sale of the Receivables to the Trust for
federal income tax purposes, subject to the retention by the
Seller of a stripped coupon therein as described in Section
1286 of the Code. The Seller and the Trustee intend to
cause to be filed all returns or reports in a manner
consistent with such treatment.
(s) Valid Transfer. The Purchase Agreement
constitutes a valid transfer to the Seller of all of Aegis
Finance's right, title and interest in the Receivables
transferred to the Seller pursuant to such Purchase
Agreement.
(t) Seller's Obligations. The Seller has
submitted all necessary documentation for payment of the
Receivables to the Obligors and has fulfilled all of its
applicable obligations hereunder required to be fulfilled as
of the Closing Date.
(u) Rating. The Seller will maintain a rating
on the Certificates with each Rating Agency. The expenses
of maintaining such rating shall be paid as an expense of
the Trust.
(v) 1940 Act. The Seller is not, and is not
controlled by, an "investment company" registered or
required to be registered under the Investment Company
Act of 1940, as amended.
Section 8.02. Liability of Seller; Indemnities. The Seller
shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under this
Agreement, and only to the extent of the Seller's interest in the
Trust Property.
(a) The Seller shall indemnify, defend and
hold harmless the Trustee, the Trust, the Backup Servicer,
the Custodian and each Certificateholder from and against
any taxes, other than income and franchise taxes, that may
at any time be asserted against the Trustee, the Trust, the
Backup Servicer, the Custodian or the Certificateholders
with respect to, and as of the date of, the transfer of the
Receivables to the Trust or the issuance and original sale
of the Certificates, including any sales, gross receipts,
general corporation, tangible personal property, privilege
or license taxes and costs and expenses in defending against
the same.
(b) The Seller shall assume, defend and hold
harmless the Trustee, the Trust, the Backup Servicer, the
Custodian and each Certificateholder from and against any
loss, liability, expense or action, suit, claim or damage
incurred by reason of (i) the Seller's willful misfeasance,
bad faith or negligence in the performance of its duties
under this Agreement, or by reason of reckless disregard
of its obligations and duties under this Agreement (and
such indemnity shall extend to the performance of the
Seller's duties and the satisfaction of its obligations with
respect to any Receivables that become Purchased
Receivables, as provided in this Agreement), (ii) the
Seller's violation of federal or State securities laws in
connection with the exemption from registration of the sale
of the Certificates, and (iii) any transaction arising out of
or contemplated by this Agreement except any loss,
liability, expense, action, suit, claim or damage arising out
of the failure to pay principal, premium, if any, or interest
with respect to the Certificates to the extent such failure
does not result from the Seller's omission to comply with
the terms of this Agreement or acts of the Seller in
contravention of this Agreement.
The assumption of liability or indemnification under this
Section 8.02 shall include, without limitation, reasonable fees and
expenses of counsel and expenses of litigation and shall survive
termination of this Agreement. If the Seller shall have made any
payments to the Trustee pursuant to this Section and the Trustee
thereafter shall collect any of such amounts from others, the
Trustee shall repay such amounts to such party without interest.
Notwithstanding anything to the contrary herein, the liability of the
Seller under this Section 8.02 is intended to be the same primary
liability as would apply to the general partner of a limited
partnership organized under the laws of the State of Delaware.
Potential creditors of the Trust are intended beneficiaries of the
assumption of liabilities by the Seller under this Section 8.02 and
may enforce such assumption in accordance with its tenor.
Section 8.03. Merger or Consolidation of, or Assumption
of the Obligations of, Seller. Any Person (a) into which the Seller
may be merged or consolidated, (b) which may result from any
merger or consolidation to which the Seller shall be a party, or (c)
which may succeed to the properties and assets of the Seller
substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every
obligation of the Seller under this Agreement, shall be the
successor to the Seller hereunder without the execution or filing of
any document or any further act by any of the parties to this
Agreement; provided, however, that (i) immediately after giving
effect to such transaction, no representation or warranty or
covenant made pursuant to Section 3.01 or Section 8.01 shall have
been breached, no Event of Servicing Default, and no event that,
after notice or lapse of time, or both, would become an Event of
Servicing Default shall have happened and be continuing and the
conditions of Section 8.07(a)(ii) shall have been satisfied, (ii) the
Seller shall have delivered to the Trustee and each
Certificateholder an Officer's Certificate and an Opinion of
Counsel, which shall be independent outside counsel, each stating
that such consolidation, merger or succession and such agreement
or assumption comply with this Section 8.03 and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with and (iii) the Seller shall have
delivered to the Trustee an Opinion of Counsel, which shall be
independent outside counsel, either (A) stating that, in the opinion
of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed
that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables, and reciting the details of such filings,
or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The
Seller shall provide notice of any merger, consolidation or
succession pursuant to this Section 8.03 to each Rating Agency and
each Certificateholder and each Rating Agency shall have
confirmed in writing to the Seller and the Trustee (a copy of which
confirmation shall have been delivered by the Seller to each
Certificateholder) that such merger, consolidation or succession
shall not result in a downgrade or withdrawal of the current rating
of the Certificates by such Rating Agency. Notwithstanding
anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (i), (ii) and
(iii) above shall be conditions to the consummation of the
transactions referred to in clauses (a), (b) or (c) above.
Section 8.04. Limitation on Liability of Seller and Others.
The Seller and any director or officer or employee or agent of the
Seller or the Seller's general partner may rely in good faith on the
written advice of counsel or on any document of any kind, prima
facie properly executed and submitted by any Person respecting
any matters arising hereunder.
Section 8.05. Seller May Own Certificates. The Seller
and any Affiliate of the Seller may in its individual or any other
capacity become the owner or pledgee of Certificates with the
same rights as it would have if it were not the Seller or an
Affiliate thereof, except as otherwise provided in the definition of
"Certificateholder" in Section 1.01. Certificates so owned by or
pledged to the Seller or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of the
Certificates, other than with respect to Voting Interests.
Notwithstanding the foregoing, the Seller will not, and will not
permit any of their Affiliates (or any Person acting on behalf of
the Seller or any such Affiliate) to directly or indirectly acquire or
make any offer to acquire any Certificates unless the Seller or such
Affiliate (or such Person acting on behalf thereof) shall have
offered to acquire Certificates, pro rata, from all Holders and upon
the same terms.
Section 8.06. Covenants of the Seller. The Seller shall:
(a) not impair the rights of the
Certificateholders or the Trustee in the Receivables;
(b) except for the sale and assignment effected
under this Agreement and prior to the termination of the
Trust, not sell, pledge, assign, or transfer to any other
Person, or grant, create, incur, assume, or suffer to exist
any Lien on any Receivable sold to the Trustee or any
interest therein;
(c) immediately notify the Trustee of the
existence of any Lien on any Receivable;
(d) defend the right, title, and interest of the
Trustee in, to, and under the Receivables transferred to the
Trustee, against all claims of third parties claiming through
or under the Seller, Aegis Finance or the Servicer;
(e) make at its sole cost and expense any
filings, reports, notices, applications, registrations with,
and seek any consents or authorizations from, the Securities
and Exchange Commission and any state securities
authority on behalf of the Trust as may be necessary or
advisable or reasonably requested by the Trustee, and shall
comply with any federal or State securities or reporting
requirements laws;
(f) comply in all respects with the terms and
conditions of the Purchase Agreement and not amend,
modify, or waive any provision of the Purchase Agreement
in any manner relating to the obligation of Aegis Finance
to repurchase Receivables or in any manner that would
have a materially adverse effect on the interests of the
Certificateholders;
(g) promptly notify the Trustee and the
Certificateholders of the occurrence of any Event of
Backup Servicing Default or Event of Servicing Default
and any breach by the Seller or the Backup Servicer of any
of its respective covenants or representations and warranties
contained in this Agreement or, with respect to the Seller,
in the Purchase Agreement;
(h) make at its sole cost and expense any
filings, reports, notices, or applications and seek any
consents or authorizations from any and all government
agencies, tribunals, or authorities in accordance with the
UCC and any State vehicle license or registration authority
on behalf of the Trust as may be necessary or advisable or
reasonably requested by the Trustee to create, maintain and
protect a first-priority perfected security interest of the
Trust in, to, and on the Financed Vehicles and a
first-priority perfected ownership interest of the Trust in,
to, and on the Receivables transferred to it;
(i) maintain a rating on the Certificates with
each Rating Agency; the expenses of maintaining such
rating shall be paid as an expense of the Trust; and
(j) upon request of any Certificateholder,
furnish the information required by paragraph (d)(4) of
Rule 144A promulgated under the Securities Act.
Section 8.07. Enforcement by Trustee. The Seller hereby
acknowledges and agrees that the following covenants and
agreements of the Seller shall be enforceable by the Trustee at all
times until the Trust is terminated.
(a) Covenants Regarding Operations:
(i) The Seller shall not engage in any
business or activity other than in connection with or
relating to the purchase of auto loan receivables and
the issuance of rated debt secured by, or certificates
of participation in, a pool of auto loan receivables.
(ii) The Seller shall not consolidate or
merge with or into any other entity or convey or
transfer its properties and assets substantially as an
entirety to any entity unless (A) the entity (if other
than the Seller) formed or surviving such
consolidation or merger, or that acquires by
conveyance or transfer the properties and assets of
the Seller substantially as an entirety, shall be
organized and existing under the laws of the United
States of America or any State thereof or the
District of Columbia, and shall expressly assume in
form satisfactory to the Rating Agency and the
Majority Certificateholders, the performance of
every covenant on the part of the Seller to be
performed or observed pursuant to this Agreement
and the Purchase Agreement, (B) immediately after
giving effect to such transaction, no default or event
of default under this Agreement shall have occurred
and be continuing and (C) the Seller shall have
delivered to the Rating Agency, each
Certificateholder and the Trustee an Officers'
Certificate and an opinion of independent counsel,
each stating that such consolidation, merger,
conveyance or transfer comply with this Agreement.
(iii) The Seller shall not dissolve or
liquidate, in whole or in part, except (A) as
permitted in paragraph (ii) above or (B) with the
prior written consent of the Trustee and prior
written confirmation from the Rating Agency (a
copy of which shall be provided to the Trustee and
each Certificateholder by the Seller) that such
dissolution or liquidation will have no adverse effect
on the rating assigned to the Rated Certificates.
(iv) The funds and other assets of the
Seller shall not be commingled with those of any
other corporation, entity or Person, including, but
not limited to, the parent or Affiliates of the Seller.
(v) The Seller shall not hold itself out as
being liable for the debts of any other party,
including, but not limited to, the debts of the parent
or Affiliates of the Seller.
(vi) The Seller shall not form, or cause to
be formed, or otherwise have, any subsidiaries.
(vii) The Seller shall act solely in its
corporate name and through the duly authorized
officers or agents in the conduct of its business, and
shall conduct its business so as not to mislead others
as to the identity of the entity with which they are
concerned.
(viii) At all times, except in the case of a
temporary vacancy, which shall promptly be filled,
the Seller shall have on its board of directors at
least one director who qualifies as an "Independent
Director" as such term is defined in the Seller's
Certificate of Incorporation as originally filed with
the Delaware Secretary of State's office.
(ix) The Seller shall maintain records and
books of account of the Seller and shall not
commingle such records and books of account with
the records and books of account of any Person.
The books of the Seller may be kept (subject to any
provision contained in the statutes) inside or outside
the State of New Jersey at such place or places as
may be designated from time to time by the board
of directors of the Seller.
(x) The board of directors of the Seller
shall hold appropriate meetings to authorize all of
its corporate actions. Regular meetings of the board
of directors of the Seller shall be held not less
frequently than three times per annum.
(xi) Meetings of the shareholders of the
Seller shall be held not less frequently than one time
per annum.
(xii) The Seller shall not amend, alter,
change or repeal any provision contained in this
Section 8.07(a) without (A) the affirmative vote in
favor thereof of eighty percent (80%) of the then
outstanding shares of the Seller entitled to vote
thereon; (B) the prior written consent of the Trustee
and the Majority Certificateholders; and (C) the
prior written confirmation from the Rating Agency
that the rating on the Rated Certificates will not be
impaired.
(xiii) The Seller shall not, without the
affirmative unanimous vote of the whole board of
directors of the Seller (including at least one
director referred to in clause (viii) above), institute
any proceedings to adjudicate the Seller a bankrupt
or insolvent, consent to the institution of bankruptcy
or insolvency proceedings against the Seller, file a
petition seeking or consenting to reorganization or
relief under any applicable federal or State law
relating to bankruptcy, consent to the appointment
of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Seller
or a substantial part of its property or admit its
inability to pay its debts generally as they become
due or authorize any of the foregoing to be done or
taken on behalf of the Seller.
(xiv) The Seller is not and shall not be
involved in the day-to-day or other management of
its parent or any of its Affiliates.
(xv) Other than the purchase and sale or
pledge of assets as provided in this Agreement and
related agreements with respect to this transaction
and other transactions relating to the purchase of
auto loan receivables and the issuance of rated debt
or rated certificates of participation, the Seller shall
engage in no other transactions with any of its
Affiliates.
(xvi) Seller shall maintain a separate
business office and telephone number from any of
its Affiliates.
(xvii) Seller's financial statements shall
reflect its separate legal existence from any of its
Affiliates.
(xviii) The Seller will not amend its
Certificate of Incorporation in any respect material
to the Certificateholders without the consent of the
Rating Agency.
(xix) The Seller shall use separate
invoices, stationery and checks.
(xx) The Seller shall not suffer or permit
the credit or assets of Aegis Finance to be held out
as available for the obligations of the Seller.
(xxi) The Seller shall enter into
transactions with Aegis Finance or its affiliates only
on commercially reasonable terms.
(xxii) The Seller shall not incur or issue
any "Obligation" (as such term is defined in its
Certificate of Incorporation) in contravention of the
limitations set forth therein.
(xxiii) The Seller shall not issue any
"Securities" or incur or issue any "Obligations" (as
such terms are defined in its Certificate of
Incorporation) under any other pooling and
servicing agreement, purchase agreement or
otherwise, unless such agreement contains an
express provision substantially similar to Section
13.10 hereof limiting recourse to the Seller to the
assets involved in the transaction to which such
agreement relates.
Section 8.08. No Bankruptcy Petition. The Seller
covenants and agrees that prior to the date which is one year and
one day after the payment in full of all securities issued by the
Seller or by a trust for which the Seller was the depositor, which
securities were rated by any nationally recognized statistical rating
organization, it will not institute any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy or similar law.
ARTICLE IX
THE BACKUP SERVICER
Section 9.01. Representations of Backup Servicer. The
Backup Servicer makes the following representations on which the
Trustee relies in accepting the Receivables in trust and executing
and authenticating the Certificates on the Closing Date. The
representations speak as of the Closing Date, but shall survive the
sale and assignment of the Receivables to the Trustee in trust for
the benefit of the Certificateholders.
(a) Organization and Good Standing. The
Backup Servicer shall have been duly organized and shall
be validly existing and in good standing under the federal
laws of the United States of America, with power and
authority to own its properties and to conduct its business
as such properties shall be currently owned and such
business is presently conducted.
