EXHIBIT 4.2.12
FORM OF POOLING AND SERVICING AGREEMENT (CREDIT CARD SECURITIES)
FORM OF POOLING AND SERVICING AGREEMENT
among
[GS Mortgage Securities Corp.],
as Company,
[ ],
as Servicer
and
[ ],
as Trustee on behalf of the Certificateholders
Dated as of ___________
[ ] AUTO RECEIVABLES TRUST 200__
___% Asset Backed Certificates, Class A
___% Asset Backed Certificates, Class B
Table of Contents
Page
ARTICLE I DEFINITIONS....................................................................................1
Section 1.01 Definitions........................................................................1
Section 1.02 Other Definitional Provisions.....................................................13
ARTICLE II Conveyance of Receivables; Original Issuance of Certificates..........................14
Section 2.01 Conveyance of Receivables.........................................................14
Section 2.02 Acceptance by Trustee.............................................................15
Section 2.03 Representations and Warranties of the Company.....................................15
Section 2.04 Repurchase Upon Breach............................................................18
Section 2.05 Custody of Receivable Files.......................................................18
Section 2.06 Duties of Servicer as Custodian...................................................18
Section 2.07 Instructions; Authority to Act....................................................19
Section 2.08 Custodian's Indemnification.......................................................19
Section 2.09 Effective Period and Termination..................................................20
ARTICLE III Administration and Servicing of Receivables...........................................20
Section 3.01 Duties of Servicer................................................................20
Section 3.02 Collection and Allocation of Receivable Payments..................................21
Section 3.03 Realization Upon Receivables......................................................21
Section 3.04 Physical Damage Insurance.........................................................21
Section 3.05 Maintenance of Security Interests in Financed Vehicles............................22
Section 3.06 Covenants of Servicer.............................................................22
Section 3.07 Purchase of Receivables Upon Breach...............................................22
Section 3.08 Servicing Fee.....................................................................22
Section 3.09 Servicer's Certificate............................................................22
Section 3.10 Annual Statement as to Compliance; Notice of Default..............................23
Section 3.11 Annual Independent Certified Public Accountant's Report...........................23
Section 3.12 Access to Certain Documentation and Information Regarding Receivables.............23
Section 3.13 Servicer Expenses.................................................................24
Section 3.14 Appointment of Subservicer........................................................24
ARTICLE IV Accounts..............................................................................25
Section 4.01 Establishment of Trust Accounts...................................................25
Section 4.02 Reserve Account...................................................................26
ARTICLE V Payments and Statements to Certificateholders.........................................31
Section 5.01 Collections.......................................................................31
Section 5.02 Application of Collections........................................................31
Section 5.03 Advances..........................................................................31
Section 5.04 Additional Deposits...............................................................32
Section 5.05 Deposits..........................................................................32
Section 5.06 Statements to Certificateholders..................................................34
Section 5.07 Accounting and Tax Returns........................................................35
Section 5.08 Net Deposits......................................................................36
ARTICLE VI The Certificates......................................................................37
Section 6.01 The Certificates..................................................................37
Section 6.02 Authentication of Certificates....................................................37
Section 6.03 Registration of Transfer and Exchange of Certificates.............................37
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates.................................38
Section 6.05 Persons Deemed Owners.............................................................38
Section 6.06 Access to List of Certificateholders' Names and Addresses.........................38
Section 6.07 Maintenance of Office or Agency...................................................38
Section 6.08 Book-Entry Certificates...........................................................39
Section 6.09 Notices to Clearing Agency........................................................39
Section 6.10 Definitive Certificates...........................................................39
ARTICLE VII The Company...........................................................................41
Section 7.01 The Company's Representations.....................................................41
Section 7.02 Corporate Existence...............................................................43
Section 7.03 Liabilities of the Company........................................................43
Section 7.04 Merger or Consolidation of, or Assumption of the Obligations of, the Company......43
Section 7.05 Limitation on Liability of the Company and Others.................................43
Section 7.06 The Company May Own Certificates..................................................44
ARTICLE VIII The Servicer..........................................................................44
Section 8.01 Representations of Servicer.......................................................44
Section 8.02 Indemnities of Servicer...........................................................45
Section 8.03 Merger or Consolidation of, or Assumption of the Obligations of, Servicer.........46
Section 8.04 Limitation on Liability of Servicer and Others....................................46
ARTICLE IX Default...............................................................................46
Section 9.01 Events of Default.................................................................46
Section 9.02 Appointment of Successor..........................................................48
Section 9.03 Repayment of Advances.............................................................48
Section 9.04 Notification of Certificateholders................................................48
Section 9.05 Waiver of Past Defaults...........................................................48
ARTICLE X The Trustee...........................................................................49
Section 10.01 Duties of Trustee.................................................................49
Section 10.02 Certain Matters Affecting Trustee.................................................50
Section 10.03 Trustee Not Liable for Certificates or Receivables................................50
Section 10.04 Trustee May Own Certificates......................................................51
Section 10.05 Trustee's Fees and Expenses.......................................................51
Section 10.06 Eligibility Requirements for Trustee..............................................51
Section 10.07 Resignation or Removal of Trustee.................................................52
Section 10.08 Successor Trustee.................................................................52
Section 10.09 Merger or Consolidation of Trustee................................................52
Section 10.10 Appointment of Co-Trustee or Separate Trustee.....................................53
Section 10.11 Representations and Warranties of Trustee.........................................54
ARTICLE XI Termination...........................................................................55
Section 11.01 Termination of the Trust..........................................................55
Section 11.02 Optional Purchase of All Receivables..............................................55
ARTICLE XII Miscellaneous Provisions..............................................................56
Section 12.01 Amendment.........................................................................56
Section 12.02 Protection of Title to Trust......................................................56
Section 12.03 Separate Counterparts.............................................................58
Section 12.04 Limitation on Rights of Certificateholders........................................58
Section 12.05 GOVERNING LAW.....................................................................59
Section 12.06 Notices...........................................................................59
Section 12.07 Severability of Provisions........................................................59
Section 12.08 Assignment........................................................................59
Section 12.09 Certificates Nonassessable and Fully Paid.........................................59
Section 12.10 Limitations on Rights of Others...................................................60
Section 12.11 Headings..........................................................................60
POOLING AND SERVICING AGREEMENT dated as of ______________, among [GS
Mortgage Securities Corp.] (the "Company"), as depositor, ____________, as
servicer (the "Servicer"), and ____________, a____________banking
corporation, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company owns certain motor vehicle instalment loan
agreements and motor vehicle retail instalment sale contracts
(collectively, the "Motor Vehicle Instalment Contracts"); and
WHEREAS, the Company and the Trustee wish to set forth the terms and
conditions pursuant to which the Trust (as hereinafter defined) will
acquire the Motor Vehicle Instalment Contracts from the Company, and the
Servicer will service the Motor Vehicle Instalment Contracts on behalf of
the Trust;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Company and the Trustee hereby agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Account Property" means any account established and maintained
pursuant to Article IV, all amounts and investments held from time to time
in any such account (whether in the form of deposit accounts, Physical
Property, book-entry securities, uncertificated securities or otherwise),
and all proceeds of the foregoing.
"Advances" means either a Precomputed Advance or a Simple Interest
Advance or both, as applicable.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement.
"Amount Financed" means, with respect to any Receivable, the amount
advanced under the related Motor Vehicle Instalment Contract toward the
purchase price of the Financed Vehicle and any related costs.
"Annual Percentage Rate" or "APR" of a Receivable means the annual
rate of finance charges stated in the related Motor Vehicle Instalment
Contract.
"Benefit Plan" has the meaning set forth in Section 6.11(b).
"Book-Entry Certificates" means a beneficial interest in the Class A
Certificates ownership and transfers of which shall be registered through
book entries by a Clearing Agency as described in Section 6.08.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in ______________ are
authorized or obligated by law, regulation or executive order to be closed.
"Certificate Balance" means, as of any date, the aggregate outstanding
principal amount of the Certificates at such date.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Certificate Pool Factor" means, with respect to each class of
Certificates as of the close of business on the last day of a Collection
Period, a seven-digit decimal figure equal to the outstanding principal
amount of such class of Certificates (after giving effect to any reduction
thereof to be made on the immediately following Distribution Date) divided
by the original outstanding principal amount of such class of Certificates.
The Certificate Pool Factor will be 1.0000000 as of the Closing Date and,
thereafter, will decline to reflect reductions in the outstanding principal
amount of such class of Certificates.
"Certificateholder" or "Holder" means a Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar appointed pursuant to Section 6.03.
"Certificates" means the Class A Certificates and the Class B Certificates.
"Class A Certificate" means a ___% Asset Backed Certificate, Class A,
evidencing a beneficial interest in the Trust, substantially in the form of
Exhibit A.
"Class A Certificate Balance" means, initially, $__________, and as of
any date of determination thereafter, such initial Class A Certificate
Balance reduced by all amounts previously distributed to Holders of Class A
Certificates and allocable to principal.
"Class A Distributable Amount" means, with respect to any Distribution
Date, the sum of the Class A Principal Distributable Amount and the Class A
Interest Distributable Amount for such date.
"Class A Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the sum of the Class A Monthly Interest
Distributable Amount for the preceding Distribution Date, and any
outstanding Class A Interest Shortfall on such preceding Distribution Date,
over the amount in respect of interest that Holders of the Class A
Certificates actually received on such preceding Distribution Date, plus 30
days' interest on such excess, to the extent permitted by law, at the Class
A Pass-Through Rate.
"Class A Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class A Monthly Interest Distributable
Amount for such Distribution Date and Class A Interest Carryover Shortfall
for such Distribution Date.
"Class A Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, an amount equal to the product of (i) one-twelfth,
(ii) the Class A Pass-Through Rate and (iii) the Class A Certificate
Balance on the preceding Distribution Date (or, the case of the first
Distribution Date, the Closing Date) after giving effect to any amount
distributed to Holders of Class A Certificates on such preceding
Distribution Date and allocable to principal.
"Class A Monthly Principal Distributable Amount" means, with respect
to any Distribution Date, the Class A Percentage of the Principal
Distribution Amount.
"Class A Pass-Through Rate" means ___%.
"Class A Percentage" means ___%.
"Class A Principal Carryover Shortfall" means, as of the close of any
Distribution Date, the excess of the Class A Monthly Principal
Distributable Amount and any outstanding Class A Principal Carryover
Shortfall from the preceding Distribution Date, over the amount in respect
of principal that is actually distributed to Holders of the Class A
Certificates on such current Distribution Date.
"Class A Principal Distributable Amount" means, with respect to any
Distribution Date, the excess of the Class A Monthly Principal
Distributable Amount for such Distribution Date and the Class A Principal
Carryover Shortfall as of the closing of the preceding Distribution Date;
provided, however, that the Class A Principal Distributable Amount shall
not exceed the Class A Certificate Balance. In addition, on the Final
Scheduled Distribution Date, the principal required to be included in the
Class A Principal Distributable Amount will include the lesser of (a) the
Class A Percentage of (1) any Scheduled Payments of principal due and
remaining unpaid on each Precomputed Receivable and (2) any principal due
and remaining unpaid to each Simple Interest Receivable, in each case, in
the Trust as of the final Scheduled Maturity Date or (b) the amount that is
necessary (after giving effect to the other amounts to be distributed to
Holders of the Class A Certificates on such Distribution Date and allocable
to principal) to reduce the Class A Certificate Balance to zero.
"Class B Certificate" means a ___% Asset Backed Certificate, Class B,
evidencing a beneficial interest in the Trust, substantially in the form of
Exhibit B.
"Class B Certificate Balance" means initially, $__________, and as of
any date of determination thereafter, such initial Class B Certificate
Balance reduced by all amounts previously distributed to Holders of Class B
Certificates and allocable to principal.
"Class B Distributable Amount" means, with respect to any Distribution
Date, the sum of the Class B Principal Distributable Amount and the Class B
Interest Distributable Amount.
"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of the sum of the Class B Interest
Distributable Amount for the preceding Distribution Date and any
outstanding Class B Interest Carryover Shortfall on such preceding
Distribution Date, over the amount in respect of interest that Holders of
the Class B Certificates actually received on such preceding Distribution
Date, plus 30 days' interest on such excess, to the extent permitted by
law, at the Class B Pass-Through Rate.
"Class B Interest Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Monthly Interest Distributable
Amount for such Distribution Date and the Class B Interest Carryover
Shortfall for such Distribution Date.
"Class B Monthly Interest Distributable Amount" means, with respect to
any Distribution Date, an amount equal to the product of (i) one-twelfth,
(ii) the Class B Pass-Through Rate and (iii) the Class B Certificate
Balance on the preceding Distribution Date (or, in the case of the first
Distribution Date, the Closing Date) after giving effect to (a) any amount
distributed to Holders of the Class B Certificates on such preceding
Distribution Date and allocable to principal and (b) any Realized Losses
allocated to the Class B Certificates on such preceding Distribution Date.
"Class B Monthly Principal Distributable Amount" means, with respect
to any Distribution Date, the Class B Percentage of the Principal
Distribution Amount.
"Class B Pass-Through Rate" means___%.
"Class B Percentage" means ___%.
"Class B Principal Carryover Shortfall" means, as of the close of any
Distribution Date, the excess of the Class B Monthly Principal
Distributable Amount and any outstanding Class B Principal Carryover
Shortfall from the preceding Distribution Date, over the amount in respect
of principal that is actually distributed to Holders of the Class B
Certificates on such current Distribution Date.
"Class B Principal Distributable Amount" means, with respect to any
Distribution Date, the sum of the Class B Monthly Principal Distributable
Amount for such Distribution Date and the Class B Principal Carryover
Shortfall as of the close of the preceding Distribution Date; provided,
however, that the Class B Principal Distributable Amount shall not exceed
the Class B Certificate Balance. In addition, on the Final Scheduled
Distribution Date, the principal required to be included in the Class B
Principal Distributable Amount will include the lesser of (a) the Class B
Percentage of (1) any Scheduled Payments of principal due and remaining
unpaid on each Precomputed Receivable and (2) any principal due and
remaining unpaid on each Simple Interest Receivable, in each case, in the
Trust as of the Final Scheduled Maturity Date or (b) the amount that is
necessary (after giving effect to the other amounts to be deposited in the
Distribution Account on such Distribution Date and allocable to principal)
to reduce the Class B Certificate Balance to zero.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"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 ______________.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 4.01.
"Collection Period" means a calendar month (or in the case of the
first Distribution Date, the period from and including the Cut-off Date to
and including the last day of the calendar month in which the Closing Date
occurs). Any amount stated as of the last day of a Collection Period or as
of the first day of a Collection Period or as of the first day of a
collection Period shall give effect to the following calculations as
determined as of the close of business on such last day: (a) all
applications of collections, (b) all current and previous Payaheads, (c)
all applications of Payahead Balances, (d) all Advances and reductions of
Advances and (e) all distributions to be made on the following Distribution
Date.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, which at the time of execution of this agreement is located at
______________________, Attention: ________________, or at such other
address as the Trustee may designate from time to time by notice to
Certificateholders, the Company and the Servicer, or the principal
corporate trust office of any successor Trustee (of which address such
successor Trustee shall notify the Certificateholders, the Company and the
Servicer).
"Cut-off Date" means _______________.
"Cut-off Date Pool Balance" means the sum of the aggregate Principal
Balance of the Receivables as of the Cut-off Date.
"Definitive Certificates" shall have the meaning specified in Section
6.11.
"Delivery" when used with respect to Account Property means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-102(a)(47) of the UCC and are susceptible
of physical delivery, transfer thereof to the Trustee or its nominee or
custodian by physical delivery to the Trustee or its nominee or custodian
endorsed to, or registered in the name of, the Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a certificated
security (as defined in Section 8-102 of the UCC) transfer thereof : (i) by
delivery of such certificated security endorsed to, or registered in the
name of, the Trustee or its nominee or custodian or endorsed in blank to a
financial intermediary (as defined in Section 8-313 of the UCC) and the
making by such financial intermediary of entries on its books and records
identifying such certificated securities as belonging to the Trustee or its
nominee or custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by the Trustee
or its nominee or custodian, or (ii) by delivery thereof to a "clearing
corporation" (as defined in Section 8-102(3) of the UCC) and the making by
such clearing corporation of appropriate entries on its books reducing the
appropriate securities account of the transferor and increasing the
appropriate securities account of a financial intermediary by the amount of
such certificated security, the identification by the clearing corporation
of the certificated securities for the sole and exclusive account of the
financial intermediary, the maintenance of such certificated securities by
such clearing corporation or a "custodian bank" (as defined in section
8-102(4) of the UCC) or the nominee of either, subject to the clearing
corporations' exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the Trustee or its nominee or
custodian of such securities and the making by such financial intermediary
of entries on its books and records identifying such certificated
securities as belonging to the Trustee or its nominee or custodian (all of
the foregoing, "Physical Property"), and, in any event, any such Physical
Property in registered form shall be in the name of the Trustee or its
nominee or custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect the complete transfer of ownership
of any such Account Property to the Trustee or its nominee or custodian,
consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any securities issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that are book-entry securities held through the Federal Reserve
System pursuant to federal book-entry regulations, the following
procedures, all in accordance with applicable Law, including applicable
federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such Account Property to an appropriate book-entry account
maintained with Federal Reserve Bank by a financial intermediary that is
also a "depository" pursuant to applicable federal regulations and issuance
by such financial intermediary of deposit advice or other written
confirmation of such book-entry registration to the Trustee or its nominee
or custodian of the purchase by the Trustee or its nominee or custodian of
such book-entry securities; the making by such financial intermediary of
entries in its books and records identifying such book-entry security held
through the Federal Reserve System pursuant to federal book-entry
regulations as belonging to the Trustee, or its nominee or custodian and
indicating that such custodian holds such Account Property solely as agent
for the Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Account Property to the Trustee
or its nominee or custodian consistent with changes in applicable law or
regulations or the interpretation thereof; and
(c) with respect to any item of Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed
by clause (b) above, registration on the books and records of the issuer
thereof in the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by the Trustee
or its nominee or custodian of such uncertificated security, and the making
by such financial intermediary of entries on its books an records
identifying such uncertificated certificates as belonging to the Trustee or
its nominee or custodian.
"Depository Agreement" means the agreement dated __________, among the
Trustee and The Depository Trust Company, as the initial Clearing Agency,
substantially in the form of Exhibit C.
"Determination Date" means the ____day of each calendar month or, if
such day is not a Business Day, the immediately following Business Day.
"Distribution Account" means the account designated as such,
established and maintained pursuant to Section 4.01.
"Distribution Date" means, with respect to each Collection Period, the
___ day of the following calendar month or, if such day is not a Business
Day, the immediately following Business Day, commencing on ____
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the United States of America or any one to the states thereof or
the District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution
shall have a credit rating from each Rating Agency in one of its generic
rating categories that signifies investment grade.