(b) Power and Authority. The Backup Servicer
shall have the power and authority to execute and deliver
this Agreement and the Servicing Agreement and to carry
out their respective terms; and the execution, delivery and
performance of this Agreement and the Servicing
Agreement shall have been duly authorized by the Backup
Servicer by all necessary corporate action. Each of this
Agreement and the Servicing Agreement constitutes the
valid and binding obligation of the Backup Servicer
enforceable in accordance with its terms.
(c) No Violation. The consummation of the
transactions by the Backup Servicer contemplated by this
Agreement and the Servicing Agreement and the fulfillment
of the terms hereof and thereof neither conflict with, result
in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default
under, the charter or bylaws of the Backup Servicer, or, to
the best of the Backup Servicer's knowledge, any
indenture, agreement or other instrument to which the
Backup Servicer is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than this Agreement
and the Servicing Agreement); nor to the best of the
Backup Servicer's knowledge, any law, order, rule or
regulation applicable to the Backup Servicer of any court
or of any federal or state regulatory body, administrative
agency, or other governmental instrumentality having
jurisdiction over the Backup Servicer or its properties.
(d) No Proceedings. To the Backup Servicer's
best knowledge, there are no proceedings or investigations
pending, or threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality
having jurisdiction over the Backup Servicer or its
respective properties: (A) asserting the invalidity of this
Agreement or the Servicing Agreement; (B) seeking to
prevent the consummation of any of the transactions
contemplated by this Agreement or the Servicing
Agreement; or (C) seeking any determination or ruling that
might materially and adversely affect the performance by
the Backup Servicer of its obligations under, or the validity
or enforceability of, this Agreement or the Servicing
Agreement.
Section 9.02. Merger or Consolidation of, or Assumption
of the Obligations of, or Resignation of Backup Servicer. Any
Person (a) into which the Backup Servicer may be merged or
consolidated, (b) which may result from any merger or
consolidation to which the Backup Servicer shall be a party, (c)
which may succeed to the properties and assets of the Backup
Servicer substantially as a whole, or (d) which may succeed to the
duties and obligations of the Backup Servicer under this Agreement
and the Servicing Agreement following the resignation of the
Backup Servicer, whether or not such Person executes an
agreement of assumption to perform every obligation of the
Backup Servicer hereunder and thereunder, shall be the successor
to the Backup Servicer under this Agreement and the Servicing
Agreement without further act on the part of any of the parties to
this Agreement or the Servicing Agreement. If at any time
thereafter the Rating Agency shall have delivered to the Backup
Servicer and to the Trustee a statement that such transaction will
have an adverse effect on the rating assigned to the Rated
Certificates, then such transaction shall be deemed to constitute an
Event of Backup Servicing Default.
Section 9.03. Limitation on Liability of Backup Servicer
and Others. Neither the Backup Servicer nor any of the directors
or officers or employees or agents of the Backup Servicer shall be
under any liability to the Trust or the Certificateholders, except as
provided under this Agreement, for any action taken or for
refraining from the taking of any action pursuant to this
Agreement; provided, however, that this provision shall not protect
the Backup Servicer or any such Person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of
reckless disregard of obligations and duties under this Agreement.
The Backup Servicer and any director or officer or employee or
agent of the Backup Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising under this
Agreement.
Except as provided in this Agreement, the Backup Servicer
shall not be under any obligation to appear in, prosecute or defend
any legal action that shall not be incidental to its duties under this
Agreement and the Servicing Agreement, and that in its opinion
may involve it in any expense or liability; provided, however, that
the Backup Servicer may undertake any reasonable action that it
may deem necessary or desirable in respect of this Agreement and
the Servicing Agreement and the rights and duties of the parties to
this Agreement and the Servicing Agreement and the interests of
the Certificateholders under this Agreement and the Servicing
Agreement. In such event, the legal expenses and costs of such
action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust and the Backup Servicer shall be entitled
to be reimbursed therefor.
The Trustee shall distribute out of the Collection Account
on the Distribution Date succeeding the delivery of the Opinion of
Counsel referred to below, without regard to any deficiencies in
the amounts required to be distributed pursuant to Section 5.06,
any expenses, costs or liabilities required from the Trust pursuant
to this Section 9.03, provided, however, that the Trustee shall only
distribute amounts pursuant to this Section 9.03 upon the Trustee's
receipt of an Opinion of Counsel to the effect that such distribution
is permitted by this Agreement.
Section 9.04. Successor Backup Servicer. The Backup
Servicer under this Agreement shall at all times be a corporation
or a banking association organized and existing in good standing
under the laws of the United States or a state thereof; having a
combined capital and surplus as designated from time to time by
each Rating Agency or as otherwise approved by the Rating
Agency (but in any event not less than $100,000,000) and subject
to supervision or examination by federal or state authorities. If
such association or corporation shall publish reports of condition
at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose
of this Section 9.04, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In
case at any time the Backup Servicer shall cease to be eligible in
accordance with the provisions of this Section 9.04, or shall cease
to be an Eligible Servicer, the Backup Servicer shall resign
immediately in the manner and with the effect specified in Section
4.02.
Section 9.05. No Bankruptcy Petition. The Backup
Servicer covenants and agrees that prior to the date which is one
year and one day after the payment in full of all securities issued
by the Seller or by the Trust it will not institute against, or join
any other Person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or
similar law; provided, however, that nothing contained herein shall
prohibit the Backup Servicer from participating in any existing
bankruptcy proceeding.
ARTICLE X
BACKUP SERVICING DEFAULT
Section 10.01. Events of Backup Servicing Default. If
any one of the following events ("Events of Backup Servicing
Default") shall occur and be continuing:
(a) Failure to make any payment, transfer or
deposit required to be made by the Backup Servicer under
the terms of this Agreement or the Servicing Agreement,
which failure shall continue for two (2) Business Days after
the date due; or
(b) Failure on the part of the Backup Servicer
duly to observe or to perform in any material respect any
covenant or agreement of the Backup Servicer set forth in
this Agreement or the Servicing Agreement, which failure
shall (i) materially and adversely affect the rights of
Certificateholders and (ii) continue unremedied for a period
of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been
sent (A) to the Backup Servicer by the Trustee, or (B) to
the Backup Servicer and to the Trustee by the Holders of
Certificates evidencing not less than 20% of the Voting
Interests thereof; or
(c) The entry of a decree or order by a court or
agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or
liquidator for the Backup Servicer in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of
its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 30 consecutive days;
or
(d) The consent by the Backup Servicer to the
appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to the
Backup Servicer or of or relating to substantially all of its
property; or the Backup Servicer shall admit in writing its
inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit
of its creditors or voluntarily suspend payment of its
obligations;
then, and in each and every case, so long as an Event of Backup
Servicing Default shall not have been remedied, either the Trustee,
or the Holders of the Certificates evidencing not less than 20% of
the Voting Interests thereof, by notice then given in writing to the
Backup Servicer (and to the Trustee if given by the
Certificateholders) may terminate all of the rights and obligations
of the Backup Servicer under this Agreement. Thirty (30) days
after the receipt by the Backup Servicer of such written notice, all
authority and power of the terminated Backup Servicer under this
Agreement, whether with respect to the Certificates or the
Receivables or otherwise, shall, without further action, pass to and
be vested in the Trustee if the Trustee is not the same entity as the
terminated Backup Servicer and a successor Backup Servicer has
not been appointed under Section 10.02. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the
predecessor Backup Servicer, as attorney in fact or otherwise, any
and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The predecessor Backup
Servicer shall cooperate with the successor Backup Servicer and
the Trustee in effecting the termination of the responsibilities and
rights of the predecessor Backup Servicer under this Agreement.
Upon receipt of notice of the occurrence of an Event of Backup
Servicing Default, the Trustee shall give notice thereof to the
Rating Agency.
Section 10.02. Appointment of Successor.
(a) Upon a Backup Servicer's receipt of notice
of termination pursuant to Section 10.01 or a Backup
Servicer's resignation in accordance with Section 4.02, the
predecessor Backup Servicer shall continue to perform its
functions as Backup Servicer under this Agreement until
receipt of such notice and, in the case of resignation, until
a successor Backup Servicer shall have assumed the duties
of the Backup Servicer in accordance with this Section
10.02. In the event of a Backup Servicer's termination
hereunder, the Trustee (with the consent of the Majority
Certificateholders) shall appoint a successor Backup
Servicer, and the successor Backup Servicer shall accept its
appointment by a written assumption in form acceptable to
the Trustee. In the event that a successor Backup Servicer
has not been so appointed (i) within 45 days of delivery of
notice of termination, or (ii) within 30 days of resignation,
the Trustee may petition a court of competent jurisdiction
to appoint any established institution, having a combined
capital and surplus of not less than $100,000,000 and
which is an Eligible Servicer, as the successor to the
Backup Servicer under this Agreement.
(b) Upon appointment, the successor Backup
Servicer shall be the successor in all respects to the
predecessor Backup Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Backup Servicer,
including, but not limited to, the assumption by the Backup
Servicer of all duties and obligations of the Servicer in the
event of an Event of Servicing Default with respect to the
Servicer under the Servicing Agreement pursuant to the
terms therein and shall be entitled to all of the rights
granted to the predecessor Backup Servicer, by the terms
and provisions of this Agreement.
(c) The outgoing Backup Servicer shall deliver
to the successor Backup Servicer all documents and records
in its possession which are necessary to enable the
successor Backup Servicer to perform its duties relating to
the Servicing Agreement and the Receivables and otherwise
use its best efforts to effect the orderly and efficient
transfer of the Servicing Agreement to the successor
Backup Servicer.
Section 10.03. Notification to Certificateholders. Upon
any termination of, or appointment of a successor to, a Backup
Servicer pursuant to this Article X, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating
Agency.
Section 10.04. Waiver of Past Defaults. The Majority
Certificateholders (or, in the case of a default referred to in
Section 10.01(a), the Holders of Certificates evidencing 100% of
the Voting Interests thereof) may, on behalf of all Holders of
Certificates, waive any default by the Backup Servicer in the
performance of its obligations hereunder and its consequences.
Upon any such waiver of a past default, such default shall cease to
exist, and any Event of Backup Servicing Default arising therefrom
shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee. The Trustee, both prior
to the occurrence of an Event of Backup Servicing Default and
after an Event of Backup Servicing Default shall have been cured
or waived, shall undertake to perform only such duties as are
specifically set forth in this Agreement. If an Event of Backup
Servicing Default shall have occurred and shall not have been
cured or waived, the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and shall use the same
degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of
his own affairs; provided, however, that if the Trustee shall
assume the duties of a Backup Servicer pursuant to Section 10.02,
the Trustee shall perform such duties in accordance with Section
4.06. If the Trustee is uncertain with respect to performing its
duties or if a conflict arises regarding the Trustee's rights, duties
and obligations, the Trustee may petition a court of competent
jurisdiction for written direction or to interplead necessary parties.
Notwithstanding anything in this Agreement to the contrary,
neither the Trustee nor the Backup Servicer shall have any
authority to perform any act which would cause the Trust to be
characterized as an association taxable as a corporation for federal
income tax purposes.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee that shall be specifically
required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform
as to form to the requirements of this Agreement; provided,
however, in the absence of bad faith on its part, the Trustee can
assume the truth and accuracy of the statements made therein and
the genuineness of the signatures thereon.
The Trustee shall take and maintain custody of the Schedule
of Receivables included as an exhibit to this Agreement and shall
retain all Monthly Servicing Certificates identifying Receivables
that become Purchased Receivables and Liquidated Receivables.
The Trustee shall give written notice to each Rating
Agency, the Certificateholders, the Seller and Aegis Finance of the
occurrence, to its actual knowledge, which notice shall be given
within three (3) Business Days' of the Trustee's receipt of actual
knowledge thereof, of any waiver of or any action taken to cure (i)
any default, breach, violation or event permitting acceleration
under the terms of any Receivable; (ii) any continuing condition
that with notice or the lapse of time would constitute a default,
breach, violation or event permitting acceleration under the terms
of any Receivable; (iii) any default or delinquency under the terms
of any Receivable that remained uncured for more than thirty (30)
days after notice to the Seller; or (iv) any event which constitutes
or with notice or the lapse of time would constitute an Event of
Backup Servicing Default or Event of Servicing Default.
The Trustee shall give written notice to each Rating Agency
and each Certificateholder promptly upon receipt of a notice from
the Backup Servicer pursuant to Section 4.02 hereof or from the
Servicer pursuant to paragraph IV.F.1 of the Servicing Agreement
or the Seller pursuant to Section 8.06(g) hereof of an event which
with the giving of notice or the lapse of time, or both, would
constitute an Event of Backup Servicing Default or an Event of
Servicing Default.
The Trustee shall deliver to each Rating Agency by no later
than the 20th calendar day of each month, a certificate signed by
an officer of the Trustee certifying that, as of the date of such
certificate, based solely upon information provided to the Trustee
by the Servicer or the Backup Servicer, the Trustee has no
knowledge of, nor to the Trustee's best knowledge, has any event
occurred which would cause the Trustee to reasonably believe, that
an Event of Backup Servicing Default or an Event of Servicing
Default has occurred.
No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own bad faith; provided,
however, that:
(a) Prior to the occurrence of an Event of
Backup Servicing Default, and after the curing or waiving
of all such Events of Backup Servicing Default that may
have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as shall be
specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely on
the truth of the statements and the correctness of the
opinions expressed upon any certificates or opinions
furnished to the Trustee and conforming as to form to the
requirements of this Agreement;
(b) The Trustee shall not be liable for an error
of judgment made in good faith by a Trustee Officer,
unless it shall be proved that the Trustee shall have been
negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken in good
faith in accordance with this Agreement or at the direction
of the Holders of Certificates evidencing not less than 20%
of the Voting Interests thereof relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement;
(d) The Trustee shall not be charged with
knowledge of any failure by the Backup Servicer (so long
as the Trustee is not the Backup Servicer) or the Servicer
to comply with the obligations, covenants or
representations or warranties of the Backup Servicer or the
Servicer under this Agreement or the Servicing Agreement,
as the case may be, or of any failure by the Seller to
comply with the obligations, covenants or representations
or warranties of the Seller under this Agreement, unless a
Trustee Officer assigned to the Trustee's Corporate Trust
Department obtains actual knowledge of such failure (it
being understood that, so long as the Trustee is not the
Backup Servicer, knowledge of the Backup Servicer is not
attributable to the Trustee) or the Trustee receives written
notice of such failure from the Backup Servicer, Servicer
or the Seller, as the case may be, or any Holder of
Certificates; and
(e) Without limiting the generality of this Section
or Section 11.04, the Trustee (except if also serving as the
Backup Servicer and the duties of the Backup Servicer
require such) shall have no duty (i) to see to any recording,
filing or depositing of this Agreement or any agreement
referred to therein or any financing statement or
continuation statement evidencing a security interest in the
Receivables or the Financed Vehicles, or to see to the
maintenance of any such recording or filing or depositing
or to any rerecording, refiling or redepositing of any
thereof, (ii) to see to any insurance of the Financed
Vehicles or Obligors or to effect or maintain any such
insurance, (iii) to see to the payment or discharge of any
tax, assessment or other governmental charge or any Lien
or encumbrance of any kind owing with respect to,
assessed or levied against, any part of the Trust, (iv) to
confirm or verify the contents of any reports or certificates
of the Servicer delivered to the Trustee pursuant to this
Agreement or the Servicing Agreement believed by the
Trustee to be genuine and to have been signed or presented
by the proper party or parties or (v) to inspect the Financed
Vehicles at any time or ascertain or inquire as to the
performance or observance of any of the Seller's or the
Servicer's representations, warranties or covenants or the
Servicer's duties and obligations as Servicer under this
Agreement and the Servicing Agreement.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights
or powers, if it believes in its sole discretion that the repayment of
such funds or adequate indemnity against such risk or liability shall
not be reasonably assured to it, and none of the provisions
contained in this Agreement or the Servicing Agreement shall in
any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer,
the Backup Servicer or a Servicer under this Agreement or the
Servicing Agreement, as the case may be.