"Eligible Institution" means (a) the corporate trust department of the
Trustee or (b) a depository institution organized under the laws of the
United States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), which (1) has
either (A) a long-term unsecured debt rating of AAA or better by Standard &
Poor's and A1 or better by Moody's or (B) a certificate of deposit rating
of A-1+ by Standard & Poor's and P-1 or better by Moody's or any other
long-term, short-term or certificate of deposit rating acceptable to the
Rating Agencies and (2) whose deposits are insured by the FDIC. If so
qualified, the Trustee may be considered an Eligible Institution for the
purposes of clause (b) of this definition.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or
registered form which evidence;
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof (of any domestic branch of a
foreign bank ) and subject to supervision and examination by federal or
state banking or depository institution authorities; provided, however,
that at the time of the investment or contractual commitment to invest
therein, the commercial paper or other short-term unsecured debt
obligations thereof (other than such obligations the rating of which is
based on the credit of a Person other than such depository institution or
trust company) shall have a credit rating of A-1+ from Standard & Poor's
and P1 from Moody's;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating of A-1+ from Standard &
Poor's and P1 from Moody's;
(d) investments in money market funds having a rating of AAA-m or
AAAm-G from Standard & Poor's and Aaa from Moody's;
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (b);
(g) any other investment with respect to which the Trustee or the
Company has received written notification from the Rating Agencies that the
acquisition of such investment as an Eligible Investment will not in a
withdrawal or downgrading of the ratings of the Certificates.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" means an event specified in Section 9.01.
"FDIC" means the Federal Deposit Insurance Corporation.
"Final Scheduled Distribution Date" means ______________.
"Final Scheduled Maturity Date" means __________________.
"Financed Vehicle" means an automobile, van or light-duty truck,
together with all accessions thereto, securing an Obligor's indebtedness
under the related Receivable.
"Interest Distribution Amount" means, with respect to any Distribution
Date, the sum of the following amounts in respect of the preceding
Collection Period:(a) that portion of all collections on Receivables
(including Payaheads) allocable to interest, (b) Liquidation Proceeds with
respect to the Receivables to the extent allocable to interest due thereon
in accordance with the Servicer's customary servicing procedures, (c) all
Advances made by the Servicer of Interest due on Receivables, (d) the
Purchase Amount of each Receivable that became a Purchased Receivable
during the related Collection Period to the extent attributable to accrued
interest on such Receivable, (e) the Yield Supplement Amount; and (f)
Recoveries; provided, however, that in calculating the Interest
Distribution Amount the following will be excluded: (i) amounts received on
Precomputed Receivables to the extent that the Servicer has previously made
an unreimbursed Precomputed Advance of interest; (ii) Liquidation Proceeds
with respect to a particular Precomputed Receivable to the extent of any
unreimbursed Precomputed Advances of interest; (iii) all payments and
proceeds (including Liquidation Proceeds) of any Purchased Receivables the
Purchase Amount of which has been included in the Interest Distribution
Amount in a prior Collection Period; (iv) the sum for all Simple Interest
Receivables of collections allocable to interest on each such Simple
Interest Receivable received during the preceding Collection Period in
excess of the amount of interest that would be due on the aggregate
Principal Balance of the Simple Interest Receivables during such Collection
Period at their respective APR's if a payment were received on each Simple
Interest Receivable during such Collection Period on the date payment is
due under the terms of the related Motor Vehicle Instalment Contract; and
(v) Liquidation Proceeds with respect to a Simple Interest Receivable
attributable to accrued and unpaid interest thereon (but not including
interest for the then current Collection Period) but only to the extent of
any unreimbursed Simple Interest Advances.
"Investment Earnings" means, with respect to any Distribution Date,
the investment earnings (net of losses and investment expenses) on amounts
on deposit in the Collection Account, Reserve Account and Yield Supplement
Account, which will be distributed on each Distribution Date in the manner
set forth in Article IV.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind, other than tax liens, mechanics' liens and any
liens that attach to the respective Receivable by operation of law.
"Liquidated Receivable" means any Receivable liquidated by the
Servicer through sale of a Financed Vehicle or otherwise.
"Liquidation Proceeds" means, with respect to a Liquidated Receivable,
the monies collected in respect thereof, from whatever source, during the
Collection Period in which such Receivable became a Liquidated Receivable,
net of the sum of any amounts expended by the Servicer in connection with
such liquidation, plus any amounts required by law to be remitted to the
Obligor.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or its successor.
"Motor Vehicle Instalment Contract" means a motor vehicle instalment
loan agreement originated by a Seller or a motor vehicle retail instalment
sale contract acquired by a Seller from a motor vehicle dealer or another
financial institution.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle and any other Person who owes payments under the
Receivable.
"Officers' Certificate" means a certificate signed by the (a) chairman
of the board, the president, the vice chairman of the board, any executive
vice president or any vice president and (b) a cashier, assistant cashier,
any treasurer, assistant treasurer, secretary or assistant secretary of the
Company, a Seller or the Servicer, as appropriate.
"Opinion of Counsel" means one or more written opinions of counsel,
who may be an employee of or counsel to the Servicer, which counsel shall
be acceptable to the Trustee or Rating Agencies, as applicable.
"Outstanding Precomputed Advances" means on the Precomputed
Receivables means the sum, as of the close of business on the last day of a
Collection Period, of all Precomputed Advances, reduced as provided by
Section 5.03(a).
"Outstanding Simple Interest Advances" on the Simple Interest
Receivables means the sum, as of the close of business on the last day of a
Collection Period, of all Precomputed Advances, reduced as provided by
Section 5.03(b).
"Payahead" on a Receivable that is a Precomputed Receivable means the
amount, as of the close of business on the last day of a Collection Period,
computed in accordance with Section 5.02 with respect to such Receivable.
"Payahead Balance" on a Precomputed Receivable means the sum, as of
the close of business on the last day of a Collection Period, of all
Payaheads made by or on behalf of the Obligor with respect to such
Precomputed Receivable, as reduced by applications of previous Payaheads
with respect to such Precomputed Receivable, pursuant to Sections 5.02 and
5.03.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" means, as of the close of business on the last day of a
Collection Period, the aggregate Principal Balance of the Receivables as of
such date (excluding Purchased Receivables and Liquidated Receivables).
"Precomputed Advance" means the amount, as of the close of business on
the last day of a Collection Period, which the Servicer is required to
advance on any Precomputed Receivable pursuant to Section 5.03(a).
"Precomputed Receivable" means any Receivable under which the portion
of each payment allocable to earned interest (which may be referred to in
the Receivable as an add-on finance charge) and the portion allocable to
the Amount Financed are determined according to the sum of periodic
balances or the sum of monthly balances or any equivalent method, or which
is a monthly actuarial receivable.
"Principal Balance" means (a) with respect to any Precomputed
Receivable, the Amount Financed minus the sum, as of the close of business
on the last day of a Collection Period, of (1) that portion of all
Scheduled Payments due on or prior to such day allocable to principal using
the actuarial or constant yield method, (2) any refunded portion of
extended warranty protection plan costs or physical damage, credit life or
disability insurance premiums included in the Amount Financed, (3) the
portion of any related Purchase Amount allocable to principal and (4) any
prepayment in full or any partial prepayments applied to reduce the related
Principal Balance; and (b) with respect to any Simple Interest Receivable,
the Amount Financed minus the sum, as of the close of business on the last
day of a Collection Period, of (1) the portion of all payments made by or
on behalf of the related Obligor on or prior to such day and allocable to
principal using the Simple Interest Method and (2) the portion of any
related Purchase Amount allocable to principal.
"Principal Distribution Amount" means, for any Distribution Date, the
sum of the following amounts with respect to the preceding Collection
Period:
(a) that portion of all collections on Receivables (including amounts
withdrawn from the Payahead Account but excluding amounts deposited into
the Payahead Account pursuant to Sections 4.01(c) and 5.02) allocable to
principal; (b) all Liquidation Proceeds attributable to the principal
amount of Receivables that became Liquidated Receivables during such
Collection Period in accordance with the Servicer's customary servicing
procedures, plus the amount of Realized Losses with respect to such
Liquidated Receivables; (c) all Precomputed Advances made by the Servicer
of principal due on the Precomputed Receivables; (d) to the extent
attributable to principal, the Purchase Amount received with respect to
each Receivable that became a Purchased Receivable during the related
Collection Period; (e) partial prepayments relating to refunds of extended
warranty protection plan costs or of physical damage, credit life or
disability insurance policy premiums, but only if such costs or premiums
were financed by the respective Obligor as of the date of the original
Motor Vehicle Instalment Contract; and (f) on the Final Scheduled
Distribution Date, any amounts advanced by the Servicer on such date with
respect to principal on the Receivables.
"Purchase Amount" means the amount, as of the close of business on the
last day of a Collection Period, required to prepay a Receivable in full
under the terms thereof, including interest to the end of the month of
purchase.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Servicer pursuant to
Section 3.07 or by the Company pursuant to Section 2.04.
"Rating Agency" means Moody's or Standard & Poor's or, if neither such
organization nor a successor thereto remains in existence, any nationally
recognized statistical rating organization or other comparable Person
designated by the Company, notice of which designation shall be given to
the Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days (or such shorter period as
shall be acceptable to each Rating Agency) prior notice thereof and that,
within 7 days of receipt of such notice, none of the Rating Agencies shall
have notified the Company, the Servicer or the Trustee in writing that such
action will result in a reduction or withdrawal of the then current ratings
of the Certificates.
"Realized Losses" means, with respect to any Receivable that becomes a
Liquidated Receivable, the excess of the Principal Balance of such
Liquidated Receivable over that portion of Liquidation Proceeds allocable
to principal.
"Receivable" means any Motor Vehicle Instalment Contract listed on
Schedule I (which schedule may be in the form of microfiche).
"Receivable Files" means the documents specified in Section 2.05.
"Receivables Purchase Agreement" means an agreement, substantially in
the form of Exhibit H hereto, between the Company and a Seller, pursuant to
which such Seller sold Motor Vehicle Instalment Contracts to be included in
the Trust to the Company.
"Record Date" with respect to each Distribution Date means the _____
day of the calendar month in which such Distribution Date occurs.
"Recoveries" means, with respect to any Receivable that becomes a
Liquidated Receivable, monies collected in respect thereof, from whatever
source, during any Collection Period following the Collection Period in
which such Receivable became a Liquidated Receivable, net of the sum of any
amounts expended by the Servicer for the account of the Obligor and any
amounts required by law to be remitted to the Obligor.
"Reserve Account" means the account designated as such, established
and maintained pursuant to Section 4.02.
"Reserve Account Initial Deposit" means, with respect to the Closing
Date, an amount equal to the Specified Reserve Account Balance on the
Closing Date (which is equal to $_________) and, with respect to each
Subsequent Transfer Date, an amount equal to ___% of the Principal Balance
of the Subsequent Receivables transferred to the Trust on such Subsequent
Transfer Date.
"Scheduled Payment" with respect to any Precomputed Receivable means
the payment required to be made by the Obligor during each Collection
Period under the related Motor Vehicle Instalment Contract sufficient to
amortize the Principle Balance of such Precomputed Receivable, using the
actuarial method, over the term of the Receivable and to provide interest
at the APR.
"Seller" means, with respect to any Receivable, the Person from whom
such Receivable was acquired by the Company pursuant to the related
Receivables Purchase Agreement.
"Servicer" means ______________, and each successor Servicer pursuant
to Section 8.03 or 9.02.
"Servicer's Certificate" means the certificate required to be
delivered by the Servicer pursuant to Section 3.09.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during each Collection Period, determined pursuant to Section
3.08.
"Servicing Rate" means ___% per annum.
"Simple Interest Advance" means the amount of interest, as of the
close of business on the last day of a Collection Period, that the Servicer
is required to advance on the Simple Interest Receivables pursuant to
Section 5.03(b).
"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 fixed
rate of interest multiplied by the unpaid principal balance multiplied by
the period of time elapsed since the preceding payment of interest was made
and the remainder of such payment is allocable to principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principle is determined in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" means [STATE FORMULA].
"Standard & Poor's" means Standard & Poor's Rating Group, a Division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successor.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Total Distribution Amount" means, for each Distribution Date, the sum
of the Interest Distribution Amount and the Principal Distribution Amount
(other than the portion thereof attributable to Realized Losses).
"Trust" means the trust created by this Agreement.
"Trust Account" means any of the Collection Account, the Distribution
Account and the Payahead Account, established and maintained pursuant to
Section 4.01.
"Trustee" means ___________________, a _______________ banking
corporation, its successors in interest and any successor Trustee
hereunder.
"Trustee Officer" means any officer within the Corporate Trust Office
of the Trustee, including the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive committee of the
board of directors, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to
a particular corporate trust matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York on the date hereof.
"Weighted Average Pass-Through Rate" means the weighted average
(calculated on the basis of the outstanding principal amounts) of the Class
A Pass-Through Rate and the Class B Pass-Through Rate.
"Yield Supplement Account" means the account established and
maintained pursuant to Section 4.03.
"Yield Supplement Account Agreement" means the agreement dated as of
____________, among the Company, the Servicer and the Trustee,
substantially in the form of Exhibit J.
"Yield Supplement Amount" means, with respect to any Receivable (other
than a Liquidated Receivable or Purchased Receivable after the Collection
Period in which such Receivable becomes a Liquidated Receivable or
Purchased Receivable) and any Distribution Date, the amount, if positive,
equal to the product of (a) one-twelfth, (b) the sum of (i) the Weighted
Average Pass-Through Rate, plus the Servicing Fee Rate, minus the APR of
such Receivable and (c) the Principal Balance of such Receivable.
"Yield Supplement Initial Deposit" means $____________.
"Yield Supplement Maximum Amount" means $_____________.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto unless otherwise defined therein.
(b) As used herein, and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined herein
or in any such certificate or other document, and accounting terms partly
defined herein or in any such certificate or other document to the extent
not defined, shall have the respective meanings given to them under United
States generally accepted accounting principles. To the extent that the
definitions of accounting terms herein or in any such certificate or other
document are inconsistent with the meanings of such terms under United
States generally accepted accounting principles, the definitions contained
herein or in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and word of similar
import when used herein shall refer to this Agreement as a whole and not to
any particular provision hereof; Article, Section, Schedule and Exhibit
references contained herein are references to Articles, Sections, Schedules
and Exhibits herein; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means
such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
Conveyance of Receivables; Original Issuance of Certificates
Section 2.01 Conveyance of Receivables. In consideration of the
Trustee's delivery on the Closing Date to or upon the order of the Company
of Class A Certificates in an initial aggregate principal amount of
$_____________ and Class B Certificates in an initial aggregate principal
amount of $__________, the Company does hereby sell, transfer, assign, set
over and otherwise convey to the Trustee in trust for the benefit of the
Certificateholders, without recourse (subject to the obligations set forth
herein), all right, title and interest of the Company in and to:
(a) the Receivables and all moneys due thereon on or after the Cutoff
Date, in the case of Precomputed Receivables, or all moneys received
thereon on and after the Cutoff Date, in the case of Simple Interest
Receivables;
(b) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Company
in such Financed Vehicles;
(c) any proceeds with respect to the Receivables from claims on any
physical damage, theft, credit life or disability insurance policies
covering Financed Vehicles or Obligors;
(d) any Financed Vehicle that shall have secured any such Initial
Receivable and shall have been acquired by or on behalf of the Company, the
Servicer or the Trust;
(e) all other assets comprising the estate of the Trust; and
(f) the proceeds of any and all of the foregoing.
Section 2.02 Acceptance by Trustee. The Trustee hereby acknowledges
the sale, transfer and assignment of the Receivables and the other assets
of the Trust referred to in Section 2.01 and declares that the Trustee
holds and will hold the Receivables and such other assets in trust, upon
the terms herein set forth, for the use and benefit of all present and
future Certificateholders.
Section 2.03 Representations and Warranties of the Company. The
Company makes the following representations and warranties as to the
Receivables conveyed to the Trust, on which the Trustee is deemed to have
relied in accepting the Receivables in trust and executing and
authenticating the Certificates. Such representations and warranties speak
as of the execution and delivery of this Agreement and as of the Closing
Date, but shall survive the sale, transfer and assignment of the
Receivables to the Trustee.
(a) Characteristics of Receivables. Each Receivable (1) was originated
by the Seller thereof or acquired from a motor vehicle dealer or another
financial institution by such Seller in the ordinary course of such
Seller's business, (2) has created a valid, subsisting and enforceable
first priority security interest in favor of such Seller in the Financed
Vehicle, which security interest is assignable by such Seller and the
Company, (3) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for realization
against the collateral of the benefits of the security, (4) 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 the
level payments) that fully amortize the Amount Financed by maturity and
yield interest at the Annual Percentage Rate, and (5) in the case of a
Precomputed Receivable, in the event that such contract is prepaid,
provides for a prepayment that fully pays the Principal Balance and
includes accrued but unpaid interest through the date of prepayment at the
Annual Percentage Rate.
(b) Schedule of Receivables. The information set forth in Schedule I
to this Agreement is true and correct in all material respects as of the
opening of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Certificateholders were utilized in selecting
the Receivables. The computer tape or other listing regarding the
Receivables made available to the Trustee is true and correct in all
material respects as of the Cutoff Date.
(c) Compliance with Law. Each Receivable and the sale of the Financed
Vehicle complied in all material respects at the time it was originated or
made and at the execution of this Agreement 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, and 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.
(d) 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, subject to applicable
bankruptcy, insolvency, reorganization and similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and to general
principles of equity (whether applied in a proceeding at law or in equity).
(e) No Government Obligor. None of the Receivables is due from the
United States of America or any State or from any agency, department or
instrumentality of the United States of America or any State.
(f) Security Interest in Financed Vehicle. Immediately prior to the
sale, assignment and transfer thereof to the Trustee, each Receivable shall
be secured by a validly perfected first security interest in the Financed
Vehicle in favor of the Company as secured party or all necessary and
appropriate actions have been commenced that would result in the valid
perfection of a first security interest in the Financed Vehicle in favor of
the Company as secured party.
(g) 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.
(h) No Waiver. No provision of a Receivable has been waived in such a
manner that the Receivable fails to meet any other representation or
warranty of the Company with respect thereto.
(i) No Amendments. No Receivable shall have been amended such that the
amount of the Obligor's Scheduled Payments shall have been increased except
for increases resulting from the inclusion of any premiums for forced
placed physical damage insurance covering the Financed Vehicle.
(j) No Defenses. No facts are known to the Company that would give
rise to any right of rescission, setoff, counterclaim or defense, nor shall
the same have been asserted or threatened, with respect to any Receivable.
(k) No Liens. To the best of the Company's knowledge, no liens or
claims have been filed for work, labor or materials relating to a Financed
Vehicle that are prior to, or equal or coordinate with, the security
interest in the Financed Vehicle granted by the Receivable.
(l) No Default. No Receivable has a payment that is more than 90 days
overdue as of the related Cutoff Date and, except as permitted in this
paragraph, no default, breach, violation or event permitting acceleration
under the terms of any Receivable has occurred; 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
Receivable has arisen; and the Company has not waived and shall not waive
any of the foregoing.
(m) Insurance. The related Seller, in accordance with its customary
procedures, has determined that the Obligor has obtained physical damage
insurance covering the Financed Vehicle and under the terms of the
Receivable the Obligor is required to maintain such insurance.
(n) Title. It is the intention of the Company that the transfer and
assignment herein contemplated constitute a sale of the Receivables from
the Company to the Trust and that the beneficial interest in and title to
the Receivables not be part of the debtor's estate in the event of the
filing of a petition of receivership by or against the Company. No
Receivable has been sold, transferred, assigned or pledged by the Company
to any Person other than the Trustee. Immediately prior to the transfer and
assignment herein contemplated, the Company had good and marketable title
to each Receivable conveyed by it hereunder to the Trust, free and clear of
all Liens and rights of others and, immediately upon the transfer thereof,
the Trustee, in trust for the benefit of the Certificateholders, shall have
good and marketable title to each such Receivable, free and clear of all
Liens and rights of others; and the transfer of the Receivables to the
Trustee for the benefit of the Certificateholders has been perfected under
the UCC.
(o) Lawful Assignment. No Receivable was originated in, or is subject
to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable under this Agreement shall be unlawful, void
or voidable.
(p) All Filings Made. All filings (including UCC filings) necessary in
any jurisdictions to give the Trustee a first perfected ownership interest
in the Receivables shall have been made.
(q) One Original. There shall be only one original executed copy of
each Receivable.
(r) Scheduled Payments. (1) No Receivable has a payment that is more
than 90 days overdue as of the related Cutoff Date and (2) no Receivable
has a final scheduled payment date that is later than the Final Scheduled
Maturity Date.
(s) Location of Receivable Files. The Receivable Files are kept at one
or more of the locations listed in Schedule II.
(t) No Bankruptcies. No Obligor on any Receivable as of the related
Cutoff Date was noted in the related Receivable File as having filed for
bankruptcy.
(u) No Repossessions. No Financed Vehicle securing any Receivable is
in repossession status.
(v) Maturity of Receivables. The weighted average remaining term of
the Initial Receivables as of the Initial Cutoff Date is _______ months.
(w) Financing. Approximately ___% of the aggregate principal balance
of the Receivables, constituting ___% of the number of Receivables as of
the Cutoff Date, represents financing of new vehicles and the remainder of
the Receivables represents financing of used vehicles; and approximately
___% of the aggregate principal balance of the Receivables as of the Cutoff
Date represent Precomputed Receivables and the remainder of the Receivables
represent Simple Interest Receivables. The aggregate Principal Balance of
the Receivables as of the Cutoff Date is $_____________.
(x) Chattel Paper. Each Receivable constitutes "chattel paper" under
the UCC.
(y) Agreement. The representations and warranties of the Company in
this Section and Section 7.01 are true and correct.
(z) APR. The weighted average Annual Percentage Rate of the
Receivables as of the Cutoff Date is approximately ___%.
Section 2.04 Repurchase Upon Breach. The Company, the Servicer or the
Trustee, as the case may be, shall inform the other parties to this
Agreement promptly in writing, upon the discovery of any breach of the
Company's representations and warranties made pursuant to Section 2.03.
Unless any such breach is cured in all material respects by the last day of
the second Collection Period following the discovery thereof (and notice to
the Company) by the Trustee or receipt by the Trustee of notice thereof
from the Company or the Servicer, the Company shall be obligated to
repurchase, as of such last day (or, at the Company's option, the last day
of the first Collection Period following such discovery or notice), any
Receivable conveyed by it to the Trust if the interest of the
Certificateholders in such Receivable is materially and adversely affected
by such breach. In consideration of the repurchase of any such Receivable,
the Company shall remit the Purchase Amount to the Collection Account, in
the manner specified in Section 5.04. The sole remedy of the Trustee, the
Trust or the Certificateholders with respect to a breach of representations
and warranties pursuant to Section 2.03 and the agreement contained in this
Section shall be to require the Company to repurchase Receivables pursuant
to this Section 2.04, subject to the conditions contained herein.
Section 2.05 Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Trustee
hereby revocably appoints the Servicer, and the Servicer hereby accepts
such appointment, to act as the agent of the Trustee as custodian of the
following documents or instruments, which are hereby constructively
delivered to the Trustee as of the Closing Date with respect to each
Receivable:
(a) the fully executed original of the Receivable;
(b) a copy of the original credit application as executed by the
Obligor;
(c) the original certificate of title or such documents that the
Servicer or the related Seller shall keep on file, in accordance with their
customary procedures, evidencing the security interest of such Seller in
the Financed Vehicle; and
(d) any and all other documents that the Servicer or related Seller
shall keep on file, in accordance with their customary procedures, relating
to a Receivable, an Obligor or a Financed Vehicle.
Section 2.06 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files as
custodian on behalf of the Trustee for the benefit of all present and
future Certificateholders, and shall maintain such accurate and complete
accounts, records and computer systems pertaining to each Receivable File
as shall enable the Trustee to comply with this Agreement. In performing
its duties as custodian, the Servicer shall act with reasonable care, using
that degree of skill and attention that the Servicer exercises with respect
to the receivable files relating to all comparable automotive receivables
that the Servicer services for itself or others. The Servicer shall
conduct, or cause to be conducted, periodic audits of the Receivable Files
held by it under this Agreement, and of the related accounts, records and
computer systems, in such a manner as shall enable the Trustee to verify
the accuracy of the Servicer's record keeping. The Servicer shall promptly
report to the Trustee any failure on its part to hold the Receivable Files
and maintain its accounts, records and computer systems as herein provided
and shall promptly take appropriate action to remedy any such failure.
Nothing herein shall be deemed to require an initial review or any periodic
review by the Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at its offices specified in Schedule II to this
Agreement 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
Servicer shall make available to the Trustee or its duly authorized
representatives, attorneys or auditors a list of locations of the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times during normal business hours as
the Trustee shall instruct.
(c) Release of Documents. Upon instruction from the Trustee, the
Servicer shall release any Receivable File to the Trustee, the Trustee's
agent or the Trustee's designee, as the case may be, at such place or
places as the Trustee may designate, as soon as practicable, and upon the
release and delivery of any such document in accordance with the
instructions of the Trustee, the Servicer shall be released from any
further liability and responsibility under this Section 2.06 with respect
to such documents unless and until such time as such documents shall be
returned to the Servicer, and in no event shall the Servicer be responsible
for any loss occasioned by the Trustee's failure to return any document in
a timely manner.
Section 2.07 Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by a Trustee Officer.
Section 2.08 Custodian's Indemnification. The Servicer as custodian
shall indemnify the Trustee and each of its officers, directors, employees
and agents for any and all liabilities, obligations, losses, compensatory
damages, payments, costs, or expenses of any kind whatsoever that may be
imposed on, incurred by or asserted against the Trustee or any of its
officers, directors, employees or agents as the result of any improper act
or omission in any way relating to the maintenance and custody by the
Servicer as custodian of the Receivable Files; provided, however, that the
Servicer shall not be liable to the Trustee or any such officer, director,
employee or agent of the Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the
Trustee or any such officer, director, employee or agent of the Trustee.
Section 2.09 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and
shall continue in full force and effect until terminated pursuant to this
Section 2.09. If the Servicer shall resign as Servicer in accordance with
the provisions of this Agreement or if all of the rights and obligations of
any Servicer shall have been terminated under Section 9.01, the appointment
of such Servicer as custodian shall be terminated by the Trustee, or by
Holders of the Certificates evidencing not less than 25% of the Certificate
Balance, in the same manner as the Trustee or such Holders may terminate
the rights and obligations of the Servicer under Section 9.01. The Trustee
may terminate the Servicer's appointment as custodian, with cause, at any
time upon written notification to the Servicer, and without cause upon 30
days' prior written notification. As soon as practicable after any
termination if such appointment, the Servicer shall deliver the Receivable
Files to the Trustee or the Trustee's agent at such place or places as the
Trustee may reasonably designate. Notwithstanding any such termination of
the Servicer as custodian, the Trustee agrees to provide, or to cause its
agent to provide, access to the Receivable Files to the Servicer for the
purpose of carrying out its duties and responsibilities with respect to the
servicing of the Receivables hereunder.
ARTICLE III
Administration and Servicing of Receivables
Section 3.01 Duties of Servicer. The Servicer, as agent for the
Trustee (to the extent provided herein), shall manage, service, administer
and make collections on the Receivables (other than Purchased Receivables)
with reasonable care, using that degree of skill and attention that the
Servicer exercises with respect to all comparable automotive receivables
that it services for itself or others. The Servicer's duties shall include
collection and posting of all payments, responding to inquiries of Obligors
on such Receivables, investigating delinquencies, sending payment coupons
to Obligors, reporting tax information to Obligors, accounting for
collections, furnishing monthly and annual statements to the Trustee with
respect to distributions, and making Advances pursuant to Section 5.03.
Subject to the provisions of Section 3.02, the Servicer shall follow its
customary standards, policies and procedures in performing its duties as
Servicer. Without limiting the generality of the foregoing, the Servicer is
authorized and empowered by the Trustee to execute and deliver, on behalf
of itself, the Trust, the Certificateholders, the Trustee, or any of them,
any and all instruments of satisfaction or cancellation, or partial or full
release or discharge, and all other comparable instruments with respect to
such Receivables or to the Financed Vehicles securing such Receivables. If
the Servicer shall commence a legal proceeding to enforce a Receivable, the
Trustee (in the case of any Receivable other than a Purchased Receivable)
shall thereupon be deemed to have automatically assigned, solely for the
purpose of collection, such Receivable to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may
not enforce a Receivable on the ground that it shall not be a real party in
interest or a holder entitled to enforce such Receivable, the Trustee
shall, at the Servicer's expense and direction, take steps to enforce such
Receivable, including bringing suit in its name or the name of the
Certificateholders. The Trustee shall, upon written request of the
Servicer, furnish the Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
Section 3.02 Collection and Allocation of Receivable Payments.
(a) The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Receivables as and when
the same shall become due and shall follow such collection procedures as it
follows with respect to all comparable automotive receivables that it
services for itself or others. The Servicer shall allocate collections
between principal and interest in accordance with the customary servicing
procedures it follows with respect to all comparable automotive receivables
that it services for itself and others. The Servicer may in its discretion
waive any late payment charge or any other fees that may be collected in
the ordinary course of servicing a Receivable.
(b) The Servicer shall not agree to any alteration of the APR on any
Receivable or of the amount of the Scheduled Payments on a Precomputed
Receivable or the originally scheduled payments on Simple Interest
Receivables. The Servicer shall not grant rebates or adjustments on a
Receivable that modify the original due dates or amounts of the Scheduled
Payments on a Precomputed Receivable or the original due dates or amounts
of the originally Scheduled Payments on a Precomputed Receivable or the
originally due dates or amounts of the originally scheduled payments on a
Simple Interest Receivable; provided, however, that the Servicer may grant
one extension of one month in any six month period, provided that (1)
either such extensions granted to an Obligor over the term of a Receivable
do not extend the date for final payment by such Obligor thereunder beyond
the Final Scheduled Maturity Date or (2) if such extensions do result in a
final scheduled payment date under a Receivable that occurs after the Final
Scheduled Maturity Date, the Servicer shall [pay to the Trust the
additional interest payable by the related Obligor with respect to such
extensions] [repurchase any Receivable so affected or advance any such
deferred payments to the Trust on the Final Scheduled Distribution Date if
and to the extent any shortfalls in the Class A Distributable Amount or
Class B Distributable Amount occur on such date]. Section 3.03 Realization
Upon Receivables. On behalf of the Trust, the Servicer shall use its best
efforts, consistent with its customary servicing procedures, to repossess
or otherwise convert the ownership of the Financed Vehicle securing any
Receivable as to which the Servicer shall have determined eventual payment
in full is unlikely. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of automotive receivables, which may include selling the Financed
Vehicle at public or private sale. The Servicer shall be entitled to
recover all out-of-pocket expenses incurred by it in the course of
converting a Financed Vehicle into cash proceeds. The foregoing shall be
subject to the provision that, in any case in which the Financed Vehicle
shall have suffered damage, the Servicer shall not expend funds in
connection with the repair or the repossession of such Financed Vehicle
unless it shall determine in its discretion that such repair and/or
repossession will increase the Liquidation Proceeds by an amount greater
than the amount of such expenses.
Section 3.04 Physical Damage Insurance. The Servicer, in accordance
with its customary servicing procedures, shall require that each Obligor
shall have obtained physical damage insurance covering the Financed Vehicle
as of the execution of the Receivable.
Section 3.05 Maintenance of Security Interests in Financed Vehicles.
The Servicer shall, in accordance with its customary servicing procedures,
take such steps as are necessary to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle. The
Trustee hereby authorizes the Servicer to take such steps as are necessary
to re-perfect such security interest on behalf of the Trust in the event of
the relocation of a Financed Vehicle or for any other reason.
Section 3.06 Covenants of Servicer. The Servicer shall not release the
Financed Vehicle securing any Receivable from the security interest granted
by such Receivable in whole or in part except in the event of payment in
full by the Obligor thereunder or repossession, nor shall the Servicer
impair the rights of the Trust or the Certificateholders in such
Receivables, nor shall the Servicer increase the number of scheduled
payments due under a Receivable.
Section 3.07 Purchase of Receivables Upon Breach. The Servicer or the
Trustee shall inform the other party and the Company promptly, in writing,
upon the discovery of any breach pursuant to Section 3.02, 3.05 or 3.06
that materially and adversely affects the Certificateholders' interests in
any Receivable. Unless such breach shall have been cured by the last day of
the second Collection Period following such discovery (or, at the
Servicer's election, the last day of the first following Collection
Period), the Servicer shall purchase, as of such last day, any Receivable
that is materially and adversely affected by such breach. In consideration
of the purchase of any such Receivable pursuant to either of the two
preceding sentences, the Servicer shall remit the Purchase Amount to the
Collection Account in the manner specified in Section 5.04. For purposes of
this Section 3.07, the Purchase Amount shall consist in part of a release
by the Servicer of all rights of reimbursement with respect to Outstanding
Precomputed Advances or Outstanding Simple Interest Advances on the
Receivable. The sole remedy of the Trustee, the Trust or the
Certificateholders with respect to a breach pursuant to Section 3.02, 3.05
or 3.06 shall be to require the Servicer to repurchase Receivables pursuant
to this Section 3.07. The Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring
the repurchase of any Receivable pursuant to this Section.
Section 3.08 Servicing Fee. As compensation for servicing the
Receivables, the Servicer shall be entitled to receive the Servicing Fee on
each Distribution Date, from the Interest Distribution Amount available on
such Distribution Date, in an amount equal to the product of (a) one
twelfth, (b) the Servicing Rate and (c) the Pool Balance as of the first
day of the preceding Collection Period. The Servicer shall also be entitled
to all late fees, prepayment charges (including, in the case of a
Receivable that provides for payments according to the "Rule of 78s" and
that is prepaid in full, the difference between the Principal Balance of
such Receivable (plus accrued interest to the date of prepayment) and the
principal balance of such Receivable computed according to the "Rule of
78s") and other administrative fees or similar charges allowed by
applicable law with respect to the Receivables, collected (from whatever
source) on the Receivables, as and when collected, plus any reimbursement
pursuant to Section 8.02.
Section 3.09 Servicer's Certificate. Not later than 11:00 a.m. (New
York time) on each Determination Date, the Servicer shall deliver to the
Trustee, the Rating Agencies and the Company, a Servicer's Certificate
containing all information necessary to make the distributions on the
related Distribution Date pursuant to Section 5.05 for the related
Collection Period. Receivables to be purchased by the Servicer or to be
repurchased by the Company shall be identified by the Servicer by account
number with respect to such Receivable (as specified in Schedule I).
Section 3.10 Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Trustee, on or before
_____________ of each year, an Officers' Certificate, dated as of
___________ of preceding year, stating that (1) a review of the activities
of the Servicer during the preceding 12-month period (or such shorter
period as shall have elapsed since the Closing Date) and of its performance
under this Agreement has been made under such officers' supervision and (2)
to the best of such officers' knowledge, based on such review, the Servicer
has fulfilled all its obligations under this Agreement throughout such year
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and
status thereof. The Trustee shall send a copy of such certificate and the
report referred to in Section 3.11 to the Rating Agencies. A copy of such
certificate and the report referred to in Section 3.11 may be obtained by
any Certificateholder by a request in writing to the Trustee addressed to
the Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and to the Rating
Agencies, promptly after having obtained knowledge thereof, but in no event
later than 5 Business Days thereafter, written notice in an Officers'
Certificate of any event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 9.01(a) or (b).
Section 3.11 Annual Independent Certified Public Accountant's Report.
The Servicer shall deliver to the Trustee, on or before _____________ of
each year beginning _____________, 200_, a report of a firm of independent
certified public accountants, addressed to the Board of Directors of the
Servicer to the effect that such firm has examined the financial statements
of the Servicer, and issued its report thereon, and that such examination
(a) was made in accordance with generally accepted auditing standards and
accordingly included such tests of the accounting records and such other
auditing procedures as such firm considered necessary in the circumstances;
(b) included tests relating to automotive loans serviced for others in
accordance with the requirements of the Uniform Single Audit Program for
Mortgage Bankers (the "Program"), to the extent the procedures in such
Program are applicable to the servicing obligations set forth herein; and
(c) except as described in the report, disclosed no exceptions or errors in
the records relating to automobile, van and light duty truck loans serviced
for others that, in the firm's opinion, paragraph four of such Program
requires such firm to report.
The Report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 3.12 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Certificateholders access to
the Receivable Files in such cases where Certificateholders shall be
required by applicable statutes or regulations to review such
documentation. Access shall be afforded without charge, but only upon
reasonable request and during the normal business hours at the offices of
the Servicer. Nothing in this Section shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors, and the failure of the Servicer to
provide access to information as a result of such obligation shall not
constitute a breach of this Section.
Section 3.13 Servicer Expenses. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of independent accountants, taxes imposed
on the Servicer and expenses incurred in connection with distributions and
reports to Certificateholders.
Section 3.14 Appointment of Subservicer. The Servicer may at any time
appoint a subservicer to perform all or any portion of its obligations as
Servicer hereunder; provided, further, that the Servicer shall remain
obligated and shall be liable to the Trustee and the Certificateholders for
the servicing and administering of the Receivables in accordance with the
provisions hereof without diminution of such obligation and liability by
virtue of the appointment of such subservicer and to the same extent and
under the same terms and conditions as if the Servicer alone were servicing
and administering the Receivables. The fees and expenses of the subservicer
shall be as agreed between the Servicer and its subservicer from time to
time, and none of the Trust, the Trustee or the Certificateholders shall
have any responsibility therefor.
ARTICLE IV
Accounts
Section 4.01 Establishment of Trust Accounts.
(a) (1) The Servicer, for the benefit of the Certificateholders, shall
establish and maintain in the name of the Trustee an Eligible Deposit
Account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders.
(2) The Servicer, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Trustee a non-interest
bearing account (the "Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Certificateholders.