Section 11.02. Trustee's Certificate. On or as soon as
practicable after each Distribution Date on which Receivables shall
be assigned to the Seller pursuant to Section 11.03, the Trustee
shall execute a Trustee's Certificate (in the form of Exhibit R),
based on the information contained in the Monthly Servicing
Certificate for the related Collection Period, amounts deposited to
the Certificate Account and notices received pursuant to this
Agreement, identifying the Receivables repurchased by the Seller
pursuant to Section 3.02 during such Collection Period, and shall
deliver such Trustee's Certificate, accompanied by a copy of the
Monthly Servicing Certificate for such Collection Period to the
Seller. The Trustee's Certificate submitted with respect to such
Distribution Date shall operate, as of such Distribution Date, as an
assignment, without recourse, representation or warranty, to the
Seller, of all the Trustee's right, title and interest in and to such
repurchased Receivable, and all security and documents relating
thereto, such assignment being an assignment outright and not for
security.
Section 11.03. Trustee's Assignment of Purchased
Receivables. With respect to all Receivables repurchased by the
Seller pursuant to Section 3.02, the Trustee shall by a Trustee's
Certificate (in the form of Exhibit R) assign, without recourse,
representation or warranty, to the Seller all the Trustee's right,
title and interest in and to such Receivables, and all security and
documents relating thereto.
Section 11.04. Certain Matters Affecting Trustee. Except
as otherwise provided in Section 11.01:
(a) The Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution,
Officer's Certificate, Monthly Servicing Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the
proper party or parties.
(b) The Trustee may consult with counsel and
any written Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken
or suffered or omitted by it under this Agreement in good
faith and in accordance with such written Opinion of
Counsel.
(c) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or in relation to this Agreement, at
the request, order or direction of any of the
Certificateholders pursuant to the provisions of this
Agreement, unless such Certificateholders shall have
offered to the Trustee security or indemnity, reasonably
satisfactory to the Trustee, against the costs, expenses and
liabilities that may be incurred therein or thereby.
(d) The Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement.
(e) Except as expressly provided herein, the
Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of
Certificates evidencing not less than 20% of the Voting
Interests thereof; provided, however, that the Trustee may
require reasonable indemnity against any cost, expense or
liability as a condition to so proceeding at the direction of
the Certificateholders.
(f) The Trustee may execute any of the trusts or
powers hereunder or perform any duties under this
Agreement either directly or by or through agents or
attorneys or a custodian. The Trustee shall not be
responsible for any misconduct or negligence of any such
agent or custodian appointed with due care by it hereunder
or of the Servicer in its capacity as Servicer. The Trustee
may act upon the opinion or advice of accountants,
engineers or such other professionals as the Trustee deems
necessary and selected by it in the exercise of reasonable
care, and the Trustee may pay reasonable compensation
and shall be entitled to reimbursement hereunder for such
compensation paid to such professionals, which fee shall be
considered an expense of the Trustee to be paid pursuant to
Section 5.06(d)(i).
(g) Subsequent to the sale of the Receivables by
the Seller to the Trust, the Trustee shall have no duty of
independent inquiry, and the Trustee may rely upon the
representations and warranties and covenants of the Seller
and the Servicer contained in this Agreement and the
Servicing Agreement with respect to the Receivables.
Section 11.05. Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates
(other than the certificate of authentication on the Certificates)
shall be taken as the statements of the Seller, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee
shall make no representations as to the validity or sufficiency of
this Agreement, the Trust Property or of the Certificates (other
than the certificate of authentication on the Certificates), or of any
Receivable or related document or the validity, genuineness or
originality of any document delivered to the Trustee in its capacity
as Custodian. The Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and
enforceability of any security interest in any Financed Vehicle or
any Receivable, or the perfection and priority of such a security
interest or the maintenance of any such perfection and priority, or
for or with respect to the efficacy of the Trust or its ability to
generate the payments to be distributed to Certificateholders under
this Agreement, including, without limitation: the existence,
condition, location and ownership of any Financed Vehicle; the
review of any Servicer File or Custodian File therefor; the
existence and enforceability of any physical damage insurance
thereon; the existence and contents of any Receivable or any
Servicer File or Custodian File or any computer or other record
thereof; the validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the completeness of any
Receivable or any Servicer File or Custodian File; the performance
or enforcement of any Receivable; the compliance by the Seller or
the Servicer, with any warranty or representation made under this
Agreement or the Servicing Agreement or in any related document
and the accuracy of any such warranty or representation prior to
the Trustee's receipt of notice or other discovery of any
noncompliance therewith or any breach thereof (provided,
however, that the receipt of notice or other discovery of such
noncompliance or breach shall only obligate the Trustee to comply
with the terms of Section 3.02 hereof); any investment of moneys
by the Trustee or any loss resulting therefrom (it being understood
that the Trustee shall remain responsible for any Trust property
that it may hold); the acts or omissions of the Seller, the Servicer
or any Obligor; an action of the Servicer taken in the name of the
Trustee; or any action by the Trustee taken at the instruction of the
Servicer; provided, however, that the foregoing shall not relieve
the Trustee of its obligation to perform its duties under this
Agreement. Except if caused by its negligence or its failure to act
in accordance with reasonable and proper instructions given in
writing received by the Trustee, the Trustee shall not be liable for
losses on investments on the funds or on the accounts established
pursuant to Section 5.01. The Trustee shall not be liable for
collections received by the Servicer prior to deposit by the Servicer
of such collections into the Collection Account or for the
application or misapplication of funds, or for other acts or
defaults, by any person, firm or corporation except its own
directors, officers, agents and employees. Except with respect to
a claim based on the Trustee's negligence or willful misconduct,
no recourse shall be had for any claim based on any provision of
this Agreement, the Certificates or any Receivable or assignment
thereof against the Trustee in its individual capacity, the Trustee
shall not have any personal obligation, liability or duty whatsoever
to any Certificateholder or any other Person with respect to any
such claim, and any such claim shall be asserted solely against the
Trust or any indemnitor who shall furnish indemnity as provided
in this Agreement. The Trustee shall not be accountable for the
use or application by the Seller of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any
funds paid to a Servicer in respect of the Receivables. The Seller
hereby certifies to the Trustee that the rating agency rating the
Rated Certificates is the Rating Agency, and that its address is as
set forth in Section 13.05. The Trustee may rely on the accuracy
of such certification until it receives from the Seller an Officer's
Certificate superseding such certification.
Section 11.06. Trustee May Own Certificates. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates and may deal with the Seller and
the Servicer in banking transactions with the same rights as it
would have if it were not Trustee, except as otherwise provided in
the definition of "Certificateholder" in Section 1.01.
Section 11.07. Trustee's Fees and Expenses. The Trustee
shall be entitled to its customary compensation as set forth on
Exhibit H to this Agreement (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) for all services rendered by it in the execution of the
trusts created by this Agreement and in the exercise and
performance of any of the Trustee's powers and duties under this
Agreement. The Trustee shall be paid or reimbursed pursuant to
Section 5.06 upon its request for all reasonable expenses and
disbursements (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons not
regularly in its employ) incurred or made by the Trustee in
accordance with any provisions of this Agreement, except any such
expense or disbursement as may be attributable to its willful
misfeasance, negligence or bad faith. Unpaid fees and expenses
of the Trustee shall bear interest at the prime rate then in effect
plus 2%. The Seller shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred without
willful misfeasance, negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the
Trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties under this Agreement.
Additionally, the Seller, pursuant to Section 8.02, shall indemnify
the Trustee with respect to certain matters. The Trustee shall not
be required to furnish any surety bond. The provisions of this
Section 11.07 shall survive the termination of this Agreement.
Section 11.08. Eligibility Requirements for Trustee. The
Trustee shall at all times be a corporation having an office in the
same state as the location of the Corporate Trust Office as
specified in or pursuant to this Agreement; and organized and
doing business under the laws of such state or the United States of
America; authorized under such laws to exercise corporate trust
powers; having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal
or state authorities. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the
purpose of this Section 11.08, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 11.08,
the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.09.
Section 11.09. Resignation or Removal of Trustee. The
Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Seller and
each Certificateholder. Upon receiving such notice of resignation,
the Majority Certificateholders with the approval of each Rating
Agency shall promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
Trustee. If no successor Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.08 and shall fail to
resign after written request therefor by the Seller, or if at any time
the Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the
Majority Certificateholders may remove the Trustee. If the
Majority Certificateholders shall remove the Trustee under the
authority of the immediately preceding sentence, the Majority
Certificateholders with the approval of the Rating Agency shall
promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the
outgoing Trustee so removed and one copy to the successor
Trustee and payment of all fees and expenses owed to the outgoing
Trustee.
Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this
Section 11.09 shall not become effective until acceptance of
appointment by the successor Trustee pursuant to Section 11.10
and payment of all fees and expenses owed to the outgoing Trustee
or upon order of a court of competent jurisdiction. The Seller
shall provide notice of such resignation or removal of the Trustee
to each Rating Agency.
Section 11.10. Successor Trustee. Any successor Trustee
appointed pursuant to Section 11.09 shall execute, acknowledge
and deliver to the Backup Servicer, the Servicer and to the
predecessor Trustee an instrument accepting such appointment
under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of
its predecessor under this Agreement, with like effect as if
originally named as Trustee. The predecessor Trustee shall upon
payment of its fees and expenses deliver to the successor Trustee
all documents and statements and moneys held by it under this
Agreement; and the Seller and the predecessor Trustee shall
execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties
and obligations.
No successor Trustee shall accept appointment as provided
in this Section 11.10 unless at the time of such acceptance such
successor Trustee shall be eligible pursuant to Section 11.08.
Upon acceptance of appointment by a successor Trustee
pursuant to this Section 11.10, the successor Trustee shall mail
notice of the successor of such Trustee under this Agreement to all
Holders of Certificates at their addresses as shown in the
Certificate Register and to the Rating Agency.
Section 11.11. Merger or Consolidation of Trustee. Any
corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 11.08, without the
execution or filing of any instrument or any further act on the part
of any of the parties hereto; provided, further, that the Trustee
shall mail notice of such merger or consolidation to the Rating
Agency and each Certificateholder.
Section 11.12. Appointment of Co-Trustee or Separate
Trustee. Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust or any Financed
Vehicle may at the time be located, the Backup Servicer and the
Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved
by the Trustee to act as co-trustee, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust,
and to vest in such Person, in such capacity and for the benefit of
the Certificateholders, such title to the Trust, or any part thereof,
and, subject to the other provisions of this Section 11.12, such
powers, duties, obligations, rights and trusts as the Backup
Servicer and the Trustee may consider necessary or desirable. If
the Backup Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, or in
the case an Event of Backup Servicing Default shall have occurred
and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 11.08 and no notice of a
successor trustee pursuant to Section 11.10 and no notice to
Certificateholders of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 11.10.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
(a) All rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred
upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed
(whether as Trustee under this Agreement or as successor
to the Backup Servicer under this Agreement), the Trustee
shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or
any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(b) No trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(c) The Backup Servicer and the Trustee acting
jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article XI.
Each separate trustee and co-trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting
the liability of, or affording protection to, the Trustee. Each such
instrument shall be filed with the Trustee and copies thereof given
to the Backup Servicer.
Any separate trustee or co-trustee may at any time appoint
the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor separate trustee or
co-trustee.
Section 11.13. Representations and Warranties of Trustee.
The Trustee makes the following representations and warranties on
which the Seller and Certificateholders rely:
(a) The Trustee is a banking association duly
organized, validly existing, and in good standing under the
laws of its place of incorporation.
(b) The Trustee has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under this Agreement and the Servicing
Agreement, and shall have taken all necessary action to
authorize the execution, delivery and performance by it of
this Agreement and the Servicing Agreement.
(c) This Agreement and the Servicing Agreement
shall have been duly executed and delivered by the Trustee,
and each constitutes the valid and binding obligation of the
Trustee enforceable in accordance with its terms.
(d) The execution, delivery and performance by
the Trustee of this Agreement (a) does not violate any
provision of any law governing the banking and trust
powers of the Trustee or any order, writ, judgment or
decree of any court, arbitrator, or governmental authority
applicable to the Trustee or any of its assets, (b) does not
violate any provision of the corporate charter or by-laws of
the Trustee, and (c) does not violate any provision of, or
constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on
any properties included in the Trust pursuant to the
provisions of any mortgage, indenture, contract, agreement
or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to materially
and adversely affect the Trustee's performance or ability to
perform its duties under this Agreement or the transactions
contemplated in this Agreement.
(e) The execution, delivery and performance by
the Trustee of this Agreement does not require the
authorization, consent, or approval of, the giving of notice
to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency
regulating the banking and corporate trust activities of the
Trustee.
Section 11.14. No Bankruptcy Petition. Except with the
consent of the Majority Certificateholders, the Trustee covenants
and agrees that prior to the date which is one year and one day
after the payment in full of all securities issued by the Seller or by
the Trust it will not institute against, or join any other Person in
instituting against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law;
provided, however, that nothing contained herein shall prohibit the
Trustee from participating in any existing bankruptcy proceeding.
ARTICLE XII
TERMINATION
Section 12.01. Termination of the Trust.
(a) The Trust and the respective obligations of
the Seller, the Backup Servicer and the Trustee created by
this Agreement (except such obligations as are hereinafter
set forth) shall terminate upon the earliest of (i) payment to
the Certificateholders of all amounts required to be paid to
them pursuant to this Agreement and the disposition of all
property held as part of the Trust Property, (ii) the
purchase as of any Distribution Date by the Seller, at its
option, of the corpus of the Trust as described in Section
12.02, (iii) the Final Scheduled Distribution Date or (iv)
subject to Section 12.01(c), 90 days after the Dissolution of
the Seller. The Seller shall promptly notify the Trustee of
any prospective termination pursuant to this Section 12.01.
(b) Notice of any prospective termination,
specifying the Distribution Date for payment of the final
distribution and requesting the surrender of the Certificates
for cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not earlier than the 15th
day and not later than the 25th day of the month next
preceding the specified Distribution Date stating (A) the
Distribution Date upon which final payment of the
Certificates shall be made and (B) the amount of any such
final payment. Surrender of the Certificates shall not be a
condition of payment of the final distribution; however,
each Certificateholder, by accepting the Certificates, hereby
agrees to indemnify and hold harmless the Trustee, the
Seller and the Certificate Registrar from and against any
and all claims arising from such failure, including but not
limited to claims by third parties claiming to be bona fide
purchasers subsequently presenting such Certificates for
payment.
(c) The Seller shall not voluntarily take any
action that would cause it to cease being deemed a general
partner of the Trust if the Trust were deemed a limited
partnership formed under the Delaware Revised Uniform
Limited Partnership Act and the Residual Interest were
deemed to represent the sole general partnership interest in
such a partnership.