(b) Funds on deposit in the Collection Account shall be invested by
the Trustee in Eligible Investments selected in writing by the Servicer
(pursuant to standing instructions or otherwise); provided, however, that
it is understood and agreed that the Trustee shall not be liable for any
loss arising from such investment in Eligible Investments. Investment
Earnings on Eligible Investments held in the Collection Account shall be
for the benefit of the Servicer and shall be distributed on each
Distribution Date to the Servicer. Unless otherwise permitted by the Rating
Agencies, funds on deposit in the Collection Account shall be invested in
Eligible Investments that will mature (1) not later than the Business Day
immediately preceding the next Distribution Date or (2) on such next
Distribution Date if such investment is held in the trust department of the
institution with which the Collection Account and is then maintained and is
invested in a time deposit that is rated at least A-1 Standard & Poor's and
P-1 by ▇▇▇▇▇'▇. Funds deposited in the Collection Account upon the maturity
of any Eligible Investments on the day immediately preceding a Distribution
Date are not required to be invested overnight. If at any time the
Collection Account ceases to be an Eligible Deposit Account, the Trustee
(or the Servicer on its behalf) shall, within 10 Business Days (or such
longer period, not to exceed 30 calendar days, to which each Rating Agency
shall consent), establish a new Collection Account as an Eligible Deposit
Account and shall transfer any cash and/or investments to such new account.
(c) (1) The Servicer shall establish and maintain with the Trustee an
Eligible Deposit Account (the "Payahead Account"). The Payahead Account
shall not be property of the Trust.
(2) The Servicer shall, on or prior to each Distribution Date
(and prior to deposits to the Distribution Account) transfer from the
Collection Account to the Payahead Account all Payaheads as described
in Section 5.02 received by the Servicer during the related Collection
Period. Notwithstanding the foregoing and the first sentence of
Section 5.01, for so long as the Servicer is permitted to make monthly
remittances to the Collection Account pursuant to Section 5.01,
Payaheads need not be remitted to and deposited in the Payahead
Account, but instead may be remitted to and held by the Servicer. So
long as such condition is met, the Servicer shall not be required to
segregate or otherwise hold separate any Payaheads remitted to the
Servicer as aforesaid, but shall be required to remit Payaheads to the
Collection Account in accordance with Section 5.05(a).
(d) (1) Except as otherwise provided herein, the accounts established
and maintained pursuant to this Article IV shall be under the sole dominion
and control of the Trustee for the benefit of the Certificateholders. With
respect to any Account Property, the Trustee agrees, by its acceptance
hereof, that:
(A) Any Account Property that is held in deposit accounts
shall be held solely in Eligible Deposit Accounts (subject to the
last sentence of Section 4.01(b)); and, except as otherwise
provided herein, each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the Trustee, and
the Trustee shall have sole signature authority with respect
thereto;
(B) Any Account Property that constitutes Physical Property
shall be delivered to the Trustee in accordance with paragraph
(a) of the definition of "Delivery" and shall be held, pending
maturity or disposition, solely by the Trustee or a financial
intermediary (as such term is defined in Section 8-313(4) of the
UCC) acting solely for the Trustee;
(C) Any Account Property that is a book-entry security held
through the Federal Reserve System pursuant to federal book-entry
regulations shall be delivered in accordance with paragraph (b)
of the definition of "Delivery" and shall be maintained by the
Trustee, pending maturity or disposition, through continued
book-entry registration of such Account Property as described in
such paragraph; and
(D) Any Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Trustee in accordance
with paragraph (c) of the definition of "Delivery" and shall be
maintained by the Trustee, pending maturity or disposition,
through continued registration of the Trustee's (or its
custodian's or its nominee's) ownership of such security.
(2) The Servicer shall have the power, revocable by the Trustee,
to instruct the Trustee to make withdrawals and payments from the
trust accounts for the purpose of permitting the Servicer or the
Trustee to carry out its respective duties hereunder.
Section 4.02 Reserve Account.
(a) In order to effectuate the subordination provided for herein and
to assure that sufficient amounts to make required distributions to
Certificateholders will be available, the Servicer shall establish and
maintain an Eligible Deposit Account (the "Reserve Account"), bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Certificateholders. The Reserve Account will
include the money and other property deposited and held therein pursuant to
this Section 4.02, Section 4.04(a) and Section 5.05(e).
On or prior to the Closing Date, the Company shall deposit an amount
equal to the Reserve Account Initial Deposit into the Reserve Account. The
Reserve Account shall not be part of the Trust, but instead will be held
for the benefit of the Certificateholders. The Company hereby acknowledges
that all funds on deposit in the Reserve Account (and any investment
earnings thereon) are owned directly by it, and the Company hereby agrees
to treat the same as its assets (and earnings) for federal income tax and
all other purposes.
(b) In order to give effect to the subordination provided for herein
and to assure the availability of the amounts maintained in the Reserve
Account, the Company hereby sells, conveys and transfers to the Trustee, as
collateral agent, and its successors and assigns, the Reserve Account
Initial Deposit and all proceeds thereof and hereby pledges to the Trustee
as collateral agent, and its successors and assigns, all other amounts
deposited in or credited to the Reserve Account from time to time under
this Agreement, all Eligible Investments made with amounts on deposit
therein, all earnings and distributions thereon and proceeds thereof,
subject, however, to the limitations set forth below, and solely for the
purpose of securing and providing for payment of the Class A Distributable
Amount and the Class B Distributable Amount in accordance with Section
5.05(b) (all the foregoing, subject to the limitations set forth below, the
"Reserve Account 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. The Trustee hereby acknowledges such
transfer and accepts the trusts hereunder and shall hold and distribute the
Reserve Account Property in accordance with the terms and provisions of
this Section.
(c) Consistent with the limited purposes for which such trust is
granted, the amounts on deposit in the Reserve Account on each Distribution
Date shall be available for distribution as provided in Section 5.05, in
accordance with and subject to the following: if the amount on deposit in
the Reserve Account (after giving effect to all deposits thereto and
withdrawals therefrom on such Distribution Date) is greater than the
Specified Reserve Account Balance, the Trustee shall release and distribute
all such excess amounts to the Company. Upon any such distribution to the
Company, the Certificateholders will have no further rights in, or claims
to, such amounts.
(d) Funds on deposit in the Reserve Account shall be invested by the
Trustee, as collateral agent, in Eligible Investments selected in writing
by the Company. Unless otherwise permitted by the Rating Agencies, funds on
deposit in the Reserve Account shall be invested in Eligible Investments
that will mature (1) not later than the Business Day immediately preceding
the next Distribution Date or (2) on such next Distribution Date if such
investment is held in the trust department of the institution with which
the Reserve Account is then maintained and is invested in a time deposit
that is rated at least A-1 by Standard & Poor's and P-1 by Moody's. Funds
deposited in the Reserve Account upon the maturity of any Eligible
Investments on the day immediately preceding a Distribution Date are not
required to be invested overnight. If, at any time, the Reserve Account
ceases to be an Eligible Deposit Account, the Trustee as collateral agent
(or the Servicer on its behalf) shall, within 10 Business Days ((or such
longer period), not to exceed 30 calendar days, to which each Rating Agency
may consent), establish a new Reserve Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new
account.
(e) With respect to the Reserve Account Property, the Company, on
behalf of itself, its successors and assigns, and the Trustee agree that:
(1) Any Reserve Account Property that is held in deposit accounts
shall be held solely in the name of the Trustee, as collateral agent,
at an Eligible Institution. Each such deposit account shall be subject
to the exclusive custody and control of the Trustee, and the Trustee
shall have sole signature authority with respect thereto;
(2) Any Reserve Account Property that constitutes Physical
Property shall be delivered to the Trustee, as collateral agent, in
accordance with paragraph (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely by the Trustee,
as collateral agent, or a financial intermediary (as such term is
defined in Section 8-313(4) of the UCC) acting solely for the Trustee,
as collateral agent;
(3) Any Reserve Account Property that is a book-entry security
held through the Federal Reserve System pursuant to federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the Trustee, as
collateral agent, pending maturity or disposition, through continued
book-entry registration of such Reserve Account Property as described
in such paragraph; and
(4) Any Reserve Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (3) above shall be delivered to the Trustee, as collateral
agent, in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by the Trustee, as collateral
agent, pending maturity or disposition, through continued registration
of the Trustee's (or its custodian's or its nominee's) ownership of
such security, in its capacity as collateral agent.
Effective upon Delivery of any Reserve Account Property in the form of
Physical Property, book-entry securities or uncertificated securities, the
Trustee shall be deemed to have purchased such Reserve Account Property for
value, in good faith and without notice of any adverse claim thereto.
(f) The Company and the Servicer agree 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 in an Opinion of Counsel to the Company
delivered to the Trustee in order to perfect the interests created by this
Section and otherwise fully to effectuate the purposes, terms and
conditions of this Section. The Company shall:
(1) 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 maintain the
perfection of the Trustee's security interest; and
(2) file the necessary financing statements or amendments thereto
within five days, and promptly notify the Trustee of any such filing,
after the occurrence of any of the following: (A) any change in its
corporate name or any trade name; (B) any change in the location of
its chief executive office or principal place of business; and (C) any
merger or consolidation or other change in its identity or corporate
structure and promptly notify the Trustee of any such filings.
(g) The Trustee shall not enter into any subordination or
intercreditor agreement with respect to the Reserve Account Property.
(h) Following the payments in full of the Certificate Balance and of
all other amounts owing or to be distributed under this Agreement to
Certificateholders and the termination of the Trust, any amount remaining
on deposit in the Reserve Account shall be distributed to the Sellers.
[Section 4.03 Yield Supplement Account.
(a) On or prior to the Closing Date, the Company shall establish an
Eligible Deposit Account (the "Yield Supplement-Account"), bearing a
designation clearly indicating that the funds deposited therein are for the
benefit of the Certificateholders. On or prior to the Closing Date, the
Company, the Servicer and the Trustee shall enter into the Yield Supplement
Account Agreement and the Sellers shall deposit an amount equal to the
Yield Supplement Initial Deposit into the Yield Supplement Account. The
Yield Supplement Account shall not be part of the Trust, but instead will
be held for the benefit of the Certificateholders. The Company hereby
acknowledges that the Yield Supplement Initial Deposit and any investment
earnings thereon are owned directly by it, and the Company hereby agrees to
treat the same as its assets (and earnings) for federal income tax and all
other purposes.
(b) The Company hereby sells, conveys and transfers to Trustee, as
collateral agent, and its successors and assigns, the Yield Supplement
Initial Deposit and all proceeds thereof, and hereby pledges to the Trustee
as collateral agent, and its successors and assigns, all other amounts
deposited in or credited to the Trustee as collateral agent, and its
successors and assigns, all other amounts deposited in or credited to the
Yield Supplement Account from time to time under this Agreement, all
Eligible Investment made with amounts on deposit therein, all earnings and
distributions thereon, subject, however, to the limitations set forth
below.
(c) The amounts on deposit in the Yield Supplement Account on each
Distribution Date shall be available for distribution as provided in
Section 5.05; provided, however, that if the amount on deposit in the Yield
Supplement Account (after giving effect to all deposits thereto and
withdrawals therefrom on such Distribution Date) is greater than the Yield
Supplement Maximum Amount, the Trustee shall release and distribute such
excess amount to the Company. Upon any such distribution to the Company,
the Certificateholders will have no further rights in, or claims to, such
amounts.
(d) Following the payment in full of the Certificate Balance and of
all other amounts owing or to be distributed to Certificateholders under
this Agreement and the termination of the Trust, any amount remaining on
deposit in the Yield Supplement Account shall be distributed to the Company.]
ARTICLE V
Payments and Statements to Certificateholders
Section 5.01 Collections. The Servicer shall remit within two Business
Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables (other than
Purchased Receivables) and all Liquidation Proceeds. Notwithstanding the
foregoing, for so long as (a) ________ remains the Servicer, (b) no Event
of Default shall have occurred and be continuing and (c)(1) __________
maintains a short-term rating of at least A-1 by Standard & Poor's and P-1
by Moody's (and for five Business Days following a reduction in either such
rating) or (2) prior to ceasing daily remittances, the Rating Agency
Condition shall have been satisfied (and any conditions or limitations
imposed by the Rating Agencies in connection therewith are complied with),
the Servicer may remit all such payments and Liquidation Proceeds with
respect to any Collection Period to the Collection Account on a less
frequent basis, but in no event later than the Determination Date
immediately preceding each Distribution Date. For purposes of this Article
V, the phrase "payments by or on behalf of Obligors" shall mean payments
made with respect to the Receivables by Persons other than the Servicer or
the Company.
Section 5.02 Application of Collections. All collections for a
Collection Period shall be applied by the Servicer as follows: With respect
to each Receivable (other than a Purchased Receivable), payments by or on
behalf of the Obligor shall be applied first, in the case of Precomputed
Receivables, to reduce Outstanding Precomputed Advances as described in
Section 5.03(a) and, in the case of Simple Interest Receivables, to reduce
Outstanding Simple Interest Advances as described in Section 5.03(b). Next,
any excess shall be applied, in the case of Precomputed Receivables, to the
Scheduled Payment and, in the case of Simple Interest Receivables, any
remaining excess shall be added to the Payahead Balance and shall be
applied to prepay the Precomputed Receivable only if the sum of such excess
and the previous Payahead Balance shall be sufficient to prepay the
Receivable in full. Otherwise, and such remaining excess payment shall
constitute a Payahead and shall increase the Payahead Balance.
Section 5.03 Advances.
(a) As of the close of business on the last day of each Collection
Period, if the payments by or on behalf of an Obligor on a Precomputed
Receivable (other than a Purchased Receivable) shall be less than the
Scheduled Payment, the Payahead Balance, if any, with respect to such
Precomputed Receivable shall be applied by the Servicer to the extent of
the shortfall and such Payahead Balance shall be reduced accordingly. Next,
the Servicer shall advance any remaining shortfall (such amount a
"Precomputed Advance"), to the extent that the Servicer, at its sole
discretion, shall determine that such Precomputed Advance shall be
recoverable from the Obligor, the Purchase Amount or Liquidation Proceeds
with respect to such Receivable or proceeds of any other Precomputed
Receivables. Each such Precomputed Advance shall increase the aggregate
amount of Outstanding Precomputed Advances. Outstanding Precomputed
Advances shall be reduced by subsequent payments by or on behalf of the
Obligor, collections of Liquidation Proceeds in respect of Precomputed
Receivables or payments of the Purchase Amount in respect of Precomputed
Receivables.
If the Servicer shall determine that an Outstanding Precomputed
Advance with respect to any Precomputed Receivable shall not be recoverable
as aforesaid, the Servicer shall be reimbursed from any collections made on
other Precomputed Receivables in the Trust, and Outstanding Precomputed
Advances with respect to such Precomputed Receivable shall be reduced
accordingly.
(b) At the close of business on the last day of each Collection
Period, the Servicer shall advance an amount equal to the amount of
interest due on the Simple Interest Receivables at their respective APR's
for the related Collection Period (assuming the Simple Interest Receivables
pay on their respective due dates) minus the amount of interest actually
received on the Simple Interest Receivables during the related Collection
Period (such amount, a "Simple Interest Advance"). Each such Simple
Interest Advance shall increase the aggregate amount of Outstanding Simple
Interest Advances. If such calculation results in a negative number, an
amount equal to such negative number shall be paid to the Servicer and the
amount of Outstanding Simple Interest Advances shall be reduced by such
amount. In addition, in the event that a Simple Interest Receivable becomes
a Liquidated Receivable, Liquidation Proceeds with respect to such Simple
Interest Receivable attributable to accrued and unpaid interest thereon
(but not including interest for the then current Collection Period) shall
be paid to the Servicer to reduce Outstanding Simple Interest Advances, but
only to the extent of any current Outstanding Simple Interest Advances. The
Servicer shall not make any advance with respect to principal of a Simple
Interest Receivable.
Section 5.04 Additional Deposits. The Servicer shall deposit in the
Collection Account the aggregate Advances pursuant to Section 5.03. The
Servicer and the Company shall deposit or cause to be deposited in the
Collection Account the aggregate Purchase Amount with respect to Purchased
Receivables, and the Servicer shall deposit therein all amounts to be paid
under Section 11.02. The Servicer shall deposit the aggregate Purchase
Amount with respect to Purchased Receivables in the Collection Account when
such obligations are due, unless the Servicer shall not be required to make
daily deposits pursuant to Section 5.01.
Section 5.05 Deposits.
(a) On each Distribution Date, the Trustee shall cause the following
transfers to be made in immediately available funds in the amounts set
forth in the Servicer's Certificate for such Distribution Date:
(1) from moneys on deposit in the Yield Supplement Account or
otherwise paid by the Company to the Trustee pursuant to the Yield
Supplement Account Agreement to the Distribution Account, an amount
equal to the Yield Supplement Amount for such Distribution Date;
(2) from the Collection Account to the Distribution Account, the
entire amount then on deposit in the Collection Account; provided,
however, that in the event the Servicer is required to make deposits
to the Collection Account on a daily basis pursuant to Section 5.01,
the amount of funds transferred from the Collection Account to the
Distribution Account will include only those funds that were deposited
in the Collection Account for the Collection Period related to such
Distribution Date; and
(3) from the Payahead Account, or from the Servicer in the event
that the second and third sentences of Section 4.01(c)(2) are
applicable, to the Distribution Account, the aggregate amount of
previous Payaheads to be applied to Scheduled Payments on Precomputed
Receivables for the related Collection Period or prepayments for the
related Collection Period, pursuant to Sections 5.02 and 5.03, in the
amount set forth in the Servicer's Certificate delivered on the
related Determination Date. A single, net transfer may be made.
(b) On each Determination Date, the Servicer shall calculate the Total
Distribution Amount, Interest Distribution Amount, Principal Distribution
Amount, Yield Supplement Amount, the Class A Principal Distributable
Amount, Class A Interest Distributable Amount, Class B Principal
Distributable Amount and Class B Interest Distributable Amount and, based
on the Total Distribution Amount and the other amounts to be distributed on
such Distribution Date, determine the amounts distributable to Holders of
the Class A Certificates and the Class B Certificates.
(c) On each Distribution Date, the Trustee (based on the information
contained in the Servicer's Certificate delivered on the related
Determination Date pursuant to Section 3.09) shall distribute amounts on
deposit in the Distribution Account and, if applicable, the Reserve
Account, in the manner and priority set forth below:
(1) to the Servicer, from the Interest Distribution Amount, the
Servicing Fee and all unpaid Servicing Fees from prior Collection
Periods;
(2) to the Class A Certificateholders:
(A) from the Class A Percentage of the Interest Distribution
Amount (after payment of the Servicing Fee and except as provided
in the proviso to subsection (d)(1) below), the Class A Interest
Distributable Amount;
(B) from the Class A Percentage of the Principal
Distribution Amount, the Class A Principal Distributable Amount;
(3) To the Class B Certificateholders:
(A) from the Class B Percentage of the Interest Distribution
Amount (after payment of the Servicing Fee), the (Class B
Interest Distributable Amount; and
(B) from the Class B Percentage of the Principal
Distribution Amount, the Class B Principal Distributable Amount.
(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 and the rights of the
Servicer to receive the Servicing Fee (and any accrued and unpaid Servicing
Fees from prior Collection Periods) to the extent provided in this Section.
Such subordination shall be effected as follows, and all payments shall be
affected pursuant to clause (1) below prior to any payments pursuant to
clause (2):
(1) If the Class A Percentage of the Interest Distribution Amount
(after such Interest Distribution Amount has been reduced by Servicing
Fee payments) is less than the Class A Interest Distributable Amount
on any Distribution Date, the Class A Certificateholders shall be
entitled to receive distributions in respect of such deficiency first,
from the Class B Percentage of the Interest Distribution Amount;
second, if such amounts are insufficient, from amounts on deposit in
the Reserve Account; and third, if such amounts are insufficient, from
the Class B Percentage of the Principal Distribution Amount; provided,
however, that if the amount of Simple Interest Advances required to be
made for the Collection Period have not been paid by the Servicer or
withdrawn from the Reserve Account, any resultant shortfall shall be
allocated pro rata between the Class A Certificates and the Class B
Certificates and any portion of such shortfall allocable to the Class
A Certificates (and any Class A Interest Carryover Shortfalls
attributable thereto) shall be paid only from amounts that are or
become available in the Reserve Account after giving effect to any
deposit thereto on such day.
(2) If the Class A Percentage of the Principal Distribution
Amount is less than the Class A Principal Distributable Amount on any
Distribution Date, the Class A Certificateholders shall be entitled to
receive distribution in respect of such deficiency first, from the
Class B Percentage of the Principal Distribution Amount; second, if
such amounts are insufficient, from amounts on deposit in the Reserve
Account and third, if such amounts are insufficient, from the Class B
Percentage of the Interest Distribution Amount.
(e) On each Distribution Date, the Trustee shall distribute any excess
amounts remaining in the Distribution Account after making the
distributions described in clauses (c)(1) through (c)(3) above in the
following amounts and in the following order of priority: (1) to the
Reserve Account until the amount on deposit therein equals the Specified
Reserve Account Balance and (2) to the Company.
(f) Subject to Section 11.01 respecting the final payment upon
retirement of each Certificate, the Servicer shall instruct the Trustee on
each Distribution Date to distribute to each Certificateholder of record on
the preceding Record Date the interest and principal amounts to be
distributed to such Certificateholder on such Distribution Date. Such
distributions by the Trustee shall be made either (1) by wire transfer in
immediately available funds to the account of such Holder at a bank or
other entity having appropriate facilities thereof, provided that such
Holder holds Certificates with a minimum initial aggregate principal amount
of $1,000,000 and such Certificateholder has provided appropriate
instructions to the Servicer prior to such Distribution Date, or (2) by
check mailed to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
Section 5.06 Statements to Certificateholders. On each Determination
Date, the Servicer shall provide to the Trustee for the Trustee to forward
to each Certificateholder of record as of the most recent Record Date, a
statement setting forth the following information for the related
Collection Period as to each Class of Certificates to the extent
applicable:
(a) the amount of such distribution allocable to principal of each
class of Certificates;
(b) the amount of such distribution allocable to interest of each
class of Certificates;
(c) the Pool Balance as of the close of business on the last day of
the related Collection Period after giving effect to payments allocated to
principal reported under (1) above;
(d) the Class A Certificate Balance and the Class B Certificate
Balance as of the close of business on the last day of the related
Collection Period, after giving effect to payments allocated to principal
reported under (1) above;
(e) the amount of the Servicing Fee paid to the Servicer for the
related Collection Period;
(f) the amount, if any, of Class A Principal Carryover Shortfall,
Class A Interest Carryover Shortfall, Class B Principal Carryover Shortfall
and Class B Interest Carryover Shortfall, as applicable, on such
Distribution Date and any change in the Class A Principal Carryover
Shortfall, Class A Interest Carryover Shortfall, Class B Principal
Carryover Shortfall and Class B Interest Carryover Shortfall, as
applicable, from the preceding Distribution Date;
(g) the amount of Realized Losses, if any, with respect to the related
Collection Period.
(h) the amount otherwise distributable to Holders of the Class B
Certificates that is distributed to Holders of Class A Certificates on such
Distribution Date.
(i) the balance of the Reserve Account on such Distribution Date,
after giving effect to deposits thereto and withdrawals therefrom made on
such Distribution Date;
(j) the Yield Supplement Amount and the amount on deposit in the Yield
Supplement Account after giving effect to distributions on such date; and
(k) the aggregate Payahead Balance and the change in such balance from
the preceding Distribution Date.
Each amount set forth pursuant to subclauses (a), (b), (d) and (e)
above shall be expressed as a dollar amount per $1,000 of original
principal balance of Class A Certificate or Class B Certificate, as
applicable.
Section 5.07 Accounting and Tax Returns. The Trustee shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar
year basis and the accrual method of accounting and (b) deliver to each
Certificateholder such information as may be required by the Code and
applicable Treasury Regulations (including Form 1099) to enable each Holder
to prepare its federal and state income tax returns.
Section 5.08 Net Deposits. As an administrative convenience, unless
the Servicer is required to remit collections daily, the Servicer will be
permitted to make the deposit of collections on the Receivables, aggregate
Advances and Purchase Amounts for or with respect to each Collection Period
net of distributions to be made to the Servicer with respect to such
Collection Period. The Servicer, however, will account to the Trustee and
to the Certificateholders as if all deposits, distributions and transfers
were made individually.
ARTICLE VI
The Certificates
Section 6.01 The Certificates. The Certificates shall be issued in
fully registered form in minimum denominations of $1,000 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 an authorized
officer of the Trustee. Certificates bearing the manual or facsimile
signatures of signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trust, shall
be validly issued and entitled to the benefit of this Agreement,
notwithstanding the fact that such individuals or any of them 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 authentication and
delivery of such Certificates.
A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a
Certificate duly registered in such transferee's name pursuant to Section
6.03.
Section 6.02 Authentication of Certificates. Concurrently with the
conveyance of the Receivables to the Trust, the Trustee shall cause the
Certificates to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Company, signed by an
authorized Trust Officer, without further corporate action by the Company,
in authorized denominations. No Certificate shall entitle its Holder to any
benefit under this Agreement or be valid for any purpose unless there shall
appear on such Certificate a certificate of authentication, 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 6.03 Registration of Transfer and Exchange of Certificates.
The Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 6.07, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. Unless otherwise
specified in this Agreement, the Trustee shall be the initial Certificate
Registrar.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Trustee shall execute, authenticate and
deliver, in the name of the designated transferee or transferees, one or
more new Certificates in authorized denominations of a like aggregate
amount dated the date of authentication by the Trustee. At the option of a
Holder, Certificates may be exchanged for other Certificates of authorized
denominations of a like aggregate amount upon surrender at the Corporate
Trust Office of the Certificates to be exchanged.
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 such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer and
exchange shall be cancelled and subsequently disposed of by the Trustee.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
Section 6.04 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 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 has 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, 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 shall constitute
conclusive evidence of ownership of a beneficial interest in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.05 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 5.05 and for all other purposes
whatsoever, and neither the Trustee nor the Certificate Registrar shall be
bound by any notice to the contrary.
Section 6.06 Access to List of Certificateholders' Names and
Addresses. The Trustee shall furnish or cause to be furnished to the
Servicer, 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. If three or more Certificateholders, or one
or more Holders of Certificates evidencing no less than 25% of the
Certificate Balance apply in writing to the Trustee, and such application
states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or
under the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current
list of Certificateholders. 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 6.07 Maintenance of Office or Agency. The Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or
offices or agency 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 ___________________ as its office for such
purposes. The Trustee shall give prompt written notice to the Servicer and
to Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
Section 6.08 Book-Entry Certificates. The Class A Certificates, upon
original issuance, will be issued in the form of one or more typewritten
Certificates representing Book-Entry Certificates, to be delivered to the
Depository Trust Company, the initial Clearing Agency by or on behalf of
the Trust. The Class A Certificates shall be registered initially on the
Certificate Register in the name of Cede & Co. the nominee of the initial
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the
Certificates, except as provided in Section 6.10. Unless and until
definitive, fully registered Certificates (the "Definitive Certificates")
have been issued to such Certificate Owners pursuant to Section 6.10
(a) the provisions of this Section shall be in full force and effect;
(b) the Company, the Servicer, the Certificate Registrar and the
Trustee may deal with the Clearing Agency for all purposes (including the
making of distributions on the Class A Certificates) as the sole Holder of
such Certificates and shall have no obligation to the related Certificate
Owners;
(c) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section
shall control;
(d) the rights of such Certificate Owners shall be exercised only
through the Clearing Agency and shall 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. Unless and until Definitive Certificates are issued pursuant to
Section 6.10, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Class A Certificates to such
Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Holders of Class A Certificates
evidencing a specified percentage of the Class A Certificate Balance, the
Clearing Agency shall 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
Class A Certificates and has delivered such instructions to the Trustee.
Section 6.09 Notices to Clearing Agency. Whenever a notice or other
communication to Holders of the Class A Certificates is required under this
Agreement, unless and until Definitive Certificates have been issued to
such Certificate Owners pursuant to Section 6.10, the Trustee and the
Servicer shall give all such notices and communications specified herein to
be given to Holders of Class A Certificates to the Clearing Agency.
Section 6.10 Definitive Certificates. If (a) the Sellers advise the
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities under the Depository Agreement and
the Company or the Trustee are unable to locate a qualified successor, (b)
the Company at its option advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) after
the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than a majority of the aggregate
outstanding principal amount of the Book-Entry Certificates advise the
Trustee and the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best
interests of the Certificate Owners, then the Clearing Agency shall notify
all Certificate Owners and the Trustee of the occurrence of such event and
of the availability of Definitive Certificates evidencing the same. Upon
surrender to the Trustee of the typewritten Certificates representing the
Book-Entry Certificates by the Clearing Agency, accompanied by registration
instructions, the Trustee shall execute and authenticate the Definitive
Certificates in accordance with the instructions of the Clearing Agency.
None of the Company, the Certificate Registrar or the Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Certificates, the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder. The
Definitive Certificates may be printed, lithographed or engraved or
produced in any other manner that is reasonably acceptable to the Trustee,
as evidenced by its execution thereof.
[Section 6.11 Limitations on Transfer of the Class B Certificates.
(a) The Class B Certificates have not been and will not be registered
under the Securities Act will not be listed on any exchange. No transfer of
a Class B Certificate shall be made unless such transfer is made pursuant
to an effective registration statement under the Securities Act and any
applicable state securities laws or is exempt from the registration
requirements under said Act and such state securities laws. In the event
that a transfer is to be made in reliance upon an exemption from the
Securities Act and state securities laws, in order to assure compliance
with the Securities Act and such laws, the Holder desiring to effect such
transfer and such Holder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially the
forms set forth in Exhibit E (the "Transferor Certificate") and either
Exhibit F (the "Investment Letter") or Exhibit G (the "Rule 144A Letter").
Except in the case of a transfer as to which the proposed transferee has
provided a Rule 144A Letter, there shall also be delivered to the Trustee
an Opinion of Counsel that such transfer may be made pursuant to an
exemption from the Securities Act and state securities laws, which Opinion
of Counsel shall not be an expense of the Trust or Trustee; provided that
such Opinion of Counsel in respect of the applicable state securities laws
may be a memorandum of law rather than an opinion if such counsel is not
licensed in the applicable jurisdiction. The Company shall provide to any
Holder of a Class B Certificate and any prospective transferee designated
by any such Holder, information regarding the Class B Certificates and the
Receivables and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) under the Securities
Act for transfer of any such Class B Certificate without registration
thereof under the Securities Act pursuant to the registration exemption
provided by Rule 144A. Each Holder of a Class B Certificate desiring to
effect such a transfer shall, and does hereby agree to, indemnify the
Trust, the Trustees and the Company against any liability that may result
if the transfer is not so exempt or is not made in accordance with federal
and state securities laws.
(b) No transfer of a Class B Certificate shall be made unless the
Trustee shall have received a representation from the transferee of such
Class B Certificate, acceptable to and in form and substance satisfactory
to the Trustee, to the effect that such transferee is not an employee
benefit plan, trust or account (each a "Benefit Plan") subject to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code or
a Person acting on behalf of any such Benefit Plan or using assets of a
Benefit Plan to acquire Class B Certificates. For purposes of the preceding
sentence, such representation shall be deemed to have been made to the
Trustee by the transferee's (including an initial acquirer's) acceptance of
a Class B Certificate. Notwithstanding anything else to the contrary
herein, any proposed transfer of a Class B Certificate to or on behalf of a
Benefit Plan subject to ERISA or the Code without the delivery to the
Trustee of an Opinion of Counsel satisfactory to the Trustee shall be void
and of no effect. The Trustee shall be under no liability to any Person for
any registration of transfer of any Class B Certificate that is in fact not
permitted by this Section 6.11 or for making any payments due on such Class
B Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Trustee in accordance with the foregoing
requirements. The Trustee shall be entitled, but not obligated, to recover
from any Holder of a Class B Certificate that was in fact a Benefit Plan
subject to Section 406 of ERISA or Section 4975 of the Code, or a Person
acting on behalf of any such Benefit Plan at the time it became a Holder or
which subsequently became such a Benefit Plan or Person acting on behalf of
such a Benefit Plan, all payments made on such Class B Certificate at and
after either such time. Any payments so recovered by the Trustee shall be
paid and delivered by the Trustee to the last preceding Holder of such
Certificate that is not, and was not at the time it held such Certificate,
a Benefit Plan or Person acting on behalf of a Benefit Plan.
(c) The Trustee shall cause each Class B Certificate to contain a
legend stating that transfer of the Class B Certificates is subject to
certain restrictions and referring prospective purchasers of the Class B
Certificates to this Section 6.10 with respect to such restrictions.
(d) Unless otherwise set forth in this Agreement, no transfer of a
Class B Certificate or any interest therein shall be made unless prior to
such transfer the Holder of such Class B Certificate delivers to the
Sellers and the Trustee either a ruling of the Internal Revenue Service or
an Opinion of Counsel to the effect that the proposed transfer will not
result in the arrangement contemplated by this Agreement being treated as
an association taxable as a corporation under either the Code or the tax
laws of the State of New York.]
ARTICLE VII
The Company
Section 7.01 The Company's Representations. The Company makes the
following representations with respect to itself on which the Trustee is
deemed to have relied in accepting the Receivables in trust and executing
and authenticating the Certificates. The representations speak as of the
execution and delivery of this Agreement and as of the Closing Date and
shall survive the sale of the Receivables to the Trustee.
(a) Organization and Good Standing. The Company is duly organized and
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and has, the corporate power, authority and legal right to acquire,
own and sell the Receivables.
(b) Due Qualification. The Company is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) Power and Authority. The Company has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms;
the Company has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Trustee by it as part of the
Trust, and the Company shall have duly authorized such sale and assignment
to the Trustee by all necessary corporate action; and the execution,
delivery and performance of this Agreement shall have been duly authorized
by the Company by all necessary corporate action.
(d) Binding Obligation. This Agreement when executed and delivered by
the Company, shall constitute a legal, valid and binding obligation of the
Company enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and to general
principles of equity (whether applied in a proceeding at law or in equity).
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Company, or any material term of
any indenture, agreement or other instrument to which the Company is a
party or by which it is bound; or 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 pursuant to this
Agreement); or violate any law or, to the best of the Company's knowledge,
any order, rule or regulation applicable to the Company of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Company or its
properties.
(f) No Proceeding. There are no proceedings or investigations pending
or, to the Company's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Company or its properties:
(1) asserting the invalidity of this Agreement or the
Certificates;
(2) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement;
(3) seeking any determination or ruling that might materially and
adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, this Agreement or the
Certificates; or
(4) relating to the Company and that might materially and
adversely affect the federal income tax attributes of the Certificates.
Section 7.02 Corporate Existence. During the term of this Agreement,
the Company will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary
or appropriate to the proper administration of this Agreement and the
transactions contemplated hereby.
Section 7.03 Liabilities of the Company. The Company shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken and the representations and warranties made by the Company under
this Agreement.
Section 7.04 Merger or Consolidation of, or Assumption of the
Obligations of, the Company. Any Person: (a) into which the Company may be
merged or consolidated, (b) which may result from any merger or
consolidation to which the Company shall be a party or (c) which may
succeed to substantially all of the properties and assets of the Company,
which Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Company under this Agreement,
shall be the successor to the Company 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 made pursuant to Section
2.03 shall have been breached and no Event of Default, and no event which,
after notice or lapse of time, or both, would become an Event of Default
shall have happened and be continuing, (ii) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such consideration, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, (iii) the Rating Agency Requirement
shall have been satisfied with respect to such transaction and (iv) the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that, in the Opinion of such Counsel, either (A) 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)
no such action is necessary to preserve and protect such interest.
Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) above shall be conditions to the consummation of the
transactions referred to in clauses (a), (b) or (c) above.
Section 7.05 Limitation on Liability of the Company and Others. The
Company and any director, officer, employee or agent of the Company may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Company shall be under no obligation to
appear in, prosecute or defend any legal action that shall not be related
to its obligations under this Agreement and that in its opinion may involve
it in any expense or liability.
Section 7.06 The Company May Own Certificates. The Company and any
Affiliate thereof 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 Company or an Affiliate thereof, except as otherwise
provided herein.
ARTICLE VIII
The Servicer
Section 8.01 Representations of Servicer. The Servicer makes the
following representations on which the Trustee is deemed to have relied in
accepting the Receivables in trust and executing and authenticating the
Certificates. The representations speak as of the execution and delivery of
this Agreement and as of the Closing Date and shall survive the sale of the
Receivables to the Trustee.
(a) Organization and Good Standing. The Servicer is duly organized and
validly existing as a banking corporation in good standing under the laws
of the state of its incorporation, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and has, the corporate power, authority and legal right to acquire,
own, sell and service the Receivables and to hold the Receivable Files as
custodian on behalf of the Trustee.
(b) Due Qualification. The Servicer is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of property or the conduct of its business (including the servicing
of the Receivables as required by this Agreement) shall require such
qualifications.
(c) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly
authorized by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Servicer enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization and
similar laws nor or hereafter in effect relating to or affecting creditors'
rights generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof does not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Servicer, or any material term
of any indenture, agreement or other instrument to which the Servicer is a
party or by which it is bound; or 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); or
violate any law or, to the best of the Servicer's knowledge, any order,
rule or regulation applicable to the Servicer of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Servicer or its
properties.
(f) No Proceedings. There are no proceedings or investigations pending
or, to the Servicer's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its properties:
(1) asserting the invalidity of this Agreement or the
Certificates;
(2) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement;
(3) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations
under, or the validity of enforceability of, this Agreement or the
Certificates; or
(4) relating to the Servicer and which might materially and
adversely affect the federal income tax attributes of the
Certificates.
Section 8.02 Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement.
The Servicer shall defend, indemnify and hold harmless the Trustee,
the Trust and the Certificateholders from and against any and all costs,
expenses, losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership or operation by the Servicer or any
Affiliate thereof of a Financed Vehicle.
The Servicer shall indemnify, defend and hold harmless the Trustee,
the Trust and the Certificateholders from and against any and all costs,
expenses, losses, damages, claims, and liabilities to the extent that such
cost, expense, loss, claim, damage, or liability arose out of, or was
imposed upon any such Person through, the negligence, wilful misfeasance or
bad faith of the Servicer in the performance of its duties under this
Agreement or by reason of reckless disregard of its obligations and duties
under this Agreement.