In the event of the Dissolution of the Seller or any
action that would cause the Seller to cease being deemed a
general partner of the Trust if the Trust were deemed a
limited partnership formed under the Delaware Revised
Uniform Limited Partnership Act and the Residual Interest
were deemed to represent the sole general partnership
interest in such a partnership, the Trust shall terminate 90
days after the date of such event and its assets liquidated in
accordance with Section 12.01(d) unless:
A. The Majority Certificateholders inform the
Trustee in writing before the end of such 90 day period that
they disapprove of the liquidation of the assets of the Trust;
and
B. The Seller and the Trustee shall receive an
Opinion of Counsel from independent counsel to the effect
that the continuation of the Trust shall not cause the Trust
to be treated as an association taxable as a corporation for
federal income tax purposes.
During any period that the Certificates are
outstanding, the Seller agrees that it shall not voluntarily
take action that will cause the Dissolution of the Seller.
If the Trust will be terminated and its assets
liquidated in accordance with this Section 12.01(c), the
Trustee shall act as liquidator of the assets of the Trust, but
shall continue to have all the powers, rights and duties of
the Trustee hereunder, under the Servicing Agreement and
the Purchase Agreement until the disposition of the assets
of the Trust and the final distribution to the
Certificateholders, the Trustee and the Backup Servicer of
all amounts required to be paid to them pursuant to this
Agreement.
(d) Upon receipt by the Trustee from the Seller
of notice of any prospective termination of the Trust
pursuant to Section 12.01(a)(iii) or (iv), the Trustee shall,
subject to the direction of the Majority Certificateholders
(provided that, if the Majority Certificateholders shall not
have provided such direction to the Trustee within 30 days
of the Trustee having sent a written request for such
direction to the Certificateholders, the Trustee shall
proceed without such direction) sell the remaining assets of
the Trust, if any, at public or private sale, in a
commercially reasonable manner and on commercially
reasonable terms. The Seller agrees to cooperate with the
Trustee to effect any such sale, including by executing such
instruments of conveyance or assignment as shall be
necessary or required by the purchaser. Proceeds of sale,
net of expenses, shall be treated as collections on the assets
of the Trust and shall be deposited into the Collection
Account. On the Distribution Date specified for final
payment, the Trustee shall cause to be distributed to
Certificateholders and the Seller amounts distributable on
such Distribution Date pursuant to Section 5.06 and Section
5.07.
Section 12.02. Optional Purchase of All Receivables. The
Seller shall have the option to purchase the corpus of the Trust on
the Distribution Date following the last day of any Collection
Period as of which the Pool Balance as a percentage of the
Original Pool Balance shall be less than or equal to the Optional
Purchase Percentage. To exercise such option, the Seller shall (i)
give notice to the Trustee and the Certificateholders not less than
30 days prior to the Distribution Date on which such purchase is
to be effected and (ii) on or before such Distribution Date, deposit
in the Collection Account an amount equal to the Purchase Amount
for the Receivables and the appraisal value of any other property
held by the Trust. After payment of such amounts, the Seller shall
succeed to all interests in and to the Trust Property.
Section 12.03. Notice. The Trustee shall give notice of
termination of the Trust to the Seller and each Rating Agency.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment. (a) This Agreement may be
amended by written instrument executed by the Seller, the Backup
Servicer and the Trustee, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, to correct or
supplement any provisions in this Agreement, (ii) to add, change
or eliminate any other provisions with respect to matters or
questions arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement; or (iii) to add
or amend any provision therein in connection with permitting
transfers of the Certificates or to add or provide for any credit
enhancement for the Certificates; provided, however, that any such
action described in clause (ii) shall not adversely affect in any
material respect the interests of the Certificateholders and
provided, further, that in connection with any such amendment
delivery to the Trustee of a letter from each Rating Agency to the
effect that such amendment will not cause the then-current rating
on the Rated Certificates to be qualified, reduced or withdrawn
shall constitute conclusive evidence that such amendment does not
adversely affect in any material respect the interests of the Class
A, Class B or Class C Certificateholders.
(b) This Agreement may also be amended from time to
time or the provisions hereof waived from time to time by a
written instrument executed by the Seller, the Backup Servicer and
the Trustee with the consent of the Holders of the
Certificateholders affected thereby (which consent of any Holder
of a Certificate given pursuant to this Section or pursuant to any
other provision of the Agreement shall be conclusive and binding
on such Holder and on all future Holders of such Certificate and
of any Certificate issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent
is made upon the Certificate) evidencing not less than 51% of the
Voting Interests of all the affected Certificates for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement, or of modifying in any
manner the rights of any Class of Certificateholders; provided,
however, that no such amendment or waiver shall, without the
consent of the Holders of all Certificates affected thereby then
outstanding, (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made on
any Certificate or (b) reduce the aforesaid percentage of the Voting
Interests of the Certificates required to consent to any such
amendment.
(c) Prior to any such amendment, the Trustee shall furnish
written notification of the substance of the proposed amendment to
each Rating Agency and each Rating Agency shall provide written
confirmation to the Trustee that such amendment will have no
adverse effect on the ratings assigned to the Rated Certificates.
Any amendment which affects the Trustee's own rights, duties or
immunities under the Agreement or otherwise shall not be effective
to such extent unless the Trustee shall have joined thereto.
(d) Promptly after the execution of any such amendment
or consent, the Trustee shall furnish a copy of such amendment or
consent to each Certificateholder and the Rating Agency. It shall
not be necessary for the consent of Certificateholders pursuant to
this Section 13.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such
consents (and any other consents of Certificateholders provided for
in this Agreement) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
(e) Prior to the execution of any amendment to this
Agreement, the Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement.
Section 13.02. Protection of Title to Trust.
(a) The Seller shall execute and file such
financing statements and cause to be executed and filed
such continuation statements, all in such manner and in
such places as may be required by law fully to preserve,
maintain and protect the interest of the Certificateholders
and the Trustee in the Receivables and the other assets of
the Trust Property and in the proceeds thereof. The Seller
shall deliver (or cause to be delivered) to the Trustee
file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such
filing.
(b) The Seller shall not change its name, identity
or corporate structure in any manner that would, could or
might make any financing statement or continuation
statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of SEC 9-402(7) of
the UCC, unless it shall have given the Trustee at least
thirty (30) days' prior written notice thereof and shall have
promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) The Seller shall give the Trustee at least 30
days' prior written notice of any relocation of its chief
executive office. If, as a result of such relocation, the
applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or
continuation statement or of any new financing statement,
it shall promptly file any such amendment and shall give
the amendment with the recorder's file stamp thereon to the
Custodian promptly upon receipt thereof.
Section 13.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an
accounting or to take any action or commence any proceeding in
any court for a partition or winding up of the Trust, nor otherwise
affect the rights, obligations and liabilities of the parties to this
Agreement or any of them.
Nothing in this Agreement set forth, or contained in the
terms of the Certificates, shall be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability
to any third Person by reason of any action taken pursuant to any
provision of this Agreement.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any
suit, action or proceeding in equity or at law upon or under or
with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a written notice of default and of
the continuance thereof, and unless also the Holders of Certificates
evidencing not less than 20% of the Voting Interests thereof shall
have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee under this
Agreement and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 30
days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and during such 30-day period no
request or waiver inconsistent with such written request has been
given to the Trustee pursuant to this Section or Section 10.04; no
one or more Holders shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of the Certificates, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to
enforce any right under this Agreement except in the manner
provided in this Agreement and for the equal, ratable and common
benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 13.03, each
Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 13.04. Governing Law. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD OR
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS OF
SUCH STATE.
Section 13.05. Notices. All demands, notices and
communications upon or to the Seller, the Backup Servicer, the
Trustee, or either Rating Agency under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return
receipt requested, and shall be deemed to have been duly given
upon receipt:
(a) in the case of the Seller, to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Aegis Auto Funding Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as shall be designated by the Seller
in a written notice to the Trustee;
(b) in the case of the Backup Servicer, to
Norwest Bank Minnesota, National
Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services--Asset
Backed Administration
or at such other address as shall be designated by the
Backup Servicer in a written notice to the Seller;
(c) in the case of the Trustee or Custodian, to
Norwest Bank Minnesota, National
Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services--Asset
Backed Administration
or at such other address as shall be designated by the
Trustee in a written notice to the Seller;
(d) in the case of the Rating Agencies, to
Duff & ▇▇▇▇▇▇ Credit Rating Co.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Finance
Research and Monitoring
Fitch Investors Service, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Any notice or other communication required or permitted
to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register (with copies thereof to such other Person(s)
as such Certificateholder shall have requested in writing, the
address of such other Person(s) to receive such copies also to be
reflected in the Certificate Register), and shall be deemed to have
been given upon receipt.
Section 13.06. Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 13.07. Assignment. Notwithstanding anything to
the contrary contained herein, except as provided in Sections 8.03,
this Agreement may not be assigned by the Seller without the prior
written consent of the Trustee and the Holders of Certificates
evidencing not less than 66% of the Voting Interests thereof.
Section 13.08. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of
the Trust. The interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust or for any
reason whatsoever.
Section 13.09. Counterparts. This Agreement may be
executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and all of
which counterparts shall constitute but one and the same
instrument.
Section 13.10. Limited Recourse to Seller. The parties
hereto agree that the obligations of the Seller hereunder, including,
without limitation, the obligation of the Seller in respect of
indemnification pursuant to Sections 3.06, 8.02 and 11.07 in
respect of repurchases or substitutions of Receivables upon breach
of representations and warranties pursuant to Section 3.02, and in
respect of fees, costs and expenses pursuant to Sections 3.06, 4.04
and 4.05, are payable solely from the Seller's interests in the Trust
Property and that no party may look to any other property or
assets of the Seller in respect of such obligations.
IN WITNESS WHEREOF, the Seller, the Backup Servicer
and the Trustee have caused this Pooling and Servicing Agreement
to be duly executed by their respective officers as of the day and
year first above written.
AEGIS AUTO FUNDING
CORP.,
as Seller
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
NORWEST BANK
MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By
▇▇▇▇▇▇▇ ▇▇▇▇▇
Corporate Trust Officer
NORWEST BANK
MINNESOTA, NATIONAL
ASSOCIATION, as Backup
Servicer
By
▇▇▇▇▇▇▇ ▇▇▇▇▇
Corporate Trust Officer
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"),OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE
UNITED STATES OR ANY FOREIGN SECURITIES LAWS.
BY ITS ACCEPTANCE OF THIS CERTIFICATE THE
HOLDER OF THIS CERTIFICATE IS DEEMED TO
REPRESENT TO THE SELLER AND THE TRUSTEE (i) THAT
IT IS AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D PROMULGATED UNDER
THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") AND THAT IT IS ACQUIRING THIS
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR
THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE
HOLDER IS A BANK ACTING IN ITS FIDUCIARY
CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, THE
PUBLIC DISTRIBUTION HEREOF OR (II) THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT AND IS
ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS
EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS
MADE TO THE SELLER, (ii) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT EXECUTES A
CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED
IN THE AGREEMENT, TO THE EFFECT THAT IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACTING FOR
ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS THE HOLDER IS A
BANK ACTING IN ITS FIDUCIARY CAPACITY), (iii) SO
LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO
A PERSON WHOM THE ISSUER REASONABLY BELIEVES
AFTER DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS
OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL
BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE,
PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (iv) SUCH SALE, PLEDGE OR OTHER
TRANSFER IS OTHERWISE MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, IN WHICH CASE (A) THE TRUSTEE
SHALL REQUIRE THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE TRUSTEE AND THE SELLER IN
WRITING THE FACTS SURROUNDING SUCH TRANSFER,
WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE
SELLER, AND (B) THE TRUSTEE SHALL REQUIRE A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE
AT THE EXPENSE OF THE SELLER OR THE TRUSTEE)
SATISFACTORY TO THE SELLER AND THE TRUSTEE TO
THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE
THE SECURITIES ACT. NO SALE, PLEDGE OR OTHER
TRANSFER MAY BE MADE TO ANY ONE PERSON FOR
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN
$250,000 AND, IN THE CASE OF ANY PERSON ACTING ON
BEHALF OF ONE OR MORE THIRD PARTIES (OTHER
THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE
SECURITIES ACT) ACTING IN ITS FIDUCIARY CAPACITY),
FOR CERTIFICATES WITH A FACE AMOUNT OF LESS
THAN $250,000 FOR EACH SUCH THIRD PARTY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
AEGIS AUTO RECEIVABLES TRUST 1996-3
AUTOMOBILE RECEIVABLE PASS-THROUGH
CERTIFICATES
CLASS A CERTIFICATE
PPN:
CUSIP:
NUMBER R-1
Original Certificate Balance:
Class A Rate
$_______________________
Final Scheduled Distribution Date: March 20, 2002
Initial Class A Certificate Balance of all Class A Certificates: $
THIS CERTIFIES THAT ___________________ is the
registered owner of this _________ DOLLARS Class A
Certificate. This Certificate evidences a fractional undivided
interest in the Aegis Auto Receivables Trust 1996-3 (the "Trust")
(excluding the Residual Interest in the Trust), formed by Aegis
Auto Funding Corp., a Delaware corporation (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement
dated as of September 1, 1996 (the "Agreement") among the
Seller, Norwest Bank Minnesota, National Association, as backup
servicer (the "Backup Servicer"), and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee"). The property of
the Trust includes, among other assets, a pool of motor vehicle
retail installment sale contracts secured by new and used
automobiles and light-duty trucks. (This Class A Certificate does
not represent an interest in or obligation of the Seller or any of the
respective Affiliates thereof, except to the extent described below.)
A summary of certain of the pertinent provisions of the Agreement
is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them
in the Agreement. The Certificate Balance of this Class A
Certificate will be decreased by the payments on this Class A
Certificate in respect of principal as described in the Agreement.
Accordingly, following the initial issuance of the Class A
Certificates, the Certificate Balance of this Class A Certificate will
over time be less than the original denomination shown above.
Anyone acquiring this Class A Certificate may ascertain its current
Certificate Balance by inquiry of the Trustee.
This Certificate is one of the duly authorized Certificates
designated as "Automobile Receivable Pass-Through Certificates,"
issued in three Classes (Class A, Class B and Class C,
collectively, the "Certificates"). To the extent described in the
Agreement the Class B and C Certificates are subordinate in
payment to the Class A Certificates and the Class C Certificates
are subordinate in payment to the Class A and Class B
Certificates. This Class A Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class A Certificate by
virtue of the acceptance hereof assents and by which such Holder
is bound. The property of the Trust includes, without limitation,
a pool of motor vehicle retail installment sale contracts (the
"Receivables") acquired on the Closing Date and on Funding Dates
(both as defined in the Agreement) secured by new and used
automobiles and light-duty trucks (the "Financed Vehicles"), all
moneys due thereunder after the applicable Cutoff Dates (as
defined in the Agreement), proceeds from claims on certain
insurance policies and certain other rights under the Agreement, all
right, title and interest of the Seller in and to the Purchase
Agreement and any and all proceeds of the foregoing.
This Class A Certificate does not purport to summarize the
Agreement and reference is made to the Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds
and duties evidenced hereby and the rights, duties and immunities
of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder, at its expense,
upon a written request to the Trustee.
Under the Agreement, there will be distributed on the 20th
day of each month or, if such 20th day is not a Business Day, the
next Business Day (the "Distribution Date"), commencing on
October 21, 1996, to the person in whose name this Class A
Certificate is registered at the close of business on the last day of
the Collection Period preceding a Distribution Date or termination
of the Trust (the "Record Date") an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the
amount, if any required to be distributed to the holders of all Class
A Certificates.
All payments to Certificateholders shall be made on each
Distribution Date to each Certificateholder of record on the related
Record Date by check, or, if requested by a Certificateholder
holding Certificates with Original Certificate Balances in aggregate
in excess of $1,000,000, by wire transfer to the account designated
in writing by such Holder in the form of Exhibit G to the
Agreement (or such other account as such Certificateholder may
designate in writing) delivered to the Trustee prior to the
Determination Date, in immediately available funds. Except as
otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Class A Certificate will be
made after due notice by the Trustee of the pendency of such
distribution, which notice shall request that the Certificateholder
present and surrender this Class A Certificate at the office or
agency maintained for that purpose by the Trustee in Minneapolis,
Minnesota. Surrender of this Class A Certificate shall not be a
condition of payment of the final distribution; however, the
Holder, by accepting this Class A Certificate, hereby agrees to
indemnify and hold harmless the Trustee, the Seller and the
Certificate Registrar from and against any and all claims arising
from such failure to present and surrender this Class A Certificate,
including but not limited to claims by third parties claiming to be
bona fide purchasers.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual
signature, this Class A Certificate shall not entitle the Holder
hereof to any benefit under the Agreement or be valid for any
purpose.
The Class A Certificates do not represent a recourse
obligation of, or an interest in, the Seller, the Backup Servicer, the
Trustee or any Affiliate of any of them. The Class A Certificates
are limited in right of payment to certain collections and recoveries
respecting the Receivables, all as more specifically set forth in the
Agreement. A copy of the Agreement may be examined during
normal business hours at the principal office of the Seller, and at
such other places, if any, designated by the Seller, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights
and obligations of the Seller and the rights of the Certificateholders
under the Agreement at any time by the Seller and the Trustee
with the consent of the Holders of the Certificates affected thereby
voting as a class evidencing not less than 51% of the Voting
Interests of all affected Certificates. Any such consent by the
Holder of this Class A Certificate shall be conclusive and binding
on such Holder and on all future Holders of this Class A
Certificate and of any Class A Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Class A Certificate.
The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any
of the Class A Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Class A Certificate
is registrable in the Certificate Register upon surrender of this
Class A Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Certificate
Registrar, or by any successor Certificate Registrar, in
Minneapolis, Minnesota, or such other office of the Trustee
maintained for such purpose and designated by the Trustee in
writing, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Class A Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class A
Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated
transferee.
The Class A Certificates are initially issuable only as
registered Class A Certificates without coupons in denominations
of $250,000 and integral multiples of $1,000 in excess thereof,
except that one Class A Certificate may be issued in a different
denomination. As provided in the Agreement and subject to
certain limitations set forth therein, Class A Certificates are
exchangeable for new Class A Certificates evidencing the same
aggregate denomination, as requested by the Holder surrendering
the same. No service charge will be made to the Holder for any
such registration of transfer or exchange, but the Trustee may
require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the
Trustee or the Certificate Registrar may treat the person in whose
name this Class A Certificate is registered as the owner hereof for
all purposes, and neither the Trustee, the Certificate Registrar, nor
any such agent shall be affected by any notice to the contrary.
The Trust created by the Agreement shall terminate upon
the earliest of (i) payment to the Certificateholders of all amounts
required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property, (ii)
March 20, 2002 or (iii) subject to the Agreement, 90 days after the
Dissolution of the Seller. The Seller may, at its option, purchase
the corpus of the Trust, in whole, at a price specified in the
Agreement, and such purchase will effect early retirement of the
Certificates; however, such right of purchase is exercisable only
on a Distribution Date following the last day of any Collection
Period as of which the Pool Balance is less than or equal to 5% of
the Original Pool Balance.
IN WITNESS WHEREOF, the Trustee, not in its
individual capacity but on behalf of the Trust, has caused this
Class A Certificate to be duly executed.
AEGIS AUTO
RECEIVABLES
TRUST 1996-3
By: NORWEST
BANK
MINNESOTA,
NATIONAL
ASSOCIATION, as
Trustee
By
Name:
Title:
This is one of the Class A Certificates referred to
in the within-mentioned Agreement.
NORWEST BANK
MINNESOTA,
NATIONAL
ASSOCIATION, as
Trustee
By
Name:
Title:
Dated as of
_________________, 199_
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address, including postal zip
code, of assignee)
the within Class A Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney
to transfer said Class A Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
Name:
_______________
*NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within Class A
Certificate in every particular, without alteration, enlargement or
any change whatever.
EXHIBIT A-2
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF
PAYMENT AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"),OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE
UNITED STATES OR ANY FOREIGN SECURITIES LAWS.
BY ITS ACCEPTANCE OF THIS CERTIFICATE THE
HOLDER OF THIS CERTIFICATE IS DEEMED TO
REPRESENT TO THE SELLER AND THE TRUSTEE (i) THAT
IT IS AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D PROMULGATED UNDER
THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") AND THAT IT IS ACQUIRING THIS
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR
THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE
HOLDER IS A BANK ACTING IN ITS FIDUCIARY
CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, THE
PUBLIC DISTRIBUTION HEREOF OR (II) THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT AND IS
ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS
EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS
MADE TO THE SELLER, (ii) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT EXECUTES A
CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED
IN THE AGREEMENT, TO THE EFFECT THAT IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACTING FOR
ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS THE HOLDER IS A
BANK ACTING IN ITS FIDUCIARY CAPACITY), (iii) SO
LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO
A PERSON WHOM THE ISSUER REASONABLY BELIEVES
AFTER DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS
OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL
BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE,
PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (iv) SUCH SALE, PLEDGE OR OTHER
TRANSFER IS OTHERWISE MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, IN WHICH CASE (A) THE TRUSTEE
SHALL REQUIRE THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE TRUSTEE AND THE SELLER IN
WRITING THE FACTS SURROUNDING SUCH TRANSFER,
WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE
SELLER, AND (B) THE TRUSTEE SHALL REQUIRE A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE
AT THE EXPENSE OF THE SELLER OR THE TRUSTEE)
SATISFACTORY TO THE SELLER AND THE TRUSTEE TO
THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE
THE SECURITIES ACT. NO SALE, PLEDGE OR OTHER
TRANSFER MAY BE MADE TO ANY ONE PERSON FOR
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN
$250,000 AND, IN THE CASE OF ANY PERSON ACTING ON
BEHALF OF ONE OR MORE THIRD PARTIES (OTHER
THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE
SECURITIES ACT) ACTING IN ITS FIDUCIARY CAPACITY),
FOR CERTIFICATES WITH A FACE AMOUNT OF LESS
THAN $250,000 FOR EACH SUCH THIRD PARTY.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR
TRANSFERRED TO ANY EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR A
PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED ("SECTION 4975")
(A "PLAIN") OR A PERSON THAT IS USING THE ASSETS
OF A PLAN TO ACQUIRE THIS CERTIFICATE.
ACCORDINGLY, TRANSFER OF THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE
AGREEMENT.
AEGIS AUTO RECEIVABLES TRUST 1996-3
AUTOMOBILE RECEIVABLE PASS-THROUGH
CERTIFICATES
CLASS B CERTIFICATE
PPN:
CUSIP:
NUMBER R-1
Original Certificate Balance:
Class B Rate
$_______________________
Final Scheduled Distribution Date: March 20, 2002
Initial Class B Certificate Balance of all Class B Certificates: $
THIS CERTIFIES THAT ___________________ is the
registered owner of this _________ DOLLARS Class B
Certificate. This Certificate evidences a fractional undivided
interest in the Aegis Auto Receivables Trust 1996-3 (the "Trust")
(excluding the Residual Interest in the Trust), formed by Aegis
Auto Funding Corp., a Delaware corporation (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement
dated as of September 1, 1996 (the "Agreement") among the
Seller, Norwest Bank Minnesota, National Association, as backup
servicer (the "Backup Servicer"), and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee"). The property of
the Trust includes, among other assets, a pool of motor vehicle
retail installment sale contracts secured by new and used
automobiles and light-duty trucks. (This Class B Certificate does
not represent an interest in or obligation of the Seller or any of the
respective Affiliates thereof, except to the extent described below.)
A summary of certain of the pertinent provisions of the Agreement
is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them
in the Agreement. The Certificate Balance of this Class B
Certificate will be decreased by the payments on this Class B
Certificate in respect of principal as described in the Agreement.
Accordingly, following the initial issuance of the Class B
Certificates, the Certificate Balance of this Class B Certificate will
over time be less than the original denomination shown above.
Anyone acquiring this Class B Certificate may ascertain its current
Certificate Balance by inquiry of the Trustee.
This Certificate is one of the duly authorized Certificates
designated as "Automobile Receivable Pass-Through Certificates",
issued in three Classes (Class A, Class B and Class C,
collectively, the "Certificates"). To the extent described in the
Agreement the Class B and C Certificates are subordinate in
payment to the Class A Certificates and the Class C Certificates
are subordinate in payment to the Class A and Class B
Certificates. This Class B Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class B Certificate by
virtue of the acceptance hereof assents and by which such Holder
is bound. The property of the Trust includes, without limitation,
a pool of motor vehicle retail installment sale contracts (the
"Receivables") acquired on the Closing Date and on Funding Dates
(both as defined in the Agreement) secured by new and used
automobiles and light-duty trucks (the "Financed Vehicles"), all
moneys due thereunder after the applicable Cutoff Dates (as
defined in the Agreement), proceeds from claims on certain
insurance policies and certain other rights under the Agreement, all
right, title and interest of the Seller in and to the Purchase
Agreement and any and all proceeds of the foregoing.
This Class B Certificate does not purport to summarize the
Agreement and reference is made to the Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds
and duties evidenced hereby and the rights, duties and immunities
of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder, at its expense,
upon a written request to the Trustee.
Under the Agreement, there will be distributed on the 20th
day of each month or, if such 20th day is not a Business Day, the
next Business Day (the "Distribution Date"), commencing on
October 21, 1996, to the person in whose name this Class B
Certificate is registered at the close of business on the last day of
the Collection Period preceding a Distribution Date or termination
of the Trust (the "Record Date") an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the
amount, if any required to be distributed to the holders of all Class
B Certificates.
All payments to Certificateholders shall be made on each
Distribution Date to each Certificateholder of record on the related
Record Date by check, or, if requested by a Certificateholder
holding Certificates with Original Certificate Balances in aggregate
in excess of $1,000,000, by wire transfer to the account designated
in writing by such Holder in the form of Exhibit G to the
Agreement (or such other account as such Certificateholder may
designate in writing) delivered to the Trustee prior to the
Determination Date, in immediately available funds. Except as
otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Class B Certificate will be
made after due notice by the Trustee of the pendency of such
distribution, which notice shall request that the Certificateholder
present and surrender this Class B Certificate at the office or
agency maintained for that purpose by the Trustee in Minneapolis,
Minnesota. Surrender of this Class B Certificate shall not be a
condition of payment of the final distribution; however, the
Holder, by accepting this Class B Certificate, hereby agrees to
indemnify and hold harmless the Trustee, the Seller and the
Certificate Registrar from and against any and all claims arising
from such failure to present and surrender this Class B Certificate,
including but not limited to claims by third parties claiming to be
bona fide purchasers.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual
signature, this Class B Certificate shall not entitle the Holder
hereof to any benefit under the Agreement or be valid for any
purpose.
The Class B Certificates do not represent a recourse
obligation of, or an interest in, the Seller, the Backup Servicer, the
Trustee or any Affiliate of any of them. The Class B Certificates
are limited in right of payment to certain collections and recoveries
respecting the Receivables, all as more specifically set forth in the
Agreement. A copy of the Agreement may be examined during
normal business hours at the principal office of the Seller, and at
such other places, if any, designated by the Seller, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights
and obligations of the Seller and the rights of the Certificateholders
under the Agreement at any time by the Seller and the Trustee
with the consent of the Holders of the Certificates affected thereby
voting as a class evidencing not less than 51% of the Voting
Interests of all affected Certificates. Any such consent by the
Holder of this Class B Certificate shall be conclusive and binding
on such Holder and on all future Holders of this Class B
Certificate and of any Class B Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Class B Certificate.
The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any
of the Class B Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Class B Certificate
is registrable in the Certificate Register upon surrender of this
Class B Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Certificate
Registrar, or by any successor Certificate Registrar, in
Minneapolis, Minnesota, or such other office of the Trustee
maintained for such purpose and designated by the Trustee in
writing, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Class B Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class B
Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated
transferee.
The Class B Certificates are initially issuable only as
registered Class B Certificates without coupons in denominations
of $250,000 and integral multiples of $1,000 in excess thereof,
except that one Class B Certificate may be issued in a different
denomination. As provided in the Agreement and subject to
certain limitations set forth therein, Class B Certificates are
exchangeable for new Class B Certificates evidencing the same
aggregate denomination, as requested by the Holder surrendering
the same. No service charge will be made to the Holder for any
such registration of transfer or exchange, but the Trustee may
require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the
Trustee or the Certificate Registrar may treat the person in whose
name this Class B Certificate is registered as the owner hereof for
all purposes, and neither the Trustee, the Certificate Registrar, nor
any such agent shall be affected by any notice to the contrary.
The Trust created by the Agreement shall terminate upon
the earliest of (i) payment to the Certificateholders of all amounts
required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property, (ii)
March 20, 2002 or (iii) subject to the Agreement, 90 days after the
Dissolution of the Seller. The Seller may, at its option, purchase
the corpus of the Trust, in whole, at a price specified in the
Agreement, and such purchase will effect early retirement of the
Certificates; however, such right of purchase is exercisable only
on a Distribution Date following the last day of any Collection
Period as of which the Pool Balance is less than or equal to 5% of
the Original Pool Balance.
IN WITNESS WHEREOF, the Trustee, not in its
individual capacity but on behalf of the Trust, has caused this
Class B Certificate to be duly executed.
AEGIS AUTO
RECEIVABLES
TRUST 1996-3
By: NORWEST
BANK
MINNESOTA,
NATIONAL
ASSOCIATION, as
Trustee
By
Name:
Title:
This is one of the Class B Certificates referred to
in the within-mentioned Agreement.
NORWEST BANK
MINNESOTA,
NATIONAL
ASSOCIATION, as
Trustee
By
Name:
Title:
Dated as of
______, 199_
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address, including postal zip
code, of assignee)
the within Class B Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney
to transfer said Class B Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
*
Name:
_______________
*NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within Class B
Certificate in every particular, without alteration, enlargement or
any change whatever.
EXHIBIT A-3-1
FORM OF CLASS C CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF
PAYMENT AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"),OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE IN THE
UNITED STATES OR ANY FOREIGN SECURITIES LAWS.
BY ITS ACCEPTANCE OF THIS CERTIFICATE THE
HOLDER OF THIS CERTIFICATE IS DEEMED TO
REPRESENT TO THE SELLER AND THE TRUSTEE (i) THAT
IT IS AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D PROMULGATED UNDER
THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") AND THAT IT IS ACQUIRING THIS
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR
THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS UNLESS THE
HOLDER IS A BANK ACTING IN ITS FIDUCIARY
CAPACITY) FOR INVESTMENT AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, THE
PUBLIC DISTRIBUTION HEREOF OR (II) THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT AND IS
ACQUIRING SUCH CERTIFICATE FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A
FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE BY ANY PERSON UNLESS
EITHER (i) SUCH SALE, PLEDGE OR OTHER TRANSFER IS
MADE TO THE SELLER, (ii) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT EXECUTES A
CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED
IN THE AGREEMENT, TO THE EFFECT THAT IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR ACTING FOR
ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE INSTITUTIONAL
ACCREDITED INVESTORS UNLESS THE HOLDER IS A
BANK ACTING IN ITS FIDUCIARY CAPACITY), (iii) SO
LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
SUCH SALE, PLEDGE OR OTHER TRANSFER IS MADE TO
A PERSON WHOM THE ISSUER REASONABLY BELIEVES
AFTER DUE INQUIRY IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS
OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS
(WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL
BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE,
PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (iv) SUCH SALE, PLEDGE OR OTHER
TRANSFER IS OTHERWISE MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, IN WHICH CASE (A) THE TRUSTEE
SHALL REQUIRE THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE TRANSFEREE
CERTIFY TO THE TRUSTEE AND THE SELLER IN
WRITING THE FACTS SURROUNDING SUCH TRANSFER,
WHICH CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE
SELLER, AND (B) THE TRUSTEE SHALL REQUIRE A
WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE
AT THE EXPENSE OF THE SELLER OR THE TRUSTEE)
SATISFACTORY TO THE SELLER AND THE TRUSTEE TO
THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE
THE SECURITIES ACT. NO SALE, PLEDGE OR OTHER
TRANSFER MAY BE MADE TO ANY ONE PERSON FOR
CERTIFICATES WITH A FACE AMOUNT OF LESS THAN
$250,000 AND, IN THE CASE OF ANY PERSON ACTING ON
BEHALF OF ONE OR MORE THIRD PARTIES (OTHER
THAN A BANK (AS DEFINED IN SECTION 3(a)(2) OF THE
SECURITIES ACT) ACTING IN ITS FIDUCIARY CAPACITY),
FOR CERTIFICATES WITH A FACE AMOUNT OF LESS
THAN $250,000 FOR EACH SUCH THIRD PARTY.
THIS CERTIFICATE MAY NOT BE PURCHASED BY
OR TRANSFERRED TO ANY EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR A
PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED ("SECTION 4975")
(A "PLAIN") OR A PERSON THAT IS USING THE ASSETS
OF A PLAN TO ACQUIRE THIS CERTIFICATE.
ACCORDINGLY, TRANSFER OF THIS CERTIFICATE IS
SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE
AGREEMENT.
AEGIS AUTO RECEIVABLES TRUST 1996-3
AUTOMOBILE RECEIVABLE PASS-THROUGH
CERTIFICATES
CLASS C CERTIFICATE
PPN:
CUSIP:
NUMBER R-1
Original Certificate Balance:
Class C Rate
$_______________________
Final Scheduled Distribution Date: March 20, 2002
Initial Class C Certificate Balance of all Class C Certificates: $
THIS CERTIFIES THAT ___________________ is the
registered owner of this _________ DOLLARS Class C
Certificate. This Certificate evidences a fractional undivided
interest in the Aegis Auto Receivables Trust 1996-3 (the "Trust")
(excluding the Residual Interest in the Trust), formed by Aegis
Auto Funding Corp., a Delaware corporation (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement
dated as of September 1, 1996 (the "Agreement") among the
Seller, Norwest Bank Minnesota, National Association, as backup
servicer (the "Backup Servicer"), and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee"). The property of
the Trust includes, among other assets, a pool of motor vehicle
retail installment sale contracts secured by new and used
automobiles and light-duty trucks. (This Class C Certificate does
not represent an interest in or obligation of the Seller or any of the
respective Affiliates thereof, except to the extent described below.)
A summary of certain of the pertinent provisions of the Agreement
is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them
in the Agreement. The Certificate Balance of this Class C
Certificate will be decreased by the payments on this Class C
Certificate in respect of principal as described in the Agreement.
Accordingly, following the initial issuance of the Class C
Certificates, the Certificate Balance of this Class C Certificate will
over time be less than the original denomination shown above.
Anyone acquiring this Class C Certificate may ascertain its current
Certificate Balance by inquiry of the Trustee.
This Certificate is one of the duly authorized Certificates
designated as "Automobile Receivable Pass-Through Certificates",
issued in three Classes (Class A, Class B and Class C,
collectively, the "Certificates"). To the extent described in the
Agreement the Class B and C Certificates are subordinate in
payment to the Class A Certificates and the Class C Certificates
are subordinate in payment to the Class A and Class B
Certificates. This Class C Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class C Certificate by
virtue of the acceptance hereof assents and by which such Holder
is bound. The property of the Trust includes, without limitation,
a pool of motor vehicle retail installment sale contracts (the
"Receivables") acquired on the Closing Date and on Funding Dates
(both as defined in the Agreement) secured by new and used
automobiles and light-duty trucks (the "Financed Vehicles"), all
moneys due thereunder after the applicable Cutoff Dates (as
defined in the Agreement), proceeds from claims on certain
insurance policies and certain other rights under the Agreement, all
right, title and interest of the Seller in and to the Purchase
Agreement and any and all proceeds of the foregoing.
This Class C Certificate does not purport to summarize the
Agreement and reference is made to the Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds
and duties evidenced hereby and the rights, duties and immunities
of the Trustee. Copies of the Agreement and all amendments
thereto will be provided to any Certificateholder, at its expense,
upon a written request to the Trustee.
Under the Agreement, there will be distributed on the 20th
day of each month or, if such 20th day is not a Business Day, the
next Business Day (the "Distribution Date"), commencing on
October 21, 1996, to the person in whose name this Class C
Certificate is registered at the close of business on the last day of
the Collection Period preceding a Distribution Date or termination
of the Trust (the "Record Date") an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the
amount, if any required to be distributed to the holders of all Class
C Certificates.
All payments to Certificateholders shall be made on each
Distribution Date to each Certificateholder of record on the related
Record Date by check, or, if requested by a Certificateholder
holding Certificates with Original Certificate Balances in aggregate
in excess of $1,000,000, by wire transfer to the account designated
in writing by such Holder in the form of Exhibit G to the
Agreement (or such other account as such Certificateholder may
designate in writing) delivered to the Trustee prior to the
Determination Date, in immediately available funds. Except as
otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Class C Certificate will be
made after due notice by the Trustee of the pendency of such
distribution, which notice shall request that the Certificateholder
present and surrender this Class C Certificate at the office or
agency maintained for that purpose by the Trustee in Minneapolis,
Minnesota. Surrender of this Class C Certificate shall not be a
condition of payment of the final distribution; however, the
Holder, by accepting this Class C Certificate, hereby agrees to
indemnify and hold harmless the Trustee, the Seller and the
Certificate Registrar from and against any and all claims arising
from such failure to present and surrender this Class C Certificate,
including but not limited to claims by third parties claiming to be
bona fide purchasers.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Trustee, by manual
signature, this Class C Certificate shall not entitle the Holder
hereof to any benefit under the Agreement or be valid for any
purpose.
The Class C Certificates do not represent a recourse
obligation of, or an interest in, the Seller, the Backup Servicer, the
Trustee or any Affiliate of any of them. The Class C Certificates
are limited in right of payment to certain collections and recoveries
respecting the Receivables, all as more specifically set forth in the
Agreement. A copy of the Agreement may be examined during
normal business hours at the principal office of the Seller, and at
such other places, if any, designated by the Seller, by any
Certificateholder upon request.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights
and obligations of the Seller and the rights of the Certificateholders
under the Agreement at any time by the Seller and the Trustee
with the consent of the Holders of the Certificates affected there
by voting as a class evidencing not less than 51% of the Voting
Interests of all affected Certificates. Any such consent by the
Holder of this Class C Certificate shall be conclusive and binding
on such Holder and on all future Holders of this Class C
Certificate and of any Class C Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Class C Certificate.
The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any
of the Class C Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Class C Certificate
is registrable in the Certificate Register upon surrender of this
Class C Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Certificate
Registrar, or by any successor Certificate Registrar, in
Minneapolis, Minnesota, or such other office of the Trustee
maintained for such purpose and designated by the Trustee in
writing, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Class C Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Class C
Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated
transferee.
The Class C Certificates are initially issuable only as
registered Class C Certificates without coupons in denominations
of $250,000 and integral multiples of $1,000 in excess thereof,
except that one Class C Certificate may be issued in a different
denomination. As provided in the Agreement and subject to
certain limitations set forth therein, Class C Certificates are
exchangeable for new Class C Certificates evidencing the same
aggregate denomination, as requested by the Holder surrendering
the same. No service charge will be made to the Holder for any
such registration of transfer or exchange, but the Trustee may
require payment of a sum sufficient to cover any tax or
governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar, and any agent of the
Trustee or the Certificate Registrar may treat the person in whose
name this Class C Certificate is registered as the owner hereof for
all purposes, and neither the Trustee, the Certificate Registrar, nor
any such agent shall be affected by any notice to the contrary.
The Trust created by the Agreement shall terminate upon
the earliest of (i) payment to the Certificateholders of all amounts
required to be paid to them pursuant to the Agreement and the
disposition of all property held as part of the Trust Property, (ii)
March 20, 2002 or (iii) subject to the Agreement, 90 days after the
Dissolution of the Seller. The Seller may, at its option, purchase
the corpus of the Trust, in whole, at a price specified in the
Agreement, and such purchase will effect early retirement of the
Certificates; however, such right of purchase is exercisable only
on a Distribution Date following the last day of any Collection
Period as of which the Pool Balance is less than or equal to 5% of
the Original Pool Balance.
IN WITNESS WHEREOF, the Trustee, not in its
individual capacity but on behalf of the Trust, has caused this
Class C Certificate to be duly executed.
AEGIS AUTO
RECEIVABLES
TRUST 1996-3
By: NORWEST
BANK
MINNESOTA,
NATIONAL
ASSOCIATION, as
Trustee
By
Name:
Title:
This is one of the Class C Certificates referred to
in the within-mentioned Agreement.
NORWEST BANK
MINNESOTA,
NATIONAL
ASSOCIATION, as
Trustee
By
Name:
Title:
Dated as of
____________, 199_
EXHIBIT B
DEPOSITORY AGREEMENT
EXHIBIT C
TRUSTEE'S STATEMENT TO CERTIFICATEHOLDERS
Aegis Auto Receivables Trust 1996-3
Automobile Receivable Pass-Through Certificates
Distribution Date:
Last Day of Collection Period:
I. COLLECTIONS INTEREST PRINCIPAL
TOTALS
Scheduled Payments
Full & Partial Prepayments
Recoveries
Risk Default Insurance Proceeds
Receivable Repurchased by Seller
Miscellaneous Servicer Collections
Available Interest Distribution Amount
Available Principal Distribution Amount
Total Available Distribution Amount
Reinvestment Income on Collection Account
Withdrawals from
Reserve Fund
Total Amount Available
II. DISTRIBUTIONS
Backup Servicer Fee
Servicing Fee
Trustee and Custodian Fees
Allocation of Expenses by Class
Class A
Class B
Class C
Class A Interest Distribution
Class A Interest Carryover Shortfall
Class A Principal Distribution
Class A Principal Carryover Shortfall
Class B Interest Distribution
Class B Interest Carryover Shortfall
Class B Principal Distribution
Class B Principal Carryover Shortfall
Class C Interest Distribution
Class C Interest Carryover Shortfall
Class C Principal Distribution
Class C Principal Carryover Shortfall
Funding Account-Prepayment Distribution
Deposits to Reserve Fund
Releases to Seller
Total Funds Distributed
III. CLASS CERTIFICATE BALANCE
Original Class A Certificate Balance
Beginning Class A Certificate Balance
Ending Class A Certificate Balance
Class A Interest Carryover Shortfall
Class A Principal Carryover Shortfall
Class A Certificate Factor
Original Class B Certificate Balance
Beginning Class B Certificate Balance
Ending Class B Certificate Balance
Class B Interest Carryover Shortfall
Class B Principal Carryover Shortfall
Class B Certificate Factor
Original Class C Certificate Balance
Beginning Class C Certificate Balance
Ending Class C Certificate Balance
Class C Interest Carryover Shortfall
Class C Principal Carryover Shortfall
Class C Certificate Factor
IV. POOL BALANCE INFORMATION
Original Pool Balance:
Beginning of Period
End of Period
Pool Balance
Pool Factor
Weighted Average Coupon (WAC)
Weighted Average Remaining Maturity (WAM) (in months)
Remaining Number of Receivables
V. RESERVE FUND
Amount
Beginning Balance
Plus: Deposits
Plus: Reinvestment Income
Withdrawals to Certificateholders
Class A
Class B
Class C
Withdrawals for expenses
Released to Seller
Ending Balance
VI. RECEIVABLES REPURCHASED/SUBSTITUTED BY SELLER
Number of Receivables Repurchased
Principal Amount
Number of Receivables Substituted
Principal Amount
VII. DELINQUENCY INFORMATION*
# of Principal % of
Contracts Balance Pool
Balance
30-59 Days Delinquent
60-90 days Delinquent
90 Days or more Delinquent
*Excluding Liquidated and Defaulted Receivables
VIII. REPOSSESSION INFORMATION Current Period
Cumulative
Number of Receivables as to which Vehicles have been
Repossessed (and not yet liquidated)
Principal Balances of Receivables relating to Vehicles
which have been Repossessed (and not yet liquidated)
IX. LIQUIDATED AND DEFAULTED RECEIVABLES Current Period
Cumulative
Number of Liquidated Receivables
Principal Balances of Liquidated Receivables*
(Prior to Liquidation)
Number of Defaulted Receivables**
Principal Balances of Defaulted Receivables
Total Principal Balance of Liquidated
and Defaulted Receivables
* Excludes receivables previously characterized
as Defaulted Receivables
**Refers to Receivables that have become
180 days delinquent and are not Liquidated Receivables
X. RECOVERIES Current Period
Cumulative
Liquidation Proceeds
Rebate of Servicer Cancelled Warranty Contracts
VSI Physical Damage/Loss Insurance Proceeds
Consumer Insurance
Total Recoveries
XI. RETENTION AMOUNT
Beginning Balance
Plus: (Additional Receivables)
Plus: Quarterly Reserve Loss Deficiency
Less: Claims approved
Less: Quarterly Reserve Loss Surplus
Ending Balance
XII. RISK DEFAULT INSURANCE PROCEEDS Current Period
Cumulative
Risk Default Insurance Proceeds
XIII. NET LOSSES Current Period
Cumulative
Principal Balance of Liquidated and
Defaulted Receivables
Less: Recoveries
Less: Risk Default Insurance Proceeds
Net Losses
XIV. INSURANCE CLAIMS
Current Period
Cumulative
Number of Risk Default Insurance Claims
Amount of Risk Default Insurance Claims
Number of VSI Physical Damage/Loss Insurance Claims
Amount of VSI Physical Damage/Loss Insurance Claims
Number of Risk Default Insurance Claims Rejected
Principal Balance of Receivables Rejected
XV. FUNDING ACCOUNT
Beginning Balance
Withdrawals (Additional Receivables)
Withdrawals (Reserve Fund)
Reinvestment Income Retained
Ending Balance
EXHIBIT D
SCHEDULE OF RECEIVABLES
Delivered to the Trustee on the Closing Date
(This Schedule shall be deemed to be amended on each Funding Date to add
Additional Receivables and shall be deemed to be amended to account for any
substitution of Receivables permitted by the Agreement upon the
occurrence of any such substitution.)
(See Attached)
EXHIBIT E
LOCATION OF SERVICER FILES
American Lenders Facilities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT F-1
Aegis Auto Receivables Trust 1996-3
AUTO RECEIVABLES PASS-THROUGH CERTIFICATES
RECEIVABLE CHARACTERISTICS
As of September 1, 1996 (Cutoff Date)
Remaining Term % Outstanding
Outstanding
To Maturity Principal Balance
Principal Balance
19-24 0.00%
$ 0.00
25-30 0.00%
4,037.33
31-36 2.24%
2,301,363.07
37-42 7.08%
7,242,519.02
43-48 18.98%
19,411,239.22
49-54 28.17%
28,814,963.20
55-60 43.53%
44,516,414.56
Weighted Average Remaining Term to Maturity 53.58 months
Annual Percentage Rate
Weighted Average Annual Percentage Rate 20.23%
% Outstanding
Outstanding
Model Year Principal Balance
Principal Balance
1991 2.29%
$ 2,342,988.93
1992 7.04%
7,196,580.94
1993 18.88%
19,308,420.59
1994 28.29%
28,940,415.41
1995 34.40%
35,187,437.73
1996 8.87%
9,075,934.78
1997 0.23%
238,758.02
% Outstanding
Outstanding
New/Used Collateral Principal Balance
Principal Balance
New 6.15%
$ 6,293,212.88
Used 93.85%
95,997,323.52
Outstanding
Principal Balance
Largest $34,659.46
Smallest 1,121.37
Average 12,263.50
EXHIBIT F-2
RECEIVABLE CHARACTERISTICS (FUNDING DATE)
(This Exhibit F-2 shall take substantially the same form as
Exhibit F-1 except shall be dated the Cutoff Date
for the applicable Funding Date.)
EXHIBIT G
WIRING INSTRUCTIONS FORM
______________, 19____
Norwest Bank Minnesota, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Automobile Receivable Pass-Through Certificates
Class ___ Issued by Aegis Automobile Receivables
Trust 1996-3
Dear Sirs:
In connection with the sale of the above-captioned Certificate by
to
("Transferee") you, as Trustee with respect to the related Certificates, are
instructed to make all remittances to Transferee as Certificateholder as of
, 19 and you are directed to send all notices to the appropriate
party at the address set forth on Schedule 1 hereto. You are further
instructed to treat the Transferee as the record holder for purposes of the
, 199__ Distribution Date.
[Transferee]
By
Title:
Acknowledged
[Seller]
By
Title:
EXHIBIT H
FEE SCHEDULE
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
CORPORATE TRUST DEPARTMENT
SCHEDULE OF FEES
AEGIS AUTO RECEIVABLES TRUST 1996-3
I. Trustee and Custodian Fee:
one-twelfth of the product of (i) 0.03% per annum and (ii) the
aggregate Class Certificate Balance as of the close of business on
the preceding Distribution Date or, in the case of the first
Distribution Date, the original aggregate Class Certificate Balance.
II. Monthly Backup Servicer Fee:
one-twelfth of the product of (i) 0.02% per annum and (ii) the
outstanding Pool Balance as of the first day of the preceding
Collection Period or, in the case of the first Distribution Date, as
of the Closing Date.
EXHIBIT I
RISK DEFAULT INSURANCE POLICY
Issuer: The Connecticut Indemnity Company
Policy Name: Secured Value Insurance Policy
Policy No.: ZSC __________
Date: September , 1996
Named Insured: Norwest Bank Minnesota, N.A., as Trustee for Aegis Receivables
Trust 1996-3
Endorsements: Exhibit A, Ed. 8/30/95 & Exhibit B, Ed. 11/7/95
and Exhibit C
EXHIBIT J
VSI INSURANCE POLICY
1. Issuer: Guaranty National Insurance Company
Policy Name: Lenders Comprehensive Single Interest Insurance Policy
Policy No.: ZYG 1500103
Date: February 1, 1994
Named Insured: Aegis Capital Markets
Endorsements: 42621-0 (10/93), 42623-0 (10/93), 42624-0 (10/93),
42627-0 (10/93), 42629-0 (10/93), 42630-0 (10/93),
41510-0 (6/90), Nos. 7, 8, Coverage Endorsements dated
3/23/94,
9/08/94 and 9/26/94, Nos. 16-24, 30-31
EXHIBIT K
FORM OF TRANSFEREE LETTER
(Rule 144A Transfer)
[Date]
Aegis Auto Funding Corp.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Norwest Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services Asset Backed Administration
Aegis Auto Receivables Trust 1996-3
Automobile Receivable Pass-Through Certificates, Class
___
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase one or
more Automobile Receivable Pass-Through Certificates, Class ___ (the
"Certificates") issued by Aegis Auto Receivables Trust 1996-3 (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated
as of September 1, 1996 (the "Pooling and Servicing Agreement") by and
among Aegis Auto Funding Corp., a Delaware corporation, as seller
("Seller"), Norwest Bank Minnesota, National Association, as Backup
Servicer, and Norwest Bank Minnesota, National Association, as Trustee.
Unless the context or use indicates another or different meaning, each
capitalized term used herein and not otherwise defined herein shall have
the meaning ascribed to it in the Pooling and Servicing Agreement.
1. The undersigned hereby certifies that, as indicated below,
the undersigned is the President, Chief Executive/Financial Officer, Senior
Vice President or other executive officer or investment officer of the
Purchaser.
2. In connection with the purchase by the Purchaser of the
Certificates, the undersigned hereby certifies to you that the Purchaser is
a "qualified institutional buyer" as defined in Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as amended, because:
[ ] (a) The Purchaser owned or invested on a discretionary basis $100
million in securities (except for the excluded securities referred to
below) as of the end of the Purchaser's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and
the Purchaser satisfies the criteria in the subcategory marked below
(check one):
[ ] Insurance Company. The Purchaser is an insurance
company whose primary and predominant business activity
is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a similar
official or agency of a State or territory or the District of
Columbia.
[ ] Investment Company. The Purchaser is (i) an investment
company registered under the Investment Company Act of
1940, as amended (the "Investment Company Act") or (ii)
a business development company as defined in Section
2(a)(48) of that Act.
[ ] Small Business Investment Company. The Purchaser is a
Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958.
[ ] Corporation, Etc. The Purchaser is an organization
described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, a corporation (other than a
bank, savings and loan association or similar institution),
partnership or Massachusetts or similar business trust.
[ ] State or Local Plan. The Purchaser is a plan established
and maintained by a State or its political subdivisions, or
any agency or instrumentality of a State or its political
subdivisions, for the benefit of its employees.
[ ] ERISA Plan. The Purchaser is an employee benefit plan
within the meaning of Title I of the Employee Retirement
Income Security Act of 1974.
[ ] Trust Fund. The Purchaser is a trust fund whose trustee is
a bank or trust company and whose participants are
exclusively plans established and maintained by a State or
its political subdivision, or any agency or instrumentality
of a State or its political subdivisions, for the benefit of its
employees.
[ ] Business Development Company. The Purchaser is a
business development company as defined in Section
202(a)(22) of the Investment Adviser Act of 1940.
[ ] Investment Advisor. The Purchaser is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
[ ] (b) The Purchaser is a dealer registered pursuant too Section 15
of the Exchange Act, acting for its own account or the accounts of
other qualified institutional buyers, that in the aggregate owns and
invests on a discretionary basis at least $10 million of securities of
issuers that are not affiliated with the dealer, provided that
securities constituting the whole or a part of an unsold allotment
to or subscription by a dealer as a participant in a public offering
shall not be deemed to be owned such dealer.
[ ] (c) The Purchaser is a dealer registered pursuant to Section 15 of
the Exchange Act acting in a riskless principal transaction on
behalf of a qualified institutional buyer.
[ ] (d) The Purchaser is an investment company registered under the
Investment Company Act, acting for its own account or for the
accounts of other qualified institutional buyers, that is part of a
family of investment companies which own in the aggregate at
least $100 million in securities of issuers other than issuers that are
affiliated with the investment company or are part of such family
of investment companies. "Family of investment companies"
means any two or more investment companies registered under the
Investment Company Act, except for a unit investment trust whose
assets consist solely of shares of one or more registered investment
companies, that have the same investment adviser (or, in the case
of unit investment trusts, the same depositor), provided that, for
purposes of this section:
(A) each series of a series company (as defined in Rule
18f-2 under the Investment Company Act (17 CFR
270.18f-2)) shall be deemed to be a separate investment
company; and
(B) investment companies shall be deemed to have the
same adviser (or depositor) if their advisers (or depositors)
are majority-owned subsidiaries of the same parent, or if
on investment company's adviser (or depositor) is a
majority-owned subsidiary of the other investment
company's adviser (or depositor).
[ ] (e) The Purchaser is an entity, all of the equity owners of which
are qualified institutional buyers, acting for its own account or the
accounts of other qualified institutional buyers.
[ ] (f) The Purchaser is a bank as defined in Section 3(a)(2) of the
Act, any savings and loan association or other institution as
referenced in Section 3(a)(5)(A) of the Act, or any foreign bank or
savings and loan association or equivalent institution, acting for its
own account or the accounts of other qualified institutional buyers,
that in the aggregate owns and invests on a discretionary basis at
least $100 million in securities of issuers that are not affiliated
with it and that has an audited net worth of at least $25 million ad
demonstrated in its latest annual financial statements, as of a date
not more than 16 months preceding the date of sale under the Rule
in the case of a U.S. bank or savings and loan association, and not
more than 18 months preceding such date of sale for a foreign
bank or savings and loan association or equivalent institution.
The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Purchaser, (ii) securities that are part
of an unsold allotment to or subscription by the Purchaser (if the
Purchaser is a dealer), (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
For purposes of determining the aggregate amount of securities
owned or invested on a discretionary basis by the Purchaser, the
Purchaser used the cost of such securities to the Purchaser and did not
include any of the securities referred to in the preceding paragraph.
Further, in determining such aggregate amount, the Purchaser may
have included securities owned by subsidiaries of the Purchaser, but only
if such subsidiaries are consolidated with the Purchaser in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
the Purchaser's direction. However, such securities were not included if
the Purchaser is a majority-owned, consolidated subsidiary of another
enterprise and the Purchaser is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
3. The Purchaser certifies and acknowledges that it is familiar
with Rule 144A and understands that you and your customers (if you act
as a broker for one or more customers) are relying on the statements made
therein.
4. The Purchaser certifies that the Purchaser is purchasing the
Certificates in the capacity marked below (check one):
[ ] The Purchaser certifies that the Purchaser is purchasing the
Certificates for its own account only; or
[ ] The Purchaser certifies that the Purchaser is purchasing the
Certificates for the account of [one] [specify number:] other
qualified institutional buyer(s), [each of] which is a "qualified
institutional buyer." (Draw a line through inapplicable words and
brackets.)
5. The Purchaser certifies that, to the extent it has requested
same, it has received from the Seller the information that satisfies the
requirements of paragraph (d)(4) of Rule 144A (the "Rule 144A
Information").
6. The Purchaser certifies that it will comply with all
applicable federal and state securities laws in connection with any
subsequent resale by the Purchaser of the Certificates. The Purchaser
acknowledges that no Certificates may be exchanged for any new
Certificates having an initial principal balance of less than $250,000.
7. The Purchaser understands and acknowledges that the
Certificates have not been and will not be registered under the Securities
Act of 1933, as amended, or any state securities laws and may be resold
only if (a) the Certificates are registered pursuant to the provisions of the
Securities Act of 1933, as amended, and such state securities laws, or (b)
if an exemption from such registration is available. The Purchaser
understands and acknowledges that the Seller is not required to register the
Certificates and that any transfer must comply with Section 7.03 of the
Agreement. The Trustee is not obligated to provide Rule 144A
Information.
8. The Purchaser understands that there is no market, nor is
there any assurance that a market will develop, for the Certificates and
that the Seller does not have any obligation to make or facilitate any such
market (or to otherwise repurchase the Certificates from the Purchaser)
under any circumstances.
9. The Purchaser has consulted with its own legal counsel,
independent accountants and financial advisors to the extent it deems
necessary regarding the tax consequences to it of ownership of the
Certificates, is aware that its taxable income with respect to the
Certificates in any accounting period may not correspond to the cash flow
(if any) from the Certificates for such period, and is not purchasing the
Certificates in reliance on any representations of the Seller or its counsel
with respect to tax matters.
10. The Purchaser has reviewed the Offering Memorandum (the
"Memorandum") dated September 12, 1996 with respect to the
Certificates, and the agreements and other materials referred to therein,
and has had the opportunity to ask questions and receive answers
concerning the terms and conditions of the transactions contemplated by
the Memorandum and to obtain additional information necessary to verify
the accuracy and completeness of any information furnished to the
Purchaser or to which the Purchaser had access.
11. The Purchaser hereby further agrees to be bound by all the
terms and conditions of the Certificates as provided in the Pooling and
Servicing Agreement.
12. If the Purchaser sells any of the Certificates, the Purchaser
will obtain from any subsequent purchaser the same representations
contained in this Letter.
Very truly yours,
[PURCHASER]
By
Name
Title
EXHIBIT L
FORM OF TRANSFEREE LETTER
(Non-Rule 144A Transfer)
[Date]
Aegis Auto Funding Corp.
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Norwest Bank Minnesota, National Association
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Attention: Corporate Trust Services Asset Backed Administration
Aegis Auto Receivables Trust 1996-3
Automobile Receivable Pass-Through Certificates, Class
___
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase certain
Automobile Receivable Certificates, Class ____ (the "Certificates") issued
by Aegis Auto Receivables Trust 1996-3 (the "Trust) pursuant to a
Pooling and Servicing Agreement dated as of September 1, 1996 (the
"Pooling and Servicing Agreement"), among Aegis Auto Funding Corp.,
as Seller, Norwest Bank Minnesota, National Association, as Backup
Servicer, and Norwest Bank Minnesota, National Association as Trustee.
Unless the context or use indicates another or different meaning, each
capitalized term used herein and not otherwise defined herein shall have
the meaning ascribed to it in the Pooling and Servicing Agreement.
The Purchaser represents and warrants that:
(a) Information. The Purchaser acknowledges that it has been
furnished, received and reviewed a copy of the Offering Memorandum
dated September 12, 1996 describing the Certificates and material related
matters (the "Private Offering Memorandum") and has made such
investigation as the Purchaser deems necessary to evaluate the merits and
risks involved with an investment in the Certificates, and has had an
opportunity to meet with officers and employees of the Seller and to ask
questions and receive answers regarding an investment in the Certificates
and has asked any question he desired to ask and has received answers
with respect to such questions to the full satisfaction of the Purchaser and
has relied exclusively on the information set forth in the Private Offering
Memorandum and information discussed at such meeting. The Purchaser
acknowledges that the Private Offering Memorandum supersedes any and
all other written materials relating to an investment in the Certificates
which may have been previously delivered to the Purchaser and the
Purchaser has not relied in any manner on such materials. No oral
representations have been made or oral information furnished to the
Purchaser in connection with the offering of the Certificates which were
in any way inconsistent with the Private Offering Memorandum. The
Purchaser also acknowledges that there are certain risks associated with
the purchase of the Certificates and that the Purchaser has reviewed the
information in the Private Placement Memorandum under the heading
"Special Considerations."