For purposes of this Section, in the event of the termination of the
rights and obligations of _________ (or any successor thereto pursuant to
Section 8.03) as Servicer pursuant to Section 9.01, or a resignation by
such Servicer pursuant to this Agreement, such Servicer shall be deemed to
be the Servicer pending appointment of a successor Servicer (other than the
Trustee) pursuant to Section 9.02.
Indemnification under this Section shall survive the resignation or
removal of the Trustee or the termination of this Agreement and shall
include reasonable fees and expenses of counsel and expenses of litigation.
If the Servicer shall have made any indemnity payments pursuant to this
Section and the recipient thereafter collects any of such amounts from
others, such Person shall promptly repay such amounts to the Servicer,
without interest.
Section 8.03 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person: (a) into which the Servicer may be
merged or consolidated, (b) which may result from any merger or
consolidation to which the Servicer shall be a party, or (c) which may
succeed to substantially all of the properties and assets of the Servicer,
which Person in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Servicer hereunder, shall be
the successor to the Servicer under this Agreement without further act on
the part of any of the parties to this Agreement; provided, however, that
(i) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default shall have happened and be continuing, (ii) the
Servicer shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section and
that all conditions precedent provided for in this Agreement relating to
such transaction have been complied with, (iii) the Rating Agency Condition
shall have been satisfied with respect to such transaction and (iv) the
Servicer shall have delivered to the Trustee an Opinion of Counsel stating
that, in the Opinion of such Counsel, either: (A) 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)
no such action is necessary to preserve and protect such interest.
Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (i), (ii),
(iii) and (iv) 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 Servicer and Others. Neither
the Servicer nor any of its directors, officers, employees or agents shall
be under any liability to the Trustee, 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 or for
errors in judgment; provided, however, that this provision shall not
protect the 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 Servicer and any
director, officer, employee or agent of the 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 Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action that
shall not be related to its duties as Servicer hereunder and that in its
opinion may involve it in any expense or liability; provided, however, that
the Servicer may undertake any reasonable action that it deems necessary or
desirable with respect to this Agreement and the rights and duties of the
parties to this Agreement and the interests of the Certificateholders under
this Agreement.
ARTICLE IX
Default
Section 9.01 Events of Default. The occurrence and continuation of any
of the following events shall constitute an "Event of Default" for purposes
of this Agreement:
(a) Any failure by the Servicer to deliver to the Trustee any proceeds
or payment required to be so delivered under the terms of the Certificates
and this Agreement that shall continue unremedied for a period of three
Business Days after discovery of such failure by an officer of the Servicer
or after written notice of such failure is received by the Servicer from
the Trustee or Holders of Certificates evidencing not less than 25% of the
Certificate Balance; or
(b) Failure by the Servicer or the Company, as the case may be, duly
to observe or to perform in any material respect any other covenants or
agreements of the Servicer or the Company (as the case may be) set forth in
the Certificates or in this Agreement, which failure shall (1) materially
and adversely affect the rights of Certificateholders and (2) continue
unremedied for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
(A) to the Servicer or the Company (as the case may be) by the Trustee or
(B) to the Servicer or the Company (as the case may be) and to the Trustee
by the Holders of Certificates evidencing not less than 25% of the
Certificate Balance; or
(c) The entry of a decree or order by court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator for the Servicer in any insolvency,
readjustment of debt, marshaling 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 60 consecutive days; or
(d) The consent by the Servicer to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to substantially all of its property; or the
admission by the Servicer in writing of its inability to pay its debts
generally as they become due, the filing by the Servicer of a petition to
take advantage of any applicable insolvency or reorganization statute, the
making by the servicer of an assignment for the benefit of its creditors,
or the voluntary suspension by the Servicer of payment of its obligations;
If an Event of Default shall have occurred and for as long as such
Event of Default continues unremedied, either the Trustee or the Holders of
Certificates evidencing not less than a majority of the Certificate
Balance, by notice given in writing to the Servicer (and to the Trustee if
given by Certificateholders) may terminate all of the rights and
obligations (other than the obligations set forth in Section 8.02) of the
Servicer under this Agreement. On or after the receipt by the Servicer of
such written notice, all authority and power of the 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 or such successor Servicer as may be appointed under Section 9.02;
and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate
to effect the purposes of such notice of termination, whether to complete
the transfer and endorsement of the Receivables and related documents, or
otherwise. The predecessor Servicer shall cooperate with the successor
Servicer and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this
Agreement, including the transfer to the successor Servicer for
administration by it of all cash amounts that shall at the time be held by
the predecessor Servicer for deposit, or shall thereafter be received with
respect to any Receivable. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with transferring the Receivable
Files to the successor Servicer and amending this Agreement to reflect the
succession of such successor Servicer pursuant to this Section shall be
paid by the predecessor Servicer upon presentation of reasonable
documentation of such costs and expenses. Upon receipt of notice of the
occurrence of an Event of Default, the Trustee shall give notice thereof to
the Rating Agencies.
Section 9.02 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of termination pursuant to
Section 9.01 or the Servicer's resignation in accordance with the terms of
this Agreement, the predecessor Servicer shall continue to perform its
functions as Servicer under this Agreement, in the case of termination,
only until the date specified in such termination notice or, if no such
date is specified in a notice of termination, until receipt of such notice
and, in the case of resignation, until the earlier of: (1) the date that is
45 days after the date of delivery to the Trustee of written notice of such
resignation (or written confirmation of such notice) in accordance with the
terms of this Agreement and (2) the date upon which the predecessor
Servicer shall become unable to act as Servicer, as specified in the notice
of resignation and accompanying Opinion of Counsel. In the event of the
Servicer's termination hereunder, the Trustee shall appoint a successor
Servicer, and the successor Servicer shall accept its appointment by a
written assumption in form acceptable to the Trustee. In the event that a
successor Servicer has not been appointed at the time when the predecessor
Servicer has ceased to act as Servicer in accordance with this Section, the
Trustee, without any further action, shall automatically be appointed the
successor Servicer and shall be entitled to the Servicing Fee.
Notwithstanding the above, the Trustee shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, any
established institution having a net worth of not less than $100,000,000
and whose regular business includes the servicing of automotive receivables
as the successor to the Servicer under this Agreement.
(b) Upon appointment, the successor Servicer (including the Trustee
acting as successor Servicer) shall be the successor in all respects to the
predecessor Servicer and shall be subject to all the responsibilities,
duties and liabilities arising thereafter relating thereto placed on the
predecessor Servicer and shall be entitled to the Servicing Fee and all of
the rights granted to the predecessor Servicer by the terms and provisions
of this Agreement.
Section 9.03 Repayment of Advances. The Servicer, if it resigns or is
removed pursuant to the terms of this Agreement, shall be entitled to
receive reimbursement for Outstanding Precomputed Advances and Outstanding
Simple Interest Advances made by it pursuant to Sections 5.03 and 5.04.
Section 9.04 Notification of Certificateholders. Upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article
IX, the Trustee shall give prompt written notice thereof to the
Certificateholders and to the Rating Agencies.
Section 9.05 Waiver of Past Defaults. The Holders of Certificates
evidencing not less than a majority of the Certificate Balance may, on
behalf of all Certificateholders, waive any default by the Servicer in the
performance of its obligations hereunder and its consequences, except a
default in making any required deposits to or payments from the trust
accounts in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of 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 X
The Trustee
Section 10.01 Duties of Trustee.
(a) The Trustee, both prior to and after the occurrence of an Event of
Default, shall undertake to perform such duties as are specifically set
forth herein. If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Agreement
and 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 such
person's own affairs; provided, however, that if the Trustee shall assume
the duties of the Servicer pursuant to Section 9.02, the Trustee in
performing such duties shall use the degree of skill and attention
customarily exercised by a servicer with respect to automobile receivables
that it services for itself or others.
(b) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement; provided,
however, that the Trustee shall examine such certificates and opinions to
determine whether or not they conform to the requirements of this
Agreement.
(c) The Trustee shall take and maintain custody of the Schedule of
Receivables included as an exhibit to this Agreement and shall retain all
Servicer's Certificates identifying Receivables that become Purchased
Receivables or Liquidated Receivables.
(d) The Trustee shall not be liable for 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 25%
of the Certificate Balance 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.
(e) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent actions, its own negligent
failure to act or its own bad faith or willful misconduct; provided,
however, that:
(1) this paragraph does not limit the effect of clause (d) of
this Section; and
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trustee Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(f) No provision of this Agreement shall require the Trustee 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 shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(g) Except for actions expressly authorized by this Agreement, the
Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or to impair the value
of any Receivable.
Section 10.02 Certain Matters Affecting Trustee. Except as otherwise
provided in Section 10.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in any such document.
(b) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters or relating to this Agreement or the
Certificates shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it under
this Agreement in good faith and in accordance with such advice or opinion
of such 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 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 reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; however, nothing
contained in this Agreement shall relieve the Trustee of its obligation,
upon the occurrence of an Event of Default (that shall not have been cured
or waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct of that person's own affairs.
(d) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith which it believes to be authorized or within
its rights or powers conferred upon it by this Agreement; provided, that
such conduct does not constitute willful misconduct, bad faith or
negligence on the part of the Trustee.
(e) The Trustee may execute any of the trusts or powers or perform any
duties hereunder either directly or by or through agents or attorneys or a
custodian.
Section 10.03 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 Company or the Servicer, as the case may be, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than the certificate of
authentication on the Certificates), or of any Receivable or related
document. The Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any
Receivable, or the perfection and priority of any security interest created
by any Receivable in any Financed Vehicle 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 and ownership of any Financed Vehicle; the existence
and enforceability of any insurance thereon; the existence and contents of
any Receivable or any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or of any intervening assignment;
the completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Company or the Servicer with any warranty
or representation made under this Agreement or in any related document or
the accuracy of any such warranty or representation before receipt of
notice or other discovery of any breach thereof; or any action of the
Servicer taken in the name of the Trustee.
Section 10.04 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 Company and the Servicer in banking
transactions with the same rights that it would have if it were not Trustee.
Section 10.05 Trustee's Fees and Expenses. The Company shall pay to
the Trustee, and the Trustee shall be entitled to receive as compensation
for its services hereunder, such fees as have been separately agreed upon
before the date hereof between the Company and the Trustee, and the Trustee
shall be entitled to reimbursement by the Company for its reasonable
expenses under this Agreement, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and
counsel as the Trustee may employ in connection with the exercise and
performance of its rights and duties under this Agreement, except any such
expenses and fees that may arise from the Trustee's negligence, willful
misfeasance or bad faith or that is the responsibility of
Certificateholders under this Agreement.
Section 10.06 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; 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 $50,000,000 and subject to supervision or examination
by federal or state authorities; and having (or having a parent that has) a
rating of at least Baa3 by Moody's. If such corporation shall publish
reports of condition at least annually pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 10.07.
Section 10.07 Resignation or Removal of Trustee. The Trustee may
resign at any time and be discharged from the trusts hereby created by
giving written notice thereof to the Servicer. Upon receiving such notice
of resignation, the Servicer shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee.
If no successor Trustee 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 10.06 and shall fail to resign after written
request therefor by the Servicer, 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 Servicer may remove the Trustee. If the Servicer
shall remove the Trustee under the authority of the immediately preceding
sentence, the Servicer 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 shall pay all fees 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 shall
not become effective until acceptance of appointment by the successor
Trustee pursuant to Section 10.08. The Servicer shall provide notice of any
resignation or removal of the Trustee to each of the Rating Agencies.
Section 10.08 Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.07 shall execute, acknowledge and deliver to the
Servicer and to its predecessor Trustee an instrument accepting its
appointment as successor Trustee 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 deliver to the
successor Trustee all documents and statements and monies held by it under
this Agreement; and the Servicer and the predecessor Trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor
Trustee all such rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall
be eligible pursuant to Section 10.06.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section, the Servicer shall mail notice thereof to all Certificateholders
and to the Rating Agencies. If the Servicer shall fail to mail such notice
within 10 days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense
of the Servicer.
Section 10.09 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,
that such corporation is eligible to serve as Trustee pursuant to Section
10.06, without the execution or filing of any instrument or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee shall mail notice of any such merger or
consolidation to the Rating Agencies.
Section 10.10 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 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, such powers, duties,
obligations, rights and trusts as the Servicer and the Trustee may consider
necessary or desirable. If the Servicer shall not have joined in any such
appointment within 15 days after the receipt by it of a request to do so,
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 10.06
and no notice of the appointment of any co-trustee or separate trustee
shall be required pursuant to Section 10.08.
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 any such separate trustee or co-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, 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 Servicer and the Trustee acting jointly may at any time accept
the resignation of or remove any separate trustee or co-trustee;
(d) The execution, delivery and performance by the Trustee of this
Agreement (i) shall not violate any provision of any law governing the
banking and trust powers of the Trustee or, to the best of the Trustee's
knowledge, any order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable to the Trustee or any of its assets, (ii)
shall not violate any provision of the corporate charter or bylaws of the
Trustee and (iii) shall 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 shall not require the authorization, consent, 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.
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. 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 a copy thereof given to the 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 co-trustee or separate trustee.
Section 10.11 Representations and Warranties of Trustee. The Trustee
shall make the following representations and warranties, on which the
Company and Certificateholders shall be deemed to rely:
(a) The Trustee is a banking corporation 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 and deliver, and to perform its obligations under, this Agreement,
and shall have taken all necessary action to authorize the execution and
delivery of, and the performance of its obligations under, this Agreement.
(c) This Agreement has been duly executed and delivered by the Trustee
and shall constitute the legal, valid and binding obligation of the
Trustee, subject to applicable bankruptcy, insolvency, reorganization and
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally and to general principles of equity (whether applied in a
proceeding at law or in equity).
ARTICLE XI
Termination
Section 11.01 Termination of the Trust.
(a) The respective obligations and responsibilities of the Company,
the Servicer and the Trustee hereunder and the Trust created hereby shall
terminate upon the earlier to occur of (1) the payment to
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 and (2) the time provided in Section 11.02; provided, however, that
in no event shall the trust created by this Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Senator from the State of New
York, living on the date of this Agreement. The Servicer shall promptly
notify the Trustee of any prospective termination pursuant to this Section.
(b) Except as provided in Section 11.01(a), neither the Company nor
any Certificate Owner shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which Certificateholders shall surrender their
Certificates to the Trustee for payment of the final distribution and
cancellation of the Certificates, shall be given by the Trustee by letter
to Certificateholders mailed not earlier than the 15th day and not later
than the 25th day of the calendar month immediately preceding the calendar
month in which such final Distribution Date shall occur, stating (1) the
Distribution Date upon which final payment of the Certificates will be made
upon presentation and surrender of the Certificates at the office of the
Trustee therein designated, (2) the amount of such final payment and (3)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Trustee therein specified. The Trustee
shall give such notice to the Certificate Registrar (if other than the
Trustee) at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.05.
In the event that all of the Certificateholders shall not have
surrendered their Certificates for cancellation within six months after the
date specified in the above mentioned written notice, the Trustee shall
give a second written notice to the remaining Certificateholders requesting
that such Certificateholders surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within one year
after such second notice all of the Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after
exhaustion of such remedies shall be distributed by the Trustee to the
Company.
Section 11.02 Optional Purchase of All Receivables. On the last day of
any Collection Period as of which the Pool Balance shall be less than or
equal to 10% of the Cutoff Date Pool Balance, the Servicer shall have the
option to purchase the corpus of the Trust; provided, however, that the
Servicer may not effect any such purchase if at such time the rating of the
Servicer's long-term debt obligations is less than Baa3 by Moody's, unless
the Trustee shall have received an Opinion of Counsel to the effect that
such purchase would not constitute a fraudulent conveyance. To exercise
such option, the Servicer shall deposit an amount into the Collection
Account pursuant to Section 5.04 equal to the aggregate Purchase Amount for
the Receivables (including defaulted Receivables), plus the appraised value
of any other property held by the Trust, such value to be determined by an
appraiser mutually agreed upon by the Servicer and the Trustee. The
Servicer thereafter shall succeed to all interests in and to the Trust.
ARTICLE XII
Miscellaneous Provisions
Section 12.01 Amendment. This Agreement may be amended by the Company,
the Servicer and the Trustee, without the consent of the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions
to, or changing in any manner or eliminating any provision in, this
Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel delivered to the Trustee, adversely
affect in any material respect the interests of any Certificateholder.
This Agreement may also be amended from time to time by the Company,
the Servicer and the Trustee with the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate
Balance, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall (a) except as otherwise provided in
the first paragraph of this Section, increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
the Receivables or distributions that are required to be made on any
Certificate or (b) reduce the aforesaid percentage of the Certificate
Balance required to consent to any such amendment without the consent of
the Holders of all Certificates then outstanding.
Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder and the Rating Agencies.
It shall not be necessary for the consent of Certificateholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement)
and of evidencing the authorization of any action by Certificateholders
shall be subject to such reasonable requirements as the Trustee may
prescribe.
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 and the Opinion of Counsel referred to in Section 12.02(i). The
Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 12.02 Protection of Title to Trust.
(a) The Company and the Servicer shall execute and file such financing
statements and cause to be executed and filed such continuation statements,
all in such manner and in such places as may be required by law fully to
preserve, maintain and protect the interest of the Certificateholders and
the Trustee in the Receivables and in the proceeds thereof. The Company and
the Servicer 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) Neither the Company nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might
make any financing statement or continuation statement filed in accordance
with paragraph (a) above seriously misleading within the meaning of Article
9 of the UCC, unless the Company or the Servicer shall have given the
Trustee at least five days' prior written notice of such change and shall
have promptly filed appropriate amendments to all previously filed
financing statements or continuation statements.
(c) The Company and the Servicer shall have an obligation to give the
Trustee at least 60 days' prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement, and shall promptly file any such amendment or new
financing statement. The Servicer shall at all times maintain its principal
executive office and each office from which it shall service Receivables
within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (1) the reader
thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each)
and (2) reconciliation between payments or recoveries on (or with respect
to) each Receivable and the amounts from time to time deposited in the
Distribution Account and Payahead Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, the
Servicer's master computer records (including any back-up archives) that
refer to a Receivable shall indicate clearly the interest of the Trust in
such Receivable and that such Receivable is owned by the Trustee.
Indication of the Trustee's ownership of a Receivable shall be deleted from
or modified on the Servicer's computer systems when, and only when, such
Receivable shall have been paid in full or repurchased.
(f) If at any time a Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in
automotive receivables to, any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, lender
or other transferee computer tapes, records or print-outs (including any
restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable
has been sold and is owned by the Trustee.
(g) The Servicer shall permit the Trustee and its agents to inspect,
audit and make copies of and abstracts from the Servicer's records
regarding any Receivable at any time during normal business hours upon
reasonable notice.
(h) Upon request, the Servicer shall furnish to the Trustee, within
five Business Days, a list of all Receivables (by contract number and name
of Obligor) then held as part of the Trust, together with a reconciliation
of such list to the Schedule of Receivables and to each of the Servicer's
Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee, promptly after the
execution and delivery of this Agreement and, if required pursuant to
Section 12.01, of each amendment hereto, an Opinion of Counsel stating
that, in the opinion of such Counsel, either (A) all financing statements
and continuation statements 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 referring to prior
Opinions of Counsel in which such details are given, or (B) no such action
is necessary to preserve and protect such interest.
(j) The Company shall, to the extent required by applicable law, cause
the Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities
Exchange Act of 1934 within the time periods specified in such sections.
Section 12.03 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 12.04 Limitation on Rights of Certificateholders.
(a) 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.
(b) No Certificateholder shall have any right to vote (except as
provided in Section 9.05 or 12.01) or in any manner otherwise control the
operation and management of the Trust or the obligations of the parties to
this Agreement; nor shall any provision in this Agreement or contained in
the Certificates 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.
(c) No Certificateholder shall have any right to institute any suit,
action or proceeding in equity or at law upon or under or with respect to
this Agreement, unless: (1) such Holder previously shall have given to the
Trustee written notice of a continuing Event of Default; (2) the Holders of
Certificates evidencing not less than 25% of the Certificate Balance 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 the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or
thereby; (3) the Trustee, for 60 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; (4) during such 60-day period no
request or waiver inconsistent with such written request shall have been
given to the Trustee by Holders representing a majority of the Certificate
Balance. It is understood and intended that no one or more
Certificateholders shall have any right in any manner whatever by virtue
of, or by availing of, any provisions of this Agreement to affect, disturb
or prejudice the rights of any other Certificateholders, 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.
Section 12.05 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES UNDER THIS AGREEMENT SHALL DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.06 Notices. All demands, notices and communications upon or
to the Company, the Servicer, the Trustee or the Rating Agencies 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 Company, to ____________, Attention:
____________; (b) in the case of the Servicer, to ________________________,
Attention: ____________; (c) in the case of the Trustee, at the Corporate
Trust Office; (d) in the case of Moody's, to ▇▇▇▇▇'▇ Investor Service,
Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and (e) in the case of
Standard & Poor's, to Standard & Poor's Ratings Group, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇. Any notice 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. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder shall receive such notice.
Section 12.07 Severability of Provisions. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 12.08 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.04 and 8.03 and as
provided in the provisions of this Agreement concerning the resignation of
the Servicer, this Agreement may not be assigned by the Company or the
Servicer without the prior written consent of the Trustee and the Holders
of Certificates evidencing not less than 66% of the Certificate Balance.
Section 12.09 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 12.10 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Company, the Servicer, the
Trustee and the Certificateholders, and nothing in this Agreement, whether
express or implied, shall be construed to give any other Person any legal
or equitable right, remedy or claim in respect of the Trust or under or in
respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 12.11 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
IN WITNESS WHEREOF, the Company, the 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.
[GS Mortgage Securities Corp.],
as Company
By: ________________________________
Name:
Title:
___________________________________,
as Servicer
By: ________________________________
Name:
Title:
___________________________________,
as Trustee
By: ________________________________
Name:
Title:
SCHEDULE I
Schedule of Receivables
[to be delivered on the Closing Date]
SCHEDULE II
Location of Receivables Files
[To be provided at the Closing Date]
A-7
EXHIBIT A
Form Of Class A Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CLASS A
CERTIFICATE WILL BE MADE IN INSTALMENTS AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A CERTIFICATE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NUMBER $
R- CUSIP NO.
[ ] AUTO RECEIVABLES TRUST 200_-_
___% ASSET BACKED CERTIFICATE, CLASS A
evidencing a fractional undivided interest in the Trust (as defined
below), the property of which includes a pool of motor vehicle instalment
loan contracts and motor vehicle retail instalment sale contracts
(collectively, the "Motor Vehicle Instalment Contracts") secured by new and
used automobiles, vans and light duty trucks.
(This Class A Certificate does not represent an interest in, or
obligation of, [GS Mortgage Securities Corp.] or any of its affiliates,
except to the extent described below).
THIS CERTIFIES THAT ________________________ is the registered owner
of ____________ DOLLARS nonassessable, fully-paid, fractional undivided
interest in [ ] Auto Receivables Trust 200_-_ (the "Trust") formed pursuant
to the Pooling and Servicing Agreement dated as of ____________, (the
"Agreement"), among [GS Mortgage Securities Corp.] (the "Company"),
___________, as servicer (in such capacity, the "Servicer") and
____________, a ____________ banking association, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement.
This certificate is one of a duly authorized series of Certificates,
designated as the __% Asset Backed Certificates, Class A (herein called the
"Class A Certificates"), all issued under the Agreement, to which Agreement
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Company, the Servicer, the Trustee and
Holders of the Certificates. The Class A Certificates are subject to all
the terms of the Agreement.
The property of the Trust includes a pool of Motor Vehicle Instalment
Contracts secured by new and used automobiles, vans and light duty trucks
(collectively, the "Receivables"), all monies due under such Receivables on
or after the related Cut-off Date, in the case of Precomputed Receivables,
or received on or after the related Cut-off Date, in the case of Simple
Interest Receivables, security interests in the vehicles financed thereby,
certain bank accounts and the proceeds thereof, proceeds from claims on
certain insurance policies and all proceeds of the foregoing.
Under the Agreement, there will be distributed on the ___ day of each
month or, if such ___ day is not a Business Day, the next succeeding
Business Day (each, a "Distribution Date"), commencing on ________, to the
Person in whose name this Class A Certificate is registered at the close of
business on the ______ day of the month in which such Distribution Date
occurs (the "Record Date"), such Certificateholder's fractional undivided
interest in the amount to be distributed to Class A Certificateholders on
such Distribution Date.
It is the intent of the Company, the Trustee and the
Certificateholders that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Trust to be
treated as a grantor trust and the Certificates be treated as interests in
a grantor trust. The Company, the Servicer, the Trustee and each
Certificateholder or Certificate Owner, by its acceptance of a Certificate
or of a beneficial interest in a Certificate, respectively, agree to treat,
and to take no action inconsistent with the treatment of, the Certificates
for such tax purposes as interests in a grantor trust.
Distributions on this Class A Certificate will be made as provided in
the Agreement by the Trustee by wire transfer or check mailed to the Person
identified as the Holder of record thereof in the Certificate Register,
without the presentation or surrender of this Class A Certificate or the
making of any notation hereon, except that with respect to Class A
Certificates registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Except as otherwise provided in the 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 and only upon presentation and surrender of this Class A
Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Class A
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the 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.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class A Certificate to be duly
executed.
Date:
[ ] AUTO RECEIVABLES TRUST 200_-_
By:______________________, not in its
individual capacity but solely
as Trustee
By: ______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
Date:
_____________________________,
as Trustee
By: ________________________________
Authorized Signatory
[REVERSE OF CLASS A CERTIFICATE]
The Class A Certificates do not represent an obligation of, or an
interest in, the Company, the Servicer, the Trustee or any of their
respective affiliates, and no recourse may be had against such parties or
their assets except as expressly set forth or contemplated herein or in the
Agreement. In addition, this Class A Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment
to certain collections and recoveries with respect to the Receivables (and
certain other amounts), all as more specifically set forth herein and in
the Agreement. A copy of the Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Company and at such other places, if any,
designated by the Company.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company, the Servicer and the Trustee and the rights of the
Certificateholders at any time by the Company, the Servicer and the Trustee
with the consent of the Holders of Certificates evidencing not less than a
majority of the Certificate Balance. 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 Certificate and of any Class A Certificate
issued upon the transfer hereof or in exchange here for 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
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Class A Certificate is registerable
in the Certificate Register upon surrender of this Class A Certificate for
registration of transfer at the offices or agencies of the Certificate
Registrar maintained by the Trustee in the Borough of Manhattan, The City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class A Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under
the Agreement is ________________.
Except as provided in the Agreement, the Class A Certificates are
issuable only as registered certificates without coupons in a minimum
denomination of $1,000 and integral multiples of $1,000 in excess thereof.
As provided in the Agreement and subject to certain limitations therein set
forth, the Class A Certificates are exchangeable for new Class A
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge 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 none of
the Trustee, the Certificate Registrar or any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to
the Agreement and the disposition of all property held by the Trust. The
Servicer of the Receivables may at its option purchase the Trust property
at a price specified in the Agreement, and such purchase of the Receivables
and other property of the Trust will effect early retirement of the
Certificates; provided, however, that such right of purchase is exercisable
only as of the last day of any Collection Period as of which the Pool
Balance is less than or equal to 10% of the Cutoff Date Pool Balance.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee)
the within Class A Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing ________________________ to
transfer said Class A Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
____________________________*/ Signature Guaranteed:
____________________________*/
*/ 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. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company.
EXHIBIT B
Form of Class B Certificate
THIS CLASS B CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. THE TRANSFER OF
THIS CLASS B CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS
SET FORTH IN THE AGREEMENT UNDER WHICH THIS CLASS B CERTIFICATE IS ISSUED
(A COPY OF WHICH IS AVAILABLE FROM THE TRUSTEE UPON REQUEST), INCLUDING
RECEIPT BY THE TRUSTEE OF AN INVESTMENT LETTER IN WHICH THE TRANSFEREE
SHALL MAKE CERTAIN REPRESENTATIONS.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON
THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR ANY GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32)
OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS, TO A MATERIAL
EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
(COLLECTIVELY, A "PLAN") OR ANY PERSON INVESTING THE ASSETS OF A PLAN,
EXCEPT AS PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CLASS B
CERTIFICATE WILL BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS B CERTIFICATE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NUMBER $
R- CUSIP NO.
[ ] AUTO RECEIVABLES TRUST 200_-__
____% ASSET BACKED CERTIFICATE, CLASS B
evidencing a fractional undivided interest in the Trust (as defined below),
the property of which includes a pool of motor vehicle installment loan
agreements and motor vehicle retail installment sale contracts
(collectively, the "Motor Vehicle Installment Contracts") secured by new
and used automobiles, vans and light duty trucks.
(This Class B Certificate does not represent an interest in, or
obligation of, [GS Mortgage Securities Corp.] or any of its affiliates,
except to the extent described below.)
THIS CERTIFIES THAT ______________________________ is the registered
owner of ___________________ DOLLARS nonassessable, fully-paid fractional
undivided interest in [ ] Auto Receivables Trust 200_-(the "Trust") form
pursuant to a Pooling and Servicing Agreement dated as of _________ (the
"Agreement"), among [GS Mortgage Securities Corp.] (the "Company"),
_______, as servicer (in such capacity, the "Servicer") and _______, a
_______ banking association, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the
extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement.
This Certificate is one of a dully authorized series of Certificates,
designated as the ___% Asset Backed Certificates, Class B herein called the
"Class B Certificates"), all issued under the Agreement, to which Agreement
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Company, the Servicer, the Trustee and
Holders of the Certificates. The Class B Certificates are subject to all
the terms of the Agreement.
The property of the Trust includes a pool of Motor Vehicle Installment
Contracts secured by new and used automobiles, vans and light duty trucks
(collectively, the "Receivables"), all monies due under such Receivables on
or after _____, in the case of Precomputed Receivables, or received on or
after ______, in the case of Simple Interest Receivables, security
interests in the vehicles financed thereby, certain bank accounts and the
proceeds thereof, proceeds from claims on certain insurance policies and
all proceeds of the foregoing.
Under the Agreement, there will be distributed on the ______ day of
each month or, if such ______ day is not a Business Day, the next
succeeding Business Day (each, a "Distribution Date"), commencing on
_____________, to the Person in whose name this Class B Certificate is
registered at the close of business on the ____ day of the month in which
such Distribution Date occurs (the "Record Date"), such Certificateholder's
fractional undivided interest in the amount to be distributed to Class B
Certificateholders on such Distribution Date.
The Holder of this Class B Certificate acknowledges and agrees that
its right to receive distributions in respect of this Certificate are
subordinated to the rights of Holders of the Class A Certificates, to the
extent and in the manner set forth in the Agreement.
It is the intent of the Company, the Servicer, the Trustee and the
Certificateholders that, for purposes of federal income, state and local
income and single business tax and any other income taxes, the Trust be
treated as a grantor trust and the Certificates be treated as interests in
a grantor trust. The Company, the Servicer, the Trustee and each
Certificateholder or Certificate Owner, by its acceptance of a Certificate
or of a beneficial interest in a Certificate, agree to treat, and to take
no action inconsistent with the treatment of, the Certificates for such tax
purposes as interests in a grantor trust.
Distributions on this Class B Certificate will be made as provided in
the Agreement by the Trustee by wire transfer or check mailed to the Person
identified as the Holder of Record hereof in the Certificate Register,
without the presentation or surrender of this Class B Certificate or the
making of any notation hereon, except that with respect to Class B
Certificates registered on the Record Date in the name of the nominee of
the Clearing Agency (initially such nominee to be Cede & Co.), payments
will be made by wire transfer in immediately available funds to the account
designated by such nominee. Except as otherwise provided in the 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 and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Class B
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the 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.
THIS CLASS B CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Class B Certificate to be duly
executed.
[ ] AUTO RECEIVABLES
TRUST 200_-__
By:______________________, not in its
individual capacity but solely
as Trustee
By: ______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-
mentioned Trust Agreement.
Date:
_____________________________,
as Trustee
By: ________________________________
Authorized Signatory
[REVERSE OF CLASS B CERTIFICATE]
The Class B Certificates do not represent an obligation of, or an
interest in, the Company, the Servicer, the Trustee or any of their
respective affiliates, and no recourse may be had against such parties or
their assets except as expressly set forth or contemplated herein or in the
Agreement. In addition, this Class B Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment
to certain collections and recoveries with respect to the Receivables (and
certain other amounts), all as more specifically set forth herein and in
the Agreement. A copy of the Agreement may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Company and at such other places, if any,
designated by the Company.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company, the Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing not less than a majority of the Certificate Balance. 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 here for 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 Certificates.
No transfer of this Class B Certificate will be made unless such
transfer is exempt from the registration requirements of the Securities Act
and any applicable state securities laws or is made in accordance with the
Securities Act and such state securities laws. In the event that the Holder
hereof desires to make such a transfer, the Holder and such Holder's
transferee will be required to comply with certain procedures set forth in
the Agreement, including the delivery of certain certificates and
investment letters. The Holder or Owner hereof, by acceptance of this
Certificate or of a beneficial interest in this Certificate, does hereby
agree to indemnify the Trustee, the Company, the Servicer and the
Certificate Registrar against any liability that may result if any such
transfer is not so exempt or is not made in accordance with federal and
state laws. In connection with any such transfer, the Trustee will also
require (i) a representation letter, in the form described in the
Agreement, stating that transferee is not a Plan and is not acting on
behalf of a Plan or using the assets of a Plan to effect such purchase or
(ii) if such transferee is a Plan, an opinion of counsel acceptable to and
in form and substance satisfactory to the Trustee with respect to certain
matters described in the Agreement.
Except as provided in the Agreement, the Class B Certificates are
issuable only as registered certificates without coupons in a minimum
denomination of $1,000 and integral multiples of $1,000 in excess thereof.
As provided in the Agreement and subject to certain limitations therein set
forth, Class B Certificates are exchangeable for new Class B Certificates
of authorized denominations evidencing the same aggregate denomination, as
requested by the Holder surrendering the same. No service charge will be
made for any such registration to transfer or exchange, but the Trustee or
the Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge 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 none of
the Trustee, the Certificate Registrar or any such agent shall be affected
by any notice to the contrary.
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to
the Agreement and the disposition of all property held by the Trust. The
Servicer of the Receivables may at its option purchase the Trust property
at a price specified in the Agreement, and such purchase of the Receivables
may at its option purchase the Trust property at a price specified in the
Agreement, and such purchase of the Receivables and other property of the
Trust will effect early retirement of the Class B Certificates; provided,
however, that such right of purchase is exercisable only as of the last day
of any Collection Period as of which the Pool Balance is less than or equal
to 10% of the Cutoff Date Pool Balance.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of
assignee)
the within Class B Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing ________________________ to
transfer said Class B Certificate on the books of the Certificate
Registrar, with full power of substitution in the premises.
Dated:
____________________________*/ Signature Guaranteed:
____________________________*/
*/ 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. Such
signature must be guaranteed by a member firm of the New York Stock
Exchange or a commercial bank or trust company. C-11 600381.04-New York
EXHIBIT C
Form Of Depository Agreement
LETTER OF REPRESENTATIONS
(To be Completed by Issuer and Trustee)
(Name of Issuer)
(Name of Trustee)
(Date)
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
RE: ___________________________________________________________________
(Issue Description)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the above-referenced issue (the "Securities"). Trustee
will act as trustee with respect to the Securities pursuant to a trust
indenture dated ________, 200_ (the "Document"), ______________ (the
"Underwriter") is distributing the Securities through The Depository Trust
Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC,
and to act in accordance with its Rules with respect to the Securities,
Issuer and Trustee make the following representations to DTC:
1. Prior to closing on the Securities on ____________________ there
shall be deposited with DTC one or more Security certificates registered in
the name of DTC's nominee, Cede & Co., for each stated maturity of the
Securities in the face amounts set forth on Schedule A hereto, the total of
which represents 100% of the principal amount of such Securities. If,
however, the aggregate principal amount of any maturity exceeds $400
million, one certificate shall be issued with respect to each $400 million
of principal amount and an additional certificate shall be issued with
respect to any remaining principal amount. Each Security certificate shall
bear the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Issuer represents: [Note: Issuer must represent one of the following, and
shall cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it
receives an instruction originated by a DTC participant ("Participant")
through DTC's Deposit/Withdrawal at Custodian ("DWAC") system to increase
the Participant's account by a specified number of Securities (a "Deposit
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that
day, either approve or cancel the Deposit Instruction through the DWAC
system.
On each day on which Agent is open for business and on which it
receives an instruction originated by Participant through the DWAC system
to decrease the Participant's account by a specified number of Securities
(a "Withdrawal Instruction"), Agent shall, no later than 6:30 p.m. (Eastern
Time) that day, either approve or cancel the Withdrawal Instruction through
the DWAC system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction
shall be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co.
for the quantity of Securities evidenced by the Balance Certificate after
the Deposit or Withdrawal Instruction is effected.]
[The Security certificate(s) shall be custodied with DTC.]
2. Issuer: (a) understands that DTC has no obligation to, and will
not, communicate to its Participants or to any person having an interest in
the Securities any information contained in the Security certificate(s);
and (b) acknowledges that neither DTC's Participants nor any person having
an interest in the Securities shall be deemed to have notice of the
provisions of the Security certificates by virtue of submission of such
certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date
for such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no
fewer than 15 calendar days in advance of such record date. Notices to DTC
pursuant to this Paragraph by telecopy shall be directed to DTC's
Reorganization Department, Proxy Unit at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇.
If the party sending the notice does not receive a telecopy receipt from
DTC confirming that the notice has been received, such party shall
telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph, by
mail or by any other means, shall be sent to: Supervisor, Proxy Unit,
Reorganization Department, The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
4. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to DTC specifying: (a) the amount of the redemption or
refunding; (b) in the case of a refunding, the maturity date(s) established
under the refunding; and (c) the date such notice is to be distributed to
Security holders (the "Publication Date"). Such notice shall be sent to DTC
by a secure means (e.g., legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business on the business
day before or, if possible, two business days before the Publication Date.