(b) No Reliance on Other Purchasers. In making its investment
decision with respect to subscribing for the Certificates, the Purchaser has
not relied upon any statement, representation or advice of any other
Purchaser of the Certificates.
(c) Purchase for Investment. The Purchaser is purchasing the
Certificates without a view to any distribution, assignment, resale or other
disposition of the Certificates in any manner which would violate the
Securities Act of 1933, as amended (the "Securities Act"), or applicable
state securities or "Blue Sky" laws, subject, nevertheless, to the
understanding that the disposition of the Purchaser's property shall at all
times be and remain within the Purchaser's control, and the Certificates
are being purchased solely for the Purchaser's own account for investment
purposes only and not for the account of any other person.
(d) Institutional Accredited Investor. The Purchaser is an
institutional "accredited investor" as defined in Rule 501 under the
Securities Act as follows (check one):
( ) A bank as defined in Section 3(a)(2) of the
Securities Act, whether acting in its individual or fiduciary
capacity;
( ) A savings and loan association or other institution
as defined in Section 3(a)(5)(A) of the Securities Act, whether
acting in its individual or fiduciary capacity;
( ) A broker or dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934;
( ) An insurance company as defined in Section 2(13)
of the Securities Act;
( ) An investment company registered under the
Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of that Act;
( ) A Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958;
( ) An employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974
("ERISA"), if the investment decision is made by a plan fiduciary
(as defined in Section 3(21) of ERISA) which is a bank, savings
and loan association, insurance company or registered investment
advisor, or if the plan has total assets in excess of $5,000,000 or,
if a self-directed plan, with investment decisions made solely by
accredited investors;
( ) A plan established or maintained by a state, its
political subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees, if
such plan has total assets in excess of $5,000,000;
( ) A private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940;
( ) An organization described in Section 501(c)(3) of
the Internal Revenue Code, corporation, Massachusetts or similar
business trust or partnership, not formed for the specific purpose
of acquiring the securities offered, with total assets in excess of
$5,000,000;
( ) A trust, with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a person having such
knowledge and experience in financial and business matters to be
capable of evaluating the merits and risks of an investment in the
Certificates; or
( ) An entity in which all of the equity owners fall
within one of the foregoing categories of "accredited investors."
(e) Exempt Offering. The Purchaser understands that the
Certificates are not being registered under the Securities Act or any state
securities or "Blue Sky" laws and are being sold in reliance on exemptions
from the registration requirements of the Securities Act and any such laws
for non-public offerings. The Purchaser understands that the exemptions
from the registration requirements under state securities laws upon which
the Certificates is relying require that the Purchaser be one of the types
of investors specified in subsection (d) above under the applicable state
securities law and the Purchaser is such an investor. The Purchaser
further understands that the Certificates must be held indefinitely unless
subsequently registered under the Securities Act, any applicable state
securities or "Blue Sky" laws or unless exemptions from the registration
requirements of the Securities Act and such laws are available. The
Purchaser represents, warrants and agrees that, if at some future time the
Purchaser wishes to dispose of or exchange any of the Certificates, the
Purchaser will not do so unless before any such sale, transfer or other
disposition the Purchaser shall have furnished to the Trustee either (a) a
certificate of the transferee that the transferee is a "qualified institutional
buyer" within the meaning of Rule 144A promulgated pursuant to the
Securities Act or (b) a certificate of the transferee that the transferee is an
institutional "accredited investor" as defined in Rule 501(a) of the
Securities Act and, in the case of (b) only, an opinion of counsel
satisfactory in form and substance to the Trustee and the transferor, to the
effect that the sale, transfer or other disposition of such Certificate has
been registered under the Securities Act, or that such sale, transfer or
other disposition does not require registration under the Securities Act.
(f) Legal Investment. The Purchaser understands that there
may be restrictions on the ability of certain investors, including, without
limitation, depository institutions, either to purchase the Certificates or to
purchase investments having characteristics similar to those of the
Certificates representing more than a specified percentage of the investor's
assets, and the Purchaser further represents and warrants that it has
consulted, and relied on the advice of, its own legal advisor in
determining whether and to what extent the Certificates constitute a legal
investment for the Purchaser.
(g) The Purchaser (i) has no need for liquidity with respect to
the Certificates, (ii) is able to bear the economic risks of an investment
in the Certificates for an indefinite period and (iii) is able to afford a
complete loss of such investment. The Purchaser has such knowledge and
experience in financial and business matters to use the information made
available in connection with the offering of the Certificates, to evaluate the
merits and risks of the prospective investment in the Certificates and to
make an informed business decision with respect thereto. The Purchaser
understands that the Seller will rely upon the information supplied by the
Purchaser pursuant to this Agreement in order to verify this representation
and warranty and represents that such information is true and correct in
all respects. The Purchaser understands that a false representation may
constitute a violation of law, that any person which suffers damage as a
result of a false representation may have a claim against the undersigned
for damages for which the undersigned will indemnify the Seller and its
affiliates pursuant to the terms of this Agreement.
(h) The Purchaser recognizes that an investment in the
Certificates involves significant risks including those risks which are set
forth under the caption "SPECIAL CONSIDERATIONS" in the Private
Offering Memorandum.
(i) The Purchaser understands that the Private Offering
Memorandum has not been filed with or reviewed by any state securities
administrators because of the representations made by the Seller as to the
private or limited nature of the offering.
(j) The Purchaser understands that there is no established
market for the Certificates and that none may develop and, accordingly,
that the Purchaser must bear the economic risk of an investment in the
Certificates for an indefinite period of time.
(k) The Purchaser agrees that it is bound by and will abide by
the provisions of the Pooling and Servicing Agreement pursuant to which
the Certificates are issued.
(l) All information which the Purchaser has provided to the
Seller concerning the Purchaser is correct and complete as of the date
hereof, and if there should be any adverse change in such information
before receiving notification that this subscription has been accepted, the
Purchaser will immediately provide the Seller with such information.
Very truly yours,
[PURCHASER]
By
Name
Title
EXHIBIT M
FORM OF ERISA REPRESENTATION LETTER
________________
(Date)
Aegis Auto Funding Corp.
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Norwest Bank Minnesota, National Association
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Attention: Corporate Trust Services Asset Backed Administration
Re: Aegis Auto Receivables Trust 1996-3
Auto Receivable Pass-Through
Certificates, Class ____
Ladies and Gentlemen:
[NAME OF OFFICER] _______________________ HEREBY
CERTIFIES THAT:
1. [That he [she] is [Title of Officer]
________________________ of [Name of Transferee]
___________________________________ (the "Transferee"), a [savings
institution] [corporation] duly organized and existing under the laws of
[the State of _____________] [the United States], on behalf of which he
[she] makes this affidavit.
2. The Transferee (i) is not, and on _________ [insert date of
transfer of Certificate to Transferee] will not be, and on such date will not
be investing the funds of, an employee benefit plan subject to the
Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Code or (ii) is an
insurance company investing assets of its general account and the
exemption provided by Section III(a) of Department of Labor Prohibited
Transaction Class Exemption 95-60, 60 Fed. Reg. 35925 (July 12, 1995)
(the "Exemption") applies to the transferee's acquisition and holding of
such Certificate.
3. The Transferee hereby acknowledges that under the terms
of the Pooling and Servicing Agreement (the "Agreement") among Aegis
Auto Funding Corp., and Norwest Bank Minnesota, National Association,
as Backup Servicer and as Trustee, dated as of September 1, 1996, no
transfer of any Class B or Class C Certificates shall be permitted to be
made to any person unless the Trustee has received (i) a certificate from
such transferee to the effect that such transferee (A) is not an employee
benefit plan subject to ERISA or a plan subject to Section 4975 of the
Code (a "Plan") and is not using assets of any such employee benefit or
other plan to acquire any such Certificate or (B) is an insurance company
investing assets of its general account and the Exemption applies to the
transferee's acquisition and holding of such Certificate or (ii) an opinion
of counsel satisfactory to the Trustee to the effect that the purchase and
holding of any such Certificate will not constitute or result in the assets
of the Trust created by the Agreement begin deemed to be "plan assets"
and subject to the prohibited transaction provisions of ERISA or Section
4975 of the Code and will not subject the Trustee or the Seller to any
obligation in addition to those undertaken in the Agreement (provided,
however, that the Trustee will not require such certificate or opinion in
the event that, as a result of changed of law or otherwise, counsel
satisfactory to the Trustee has rendered an opinion to the effect that the
purchase and holding of any such Certificate by a Plan or a Person that
is purchasing or holding any such Certificate with the assets of a Plan will
not constitute or result in a prohibited transaction under ERISA or Section
4975 of the Code).
IN WITNESS WHEREOF, the Transferee has caused this
instrument to be executed on its behalf, pursuant to authority of its Board
of Directors, by its [Title of Officer] __________________, this day of
_____, 199_.
_______________________________________________
[name of
Transferee]
By:_____________________________________________
Name:
Title:
EXHIBIT N
NOTICE OF FUNDING
In accordance with the Pooling and Servicing Agreement dated as
of September 1, 1996 by and among Norwest Bank Minnesota, National
Association, as backup servicer and as trustee, and Aegis Auto Funding
Corp., a Delaware corporation (the "Pooling and Servicing Agreement"),
the undersigned hereby gives notice of a Funding Date to occur on
____________, 19 for each of the Receivables listed on Schedule I to the
Assignment executed by the undersigned and accompanying this Notice of
Funding. Unless otherwise defined herein, capitalized terms have the
meanings set forth in the Pooling and Servicing Agreement.
Such Receivables represent the following amounts:
Principal Balance of Receivables
as of the Cutoff Date: $______________
Amount to be transferred
to the Reserve Fund from
the Funding Account: $______________
Amount to be wired to the undersigned or its
designee (Aegis Finance) in payment for such
Receivables: $______________
The undersigned hereby certifies that, in connection with the
Funding Date specified above, the undersigned has complied with all
terms and provisions specified in Section 3.08 of the Pooling and
Servicing Agreement, including, but not limited to, delivery of the
Officers' Certificate, as specified therein.
Date: ________________, 199
AEGIS AUTO
FUNDING CORP.,
a Delaware
Corporation, as Seller
By
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▇▇▇▇▇▇▇▇
President
EXHIBIT O
OFFICER'S CERTIFICATE
re: Funding Date
AEGIS AUTO FUNDING CORP.
To: Norwest Bank Minnesota, National Association
With Copies to:
Corporate Trust Services--Asset Backed Administration
Sixth Street and Marquette Avenue
Rating Agencies
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This Officer's Certificate is being issued in accordance with
Section 3.08 of the Pooling and Servicing Agreement dated as of
September 1, 1996 (the "Pooling and Servicing Agreement") by and
among Aegis Auto Funding Corp., a Delaware corporation, as seller
("Seller"), and Norwest Bank Minnesota, National Association, as Backup
Servicer and as Trustee. Terms not otherwise defined herein shall have
the meanings ascribed thereto in the Pooling and Servicing Agreement.
By his signature below, the undersigned certifies that:
(a) The matters set forth in Section 3.01(b) of the
Purchase Agreement by and between Aegis Auto Finance, Inc., as
the transferor named therein, and Seller, as transferee, are true and
correct. All Receivables acquired on the Funding Date to occur
on ________, 199 constitute Additional Receivables meeting the
criteria specified in the Purchase Agreement; and
(b) The representations and warranties set forth in
Sections 3.01(a) and (b) of the Pooling and Servicing Agreement
are true and correct as of the date hereof; and
(c) The documents listed in Sections 3.08(b)(i) and (ii)
of the Pooling and Servicing Agreement are being delivered to the
Trustee in its capacity as Custodian on or before the Funding Date
specified herein.
Dated: __________, 199_
AEGIS AUTO
FUNDING CORP.
a Delaware corporation,
as Seller
By
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, President
EXHIBIT P
ASSIGNMENT
In accordance with the Pooling and Servicing Agreement dated as
of September 1, 1996 by and among Aegis Auto Funding Corp., a
Delaware corporation (the "Seller"), and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee") and as backup servicer
(the "Backup Servicer") (the "Pooling and Servicing Agreement"), the
Seller hereby assigns, transfers and otherwise conveys unto the Trustee in
trust for the benefit of the Certificateholders, without recourse (capitalized
terms used herein and not otherwise defined shall have the meaning
assigned to them in the Pooling and Servicing Agreement): (i) all right,
title and interest of the Seller in and to the Receivables identified on
Schedule I attached hereto (the "Receivables"), and all moneys received
thereon, on and after the Cutoff Date allocable to principal, and all monies
received thereon allocable to interest accrued from and including the
Cutoff Date; (ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables and
all certificates of title to such Financed Vehicles; (iii) the interest of the
Seller in any Risk Default Insurance Proceeds or any proceeds from
claims on Insurance Policies (including the VSI Insurance Policy) covering
the Receivables, the Financed Vehicles or Obligors from the Cutoff Date;
(iv) the right of the Seller to realize upon any property (including the right
to receive future liquidation Proceeds) that shall have secured a Receivable
and have been repossessed by or on behalf of the Trustee; (v) the interest
of the Seller in any Dealer Recourse; (vi) all right, title and interest in the
Seller in and to the Purchase Agreement; (vii) all right, title and interest
of the Seller in and to the Funding Account and any monies and
investments on deposit therein and (viii) the proceeds of any and all of the
foregoing. The foregoing sale does not constitute and is not intended to
result in any assumption by the Trustee of any obligation of the
undersigned to the Obligors, insurers or any other person in connection
with the Receivables, Custodian Files, Servicer Files, any insurance
policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements contained in the Pooling and Servicing
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of , 199 .
AEGIS AUTO
FUNDING CORP.
a Delaware
corporation
By
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, President
EXHIBIT Q
REVIEW FIRM PROCEDURES
EXHIBIT R
TRUSTEE'S CERTIFICATE
PURSUANT TO SECTION 11.02
OF THE POOLING AND SERVICING AGREEMENT
Norwest Bank Minnesota, National Association, as trustee (the
"Trustee") of the Aegis Auto Receivables Trust Series 1996-3 created
pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of September 1, 1996 among Aegis Auto
Funding Corp. (the "Seller"), Norwest Bank Minnesota, National
Association, as backup servicer (the "Backup Servicer") and as trustee (the
"Trustee"), does hereby sell, transfer, assign and otherwise convey to the
Seller, without recourse, representation or warranty, all of the Trustee's
right, title and interest in and to all of the Receivables (as defined in the
Pooling and Servicing Agreement) identified in the attached Servicer's
Certificate of "Purchased Receivables," which are to be repurchased by
the Seller pursuant to Section 3.02 of the Pooling and Servicing
Agreement, and all security and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this
day of 199 .
Norwest Bank Minnesota, National
Association, as Trustee
By
[Name]
[Title]
EXHIBIT S
SCHEDULE OF IDENTIFIED RECEIVABLES