Issuer or Agent shall forward such notice either in a separate secure
transmission for each CUSIP number or in a secure transmission for multiple
CUSIP numbers (if applicable) which includes a manifest or list of each
CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be no fewer than 30
days nor more than 60 days prior to the redemption date or, in the case of
an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be directed to
DTC's Call Notification Department at (516) 227- 4164 or (▇▇▇) ▇▇▇-▇▇▇▇. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone
(▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph, by mail or by
any other means, shall be sent to: Manager, Call Notification Department,
The Depository Trust Company, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or
Agent to Security holders shall be sent to DTC specifying the terms of the
tender and the Publication Date of such notice. Such notice shall be sent
to DTC by a secure means (e.g., legible telecopy, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such
notice is in DTC's possession no later than the close of business on the
business day before or, if possible, two business days before the
Publication Date. Issuer or Agent shall forward such notice either in a
separate secure transmission for each CUSIP number or in a secure
transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The
party sending such notice shall have a method to verify subsequently the
use and timeliness of such notice.) Notices to DTC pursuant to this
Paragraph and notices of other corporate actions by telecopy shall be
directed to DTC's Reorganization Department at (▇▇▇) ▇▇▇-▇▇▇▇. If the party
sending the notice does not receive a telecopy receipt from DTC confirming
that the notice has been received, such party shall telephone (212)
▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph, by mail or by any
other means, shall be sent to: Manager, Reorganization Department,
Reorganization Window, The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
6. It is understood that if the Security holders shall at any time
have the right to tender the Securities to Issuer and require that Issuer
repurchase such holders' Securities pursuant to the Document and Cede &
Co., as nominee of DTC, or its registered assigns, as the record owner, is
entitled to tender the Securities, such tenders will be effected by means
of DTC's Repayment Option Procedures. Under the Repayment Option
Procedures, DTC shall receive, during the applicable tender period,
instructions from its Participants to tender Securities for purchase.
Issuer and Agent agree that such tender for purchase may be made by DTC by
means of a book-entry credit of such Securities to the account of Agent,
provided that such credit is made on or before the final day of the
applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or
by a secure means (e.g., legible facsimile transmission, registered or
certified mail, overnight delivery) in a timely manner designed to assure
that such notice is in DTC's possession no later than the close of business
two business days before the Publication Date. The Publication Date shall
be no fewer than 15 days prior to the expiration date of the applicable
tender period. Such notice shall state whether any partial redemption of
the Securities is scheduled to occur during the applicable optional tender
period. Notices to DTC pursuant to this Paragraph by telecopy shall be
directed to DTC's Put Bond Unit at (▇▇▇) ▇▇▇-▇▇▇▇. If the party sending the
notice does not receive a telecopy receipt from DTC confirming that the
notice has been received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇.
Notices to DTC pursuant to this Paragraph, by mail or by any other means,
shall be sent to: Supervisor, Put Bond Unit, Reorganization Department, The
Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇.
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the
dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably
five, but no fewer than two, business days prior to such payment date. Such
notices, which shall also contain the current pool factor, any special
adjustments to principal/interest rates (e.g., adjustments due to deferred
interest or shortfall), and Agent contact's name and telephone number,
shall be sent by telecopy to DTC's Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇,
and receipt of such notices shall be confirmed by telephoning (212)
855-4550. Notices to DTC, pursuant to this Paragraph, by mail or by any
other means, shall be sent to: Manager, Announcements, Dividend Department,
The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇.
9. Issuer represents: [Note: Issuer must represent one of the
following, and shall cross out the other.] [The interest accrual period is
record date to record date.] [The interest accrual period is payment date
to payment date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon
as the information is available. Issuer or Agent shall provide such notice
directly to DTC electronically, as previously arranged by Issuer or Agent
and DTC. If electronic transmission has not been arranged, absent any other
arrangements between Issuer or Agent and DTC, such information shall be
sent by telecopy to DTC's Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (212)
855-4556. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party
shall telephone (▇▇▇) ▇▇▇-▇▇▇▇. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to DTC's Dividend Department
as indicated in Paragraph 8.
11. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee
of DTC, or its registered assigns, in same-day funds no later than 2:30
p.m. (Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m.
(Eastern Time) on the payment date all such interest payments due Agent, or
at such earlier time as may be required by Agent to guarantee that DTC
shall receive payment in same-day funds no later than 2:30 p.m. (Eastern
Time) on the payment date. Absent any other arrangements between Issuer or
Agent and DTC, such funds shall be wired to the Dividend Deposit Account
number that will be stamped on the signature page hereof at the time DTC
executes this Letter of Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later
than 12:00 noon (Eastern Time) on the payment date, automated notification
of CUSIP-level detail. If the circumstances prevent the funds paid to DTC
from equaling the dollar amount associated with the detail payments by
12:00 noon (Eastern Time), Issuer or Agent must provide CUSIP-level
reconciliation to DTC no later than 2:30 p.m. (Eastern Time).
Reconciliation must be provided by either automated means or written
format. Such reconciliation notice, if sent by telecopy, shall be directed
to DTC Dividend Department at (▇▇▇) ▇▇▇-▇▇▇▇ and receipt of such
reconciliation notice shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇.
13. Maturity and redemption payments allocated with respect to each
CUSIP number shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time)
on the payment date all such maturity and redemption payments due Agent, or
at such earlier time as required by Agent to guarantee that DTC shall
receive payment in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Absent any other arrangements between Issuer or Agent and
DTC, such funds shall be wired to the Redemption Deposit Account number
that will be stamped on the signature page hereof at the time DTC executes
this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result
of optional tenders for purchase effected by means of DTC's Repayment
Option Procedures shall be received by Cede & Co., as nominee of DTC, or
its registered assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time)
on the payment date all such reorganization payments due Agent, or at such
earlier time as required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Absent any other arrangements between Issuer or Agent and
DTC, such funds shall be wired to the Reorganization Deposit Account number
that will be stamped on the signature page hereof at the time DTC executes
this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission,
such reports shall be sent to (212) 855- 4777. If the party sending the
report does not receive a telecopy receipt from DTC confirming that the
notice has been received, such party shall telephone (▇▇▇) ▇▇▇-▇▇▇▇.
16. DTC may direct Issuer or Agent to use any other number or address
as the number or address to which notices or payments of interest or
principal may be sent.
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or
Agent's invitation) necessitating a reduction in the aggregate principal
amount of Securities outstanding or an advance refunding of part of the
Securities outstanding, DTC, in its discretion: (a) may request Issuer or
Agent to issue and authenticate a new Security certificate; or (b) may make
an appropriate notation on the Security certificate indicating the date and
amount of such reduction in principal except in the case of final maturity,
in which case the certificate will be presented to Issuer or Agent prior to
payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer
or Agent shall issue, transfer, and exchange certificates in appropriate
amounts, as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or
Agent the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with
DTC by taking appropriate action to make available one or more separate
certificates evidencing Securities to any Participant having Securities
credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds
on behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts together shall constitute but one and
the same instrument.
22. This Letter of Representations shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this Letter
of Representations is responsible for confirming that such notice was
properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and
shall not have any responsibility to, monitor or ascertain the compliance
of any transactions in the Securities with the following, as amended from
time to time: (a) any exemptions from registration under the Securities Act
of 1933; (b) the Investment Company Act of 1940; (c) the Employee
Retirement Income Security Act of 1974; (d) the Internal Revenue Code of
1986; (e) any rules of any self-regulatory organizations (as defined under
the Securities Exchange Act of 1934); or (f) any other local, state, or
federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent.
DTC charges a fee for such SPLs. This authorization, unless revoked by
Issuer, shall continue with respect to the Securities while any Securities
are on deposit at DTC, until and unless Agent shall no longer be acting. In
such event, Issuer shall provide DTC with similar evidence, satisfactory to
DTC, of the authorization of any successor thereto so to act. Requests for
SPLs shall be sent by telecopy to the Proxy Unit of DTC's Reorganization
Department at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇. Receipt of such requests
shall be confirmed by telephoning (▇▇▇) ▇▇▇-▇▇▇▇. Requests for SPLs, sent
by mail or by any other means, shall be directed to the address indicated
in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements
stated in DTC's Operational Arrangements, as they may be amended from time
to time. DTC's Operational Arrangements are posted on DTC's website at
"▇▇▇.▇▇▇.▇▇▇."
27. The following rider(s), attached hereto, are hereby incorporated
into this Letter of Representations:
Notes: Very truly yours,
A. If there is an Agent (as defined in ______________________________________
this Letter of Representations), Agent (Issuer)
as well as Issuer must sign this By:___________________________________
Letter. If there is no Agent, in (Authorized Officer's Signature)
signing this Letter Issuer itself
undertakes to perform all of the ______________________________________
obligations set forth herein. B. (Trustee)
Schedule B contains statements that By:___________________________________
DTC believes accurately describe DTC, (Authorized Officer's Signature)
the method of effecting book-entry
transfers of securities distributed
through DTC, and certain related
matters.
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: ______________________________
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
SCHEDULE A
---------------------------------------------------------------------------
---------------------------------------------------------------------------
[Describe Issue, Including Issuer's Name]
CUSIP Number Principal Amount Maturity Date Interest Rate
------------ ---------------- ------------- -------------
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities
will be issued as fully-registered securities registered in the name of
Cede & Co. (DTC's partnership nominee) or such other name as may be
requested by an authorized representative of DTC. One fully-registered
Security certificate will be issued for [each issue of] the Securities,
[each] in the aggregate principal amount of such issue, and will be
deposited with DTC. [If, however, the aggregate principal amount of [any]
issue exceeds $400 million, one certificate will be issued with respect to
each $400 million of principal amount and an additional certificate will be
issued with respect to any remaining principal amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934. DTC holds securities that its
participants ("Direct Participants") deposit with DTC. DTC also facilitates
the settlement among Direct Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Direct Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and
trust companies that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ("Indirect
Participants"). The Rules applicable to DTC and its Direct and Indirect
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities
on DTC's records. The ownership interest of each actual purchaser of each
Security ("Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchase, but Beneficial Owners are expected
to receive written confirmations providing details of the transaction, as
well as periodic statements of their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interests in the Securities are to be
accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in
Securities, except in the event that use of the book-entry system for the
Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. or such other name as may be requested by
an authorized representative of DTC. The deposit of Securities with DTC and
their registration in the name of Cede & Co. or such other nominee do not
effect any change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Direct and
Indirect Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. [Beneficial Owners of
Securities may wish to take certain steps to augment transmission to them
of notices of significant events with respect to the Securities, such as
redemptions, tenders, defaults, and proposed amendments to the security
documents. Beneficial Owners of Securities may wish to ascertain that the
nominee holding the Securities for their benefit has agreed to obtain and
transmit notices to Beneficial Owners, or in the alternative, Beneficial
Owners may wish to provide their names and addresses to the registrar and
request that copies of the notices be provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in
such issue to be redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will
consent or vote with respect to the Securities. Under its usual procedures,
DTC mails an Omnibus Proxy to Issuer as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTC's practice is to
credit Direct Participants' accounts, upon DTC's receipt of funds and
corresponding detail information from Issuer or Agent on payable date in
accordance with their respective holdings shown on DTC's records. Payments
by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held
for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such Participant and not of DTC,
Agent, or Issuer, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of redemption proceeds,
distributions, and dividends to Cede & Co. (or such other nominee as may be
requested by an authorized representative of DTC) is the responsibility of
Issuer or Agent, disbursement of such payments to Direct Participants shall
be the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct and Indirect
Participants.
[9. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in
the Securities, on DTC's records, to [Tender/Remarketing] Agent. The
requirement for physical delivery of Securities in connection with an
optional tender or a mandatory purchase will be deemed satisfied when the
ownership rights in the Securities are transferred by Direct Participants
on DTC's records and followed by a book-entry credit of tendered Securities
to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under such circumstances, in the event that a
successor securities depository is not obtained, Security certificates are
required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that
event, Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that Issuer believes to be
reliable, but Issuer takes no responsibility for the accuracy thereof.
EXHIBIT D
[Form Of Accountants' Letter]
EXHIBIT E
Form of Transferor Certificate
[DATE]
[Company]
[Company Address]
[Trustee]
[Trustee Address]
Re: [ ] Auto Receivables Trust 200__-__ Asset Backed
Certificates, Class B
Ladies and Gentlemen:
In connection with our disposition of the above-referenced ___% Asset
Backed Certificates, Class B (the "Certificates") we certify that (a) we
understand that the Certificates, have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are being transferred
by us in a transaction that is exempt from the registration requirements of
the Act and (b) we have not offered or sold any Certificates to, or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By:_____________________________
Authorized Officer
EXHIBIT F
Form of Investment Letter
[DATE]
[Company]
[Company Address]
[Trustee]
[Trustee Address]
Re: [ ] Auto Receivables Trust 200__-__ Asset Backed Certificates,
Class B
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Asset
Backed Certificates, Class B (the "Certificates"), we certify that (a) we
understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from
the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Company concerning the purchase of the
Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
not an employee benefit plan or trust account that is subject to the
Employee Retirement Income Security Act of 1974, as amended, or section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting on
behalf of any such Plan or using the assets of any such Plan to acquire
Class B Certificates, (e) we are acquiring the Certificates for investment
for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
that would result in a violation of Section 5 of the Act or any state
securities laws and (g) we will not sell, transfer or otherwise dispose of
any Certificates unless (1) such sale, transfer or other disposition is
made pursuant to an effective registration statement under the Act and in
compliance with any relevant state securities laws or is exempt from such
registration requirements and, if requested, we will at our expense provide
an opinion of counsel satisfactory to the addresses of this certificate
that such sale, transfer or other disposition may be made pursuant to an
exemption from the Act, (2) the purchaser or transferee of such Note has
executed and delivered to you a certificate to substantially the same
effect as this certificate and (3) the purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the
Pooling and Servicing Agreement dated as of _____________, among [GS
Mortgage Securities Corp.], as Company, ______________ as Servicer, and
____________, as Trustee.
Very truly yours,
[NAME OF TRANSFEREE]
By:_____________________________
Authorized Officer
EXHIBIT G
Form of Rule 144A Letter
[DATE]
[Company]
[Company Address]
[Trustee]
[Trustee Address]
Re: [ ] Auto Receivables Trust 200__-__ Asset Backed Certificates, Class B
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced ___% Asset
Backed Certificates, Class B (the "Certificates") we certify that (a) we
understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from
the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Company concerning the purchase of the
Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
not an employee benefit plan, trust or account that is subject to the
Employee Retirement Income Security Act of 1974, as amended, or section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting on
behalf of any such Plan or using the assets of any such Plan to acquire
Class B Certificates, (e) we have not, nor has anyone acting on our behalf,
offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Certificates, any interest in the Certificates or
any other similar security from or otherwise approached or negotiated with
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action that would constitute a distribution of the
Certificates under the Act or that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the act or any state securities
laws or require registration pursuant thereto, and we will not act, or
authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a "qualified institutional buyer" as that term
is defined in Rule 144A under the Act. We are aware that the sale to us is
being made in reliance on Rule 144A. We are acquiring the Certificates for
our own account or for resale pursuant to Rule 144A and understand that
such Certificates may be resold, pledged or transferred only (i) to a
person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A or (ii) pursuant to another
exemption from registration under the Act.
Very truly yours,
[NAME OF TRANSFEREE]
By:______________________________
Authorized Officer
EXHIBIT H
Form of Receivables Purchase Agreement
[to be supplied]
EXHIBIT J
YIELD SUPPLEMENT AGREEMENT
[Date]
Ladies and Gentlemen:
[GS Mortgage Securities Corp.] (the "Company") hereby confirm
arrangements made as of the date hereof with you to be effective upon
receipt by us of the enclosed copy of this letter agreement (the "Yield
Supplement Agreement"), executed by you. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement dated as of ________, ___ (the
"Agreement"), among the Company, _________, as servicer (the "Servicer"),
and ________, as trustee (the "Trustee").
1. On or prior to each Determination Date, by delivery of a Servicer's
Certificate pursuant to Section 3.09 of the Agreement, the Servicer shall
notify the Trustee of the Yield Supplement Amount for the related
Distribution Date.
2. To the extent that the amount on deposit in the Yield Supplement
Account is less than the Yield Supplement Deposit Amount for the related
Distribution Date, we agree to make a payment to the Trustee of additional
amounts until the amount on deposit therein equals the Maximum Yield
Supplement Amount by wire transfer of same day funds, to such account as
the Trustee may designate in writing to us no later than 12:00 P.M., New
York City time, on the Business Day immediately preceding such Distribution
Date.
3. Our agreement set forth in this Yield Supplement Agreement is our
primary obligation and such obligation is irrevocable, absolute and
unconditional, shall not be subject to any counterclaim, setoff or defense
(other than full and strict compliance by us with our obligations
hereunder) and shall remain in full force and effect without regard to, and
shall not be released, discharged or in any way affected by, any
circumstances or condition whatsoever.
4. The Trustee's interest in this Yield Supplement Agreement shall be
transferable to any Trustee or successor Trustee under the Agreement.
5. This Yield Supplement Agreement will be governed by and construed
in accordance with the internal laws of New York.
6. Except as otherwise provided in the Agreement, this Yield
Supplement Agreement shall terminate on the earlier to occur of: (a)
termination of the Agreement pursuant to Section 10.01 and (b) the Final
Scheduled Distribution Date.
7. Except as otherwise provided herein, all notices pursuant to this
Yield Supplement Agreement shall be in writing and shall be effective upon
receipt thereof. All notices shall be directed as set forth below, or to
such other address or to the attention of such other person as the relevant
party shall have designated for such purpose in a written notice.
[GS Mortgage Securities Corp.]
Attention:______________________
The Trustee:
Attention:______________________
8. This Yield Supplement Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts,
all of which shall be deemed to be one and the same document.
9. In consideration for all future payments, if any, of Yield
Supplement Amounts to the Trustee pursuant to Paragraph 2 hereof, the
Trustee shall pay to the Company on the Closing Date under the Agreement
such amount as the Company and the Trustee shall separately agree.
10. This Agreement may not be assigned by the Company except as
contemplated by this Section and the Agreement; provided, however, that
simultaneously with the execution and delivery of this Agreement, the
Company shall assign all of their right, title and interest herein to the
Trustee for the benefit of the Certificateholders as provided in Section
4.03 of the Agreement, to which the Servicer hereby expressly consents. The
Servicer agrees to perform its obligations hereunder for the benefit of the
Trust and that the Trustee may enforce the provisions of this Agreement,
exercise the rights of the Company and enforce the obligations of the
Servicer hereunder without the consent of the Company.
11. The Servicer and the Company agree to do and perform, from time to
time, any and all acts and to execute any and all further instruments
required or reasonably requested by the other party hereto or by the
Trustee more fully to effect the purposes of this Agreement.
If the foregoing satisfactory set forth the terms and conditions of our
agreement, please indicate your acceptance thereof by signing in the space
provided below and returning to us the enclosed duplicate original of this
letter.
Very truly yours,
_____________________________, as Servicer
By:_______________________ Name:
Title:
Agreed and Accepted as of ____________, 200__
________________________________________, as Trustee
By______________________________________ Name:
Title:
[GS Mortgage Securities Corp.]
By______________________________________ Name:
Title: