MASTER TRUST AGREEMENT
by and between
AEGIS AUTO FUNDING CORP. IV,
a Delaware Corporation, Seller
and
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Trustee
Dated as of March 1, 1997
With respect to
Aegis Auto Funding Corp. IV
Aegis Auto Receivables Trusts
Automobile Receivable Pass-Through Certificates
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS 1
ARTICLE II. CREATION OF TRUSTS; SALE AND TAX TREATMENT
1
ARTICLE III. ESTABLISHMENT OF RESERVE FUND 2
ARTICLE IV ADDITIONAL REQUIREMENTS 5
ARTICLE V. TERMINATION 6
ARTICLE VI. AMENDMENTS 6
ARTICLE VII. MISCELLANEOUS 6
TESTIMONIUM
SIGNATURES
APPENDIX A Standard Terms and Conditions
APPENDIX B Form of Pooling and Servicing Agreement
MASTER TRUST AGREEMENT
This MASTER TRUST AGREEMENT
dated as of March 1, 1997 (this "Master Trust
Agreement") is by and between AEGIS AUTO
FUNDING CORP. IV, a Delaware corporation, as
Seller, and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee for the
holders from time to time of the Automobile
Receivable Pass-Through Certificates (the
"Certificates") to be issued by the trusts created
pursuant to the terms hereof.
W I T N E S S E T H :
WHEREAS, the Seller desires to provide for
the creation of a series of grantor trusts (each a
"Trust"), the assets of each to consist of a pool of
motor vehicle retail installment sales contracts
secured by new and used automobiles and light-duty
trucks and certain related property;
WHEREAS, each such Trust will issue a
series of Certificates evidencing an undivided
interest in the assets of the Trust (excluding the
residual interest retained by the Seller);
WHEREAS, each series of Certificates will
be issued pursuant to the terms of this Master Trust
Agreement and a related Pooling and Servicing
Agreement incorporating the Standard Terms and
Conditions attached hereto as Appendix A (the
"Standard Terms"); and
WHEREAS, each series of Certificates will
be additionally secured by a common reserve fund
established hereby and to be held outside each of
the individual Trusts;
NOW, THEREFORE, in consideration of
the foregoing premises and the mutual covenants
expressed herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Terms used in this Master Trust Agreement
and not otherwise defined shall have the meanings
assigned in the Standard Terms.
ARTICLE II
CREATION OF TRUSTS; SALE AND TAX
TREATMENT
Section 2.1. Creation of Trusts. Each
Trust shall be created upon the execution and
delivery of a Pooling and Servicing Agreement
substantially in the form of Appendix B hereto
and the Seller's conveyance to the Trustee of the
trust property specified therein. Concurrent with
the creation of each Trust, the Trustee shall execute
and deliver to the Seller or upon the
Seller's written order Automobile Receivable Pass-
Through Certificates representing a fractional
undivided ownership interest in the trust property
conveyed (excluding the residual interest retained by
the Seller). Such Certificates shall bear a separate
series designation, pay pass-through interest and be
subject to such other terms as provided in the
related Pooling and Servicing Agreement. Each
Pooling and Servicing Agreement shall incorporate
the Standard Terms, with such appropriate
variations as from time to time may be agreed to by
the Seller and the Trustee subject to Article V
hereof.
Section 2.2. Sale and Tax Treatment. It is
the intention of the parties that each transfer of trust
property to a Trust be treated as an absolute sale
and conveyance of such property by the Seller to
the Trustee on behalf of such Trust, and that each
Trust be treated as a separate grantor trust for
federal income tax purposes.
ARTICLE III
ESTABLISHMENT OF RESERVE FUND
Section 3.1. Establishment and Funding.
(a) In order to assure that sufficient amounts to
make required payments to the holders of the
Certificates will be available, there shall be
established and maintained with the Trustee the
following Eligible Account: the "Reserve Fund
Aegis Auto Funding Corp. IV, Aegis Auto
Receivables Trusts" (the "Reserve Fund"), which
will include the money and other property deposited
therein pursuant to applicable sections of each
Pooling and Servicing Agreement and held therein
pursuant to this Article III. The Reserve Fund shall
not be part of any trust created pursuant to the
terms hereof, but instead will be held outside each
trust for the benefit of the holders of the
Certificates and to secure trustee and servicing fee
distributions as described below. The Seller and the
Trustee acknowledge that any amounts on deposit in
the Reserve Fund (and any investment earnings
thereon) will be owned directly by and be the
separate property of the Seller, and such parties
hereby agree to treat the same as assets (and
investment earnings) of the Seller for federal
income tax purposes.
(b) The Reserve Fund shall be funded
through deposits made on the date of creation of
each Trust and transfers made on each Distribution
Date and each Funding Date (if any) as provided in
the Pooling and Servicing Agreements.
Section 3.2. Reserve Fund Investments. (a)
Subject to subsection (b) below, amounts held in the
Reserve Fund shall be invested in Eligible
Investments, in accordance with written instructions
from the Seller or its designee, and such
investments shall not be sold or disposed of prior to
their maturity but shall mature no later than two
Business Days before the Distribution Date next
succeeding the date of investment. All amounts
held in the Reserve Fund, including proceeds of
investments, shall be available for application to
required distributions on such Distribution Date
pursuant to Section 3.5 hereof and 5.07(a) of the
Standard Terms. All such investments shall be made
in the name of the Trustee or its nominee. Any
loss on investment of amounts held in the Reserve
Fund and all income and gain realized on the
Reserve Fund shall be credited to such fund. The
Trustee shall not have any liability for losses on
moneys invested by the Trustee hereunder except if
caused by its negligence or its failure to act in
accordance with reasonable and proper instructions
given in writing and received by the Trustee.
(b) The foregoing subsection (a)
notwithstanding, an amount equal to the Reserve
Fund Initial Deposit deposited into the Reserve
Fund on the Closing Date with respect to each Trust
may be invested in capital appreciation notes issued
by The Aegis Consumer Funding Group, Inc. in a
maturity amount of up to four percent (4%) of the
aggregate initial Class Certificate Balance of the
Certificates issued by such Trust. Such notes (the
"Term Notes") shall mature on the date which is
sixty-six (66) months from the date thereof, and
shall be purchased at a price calculated to yield the
Discount Rate, payable at maturity. All amounts
paid on such Term Notes shall be deposited into the
Reserve Fund. In addition, if the Trustee receives
the written direction of the Seller and the written
consent of the Subordinate Holders from every
series of Certificates issued as of the date of such
consent, or if the Agreement so provides, additional
amounts in the Reserve Fund may be invested in
demand promissory notes ("Demand Notes") issued
by The Aegis Consumer Funding Group, Inc. on
then current market terms.
Section 3.3. Pledge of Reserve Fund. In
order to provide for the required payments to be
made to the holders of the Certificates, the Trustee,
the Custodian, the Servicer and the Backup Servicer
pursuant to the Pooling and Servicing Agreements,
and to assure availability of the amounts maintained
in the Reserve Fund, the Seller hereby grants in
favor of the Trustee, as collateral agent, and its
successor and assigns, a security interest in and lien
upon all its right, title and interest in and to the
Reserve Fund, including all amounts and
investments held from time to time in the Reserve
Fund (whether in the form of deposit accounts,
instruments, book-entry securities, uncertificated
securities or otherwise) (all of the foregoing, subject
to the limitations set forth below, the "Reserve
Fund Property"); to have and to hold all the
aforesaid property, rights and privileges unto the
Trustee, its successors and assigns, in trust for the
uses and purposes set forth in this Article. The
Trustee hereby acknowledges such transfer and
accepts the trust hereunder and shall hold and
distribute the Reserve Fund Property in accordance
with the terms and provisions of this Article.
Section 3.4. Further Assurances. The Seller
agrees to take or cause to be taken such further
actions and 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
Master Trust Agreement) as may be determined to
be necessary to perfect the interests created by this
Article in favor of the Trustee and otherwise fully
to effectuate the purposes, terms and conditions of
this Article. Specifically, the Seller (with respect to
Reserve Fund Property) shall:
(i) promptly execute, deliver and
file any financing statements, amendments,
continuation statements, assignments,
certificates and other documents with respect
to such interests and perform all such other
acts as may be necessary in order to perfect
or to maintain the perfection of the Trustee's
security interest in the Reserve Fund
Property; and
(ii) make the necessary filings of
financing statements or amendments thereto
within ten business days after the occurrence
of any of the following: (1) any change in
the Seller's corporate name or any trade
name; (2) any change in the location of its
chief executive office or principal place of
business; and (3) any merger or
consolidation or other change in its identity
or corporate structure and promptly notify
the Trustee of any such filings.
Section 3.5. Reserve Fund Draws. If on
any Distribution Date the Total Available
Distribution Amount with respect to any series of
Certificates is insufficient to make all required
distributions to the Trustee, Back-Up Servicer,
Custodian, Servicer and the holders of such
Certificates, the Trustee shall withdraw an amount
equal to such insufficiency (or any lesser amount on
deposit in the Reserve Fund if an equal amount is
not available) from the Reserve Fund (any such
withdrawal, a "Reserve Fund Draw"), first from
cash on deposit in the Reserve Fund and, second,
from proceeds of Demand Notes or Term Notes as
described below, and apply such amount in the
order of priority for distributions established by the
terms of the applicable Pooling and Servicing
Agreement. If, on any such Distribution Date, the
amount of the insufficiency described above is
greater than the amounts on deposit in the Reserve
Fund in cash or Eligible Investments and there are
Demand Notes outstanding, the Trustee shall notify
the Certificateholders of such insufficiency and, if
directed to do so by the Majority Certificateholders
the Trustee shall, before making any required
withdrawals from the Reserve Fund (or as soon as
practicable after receiving the direction of the
Majority Certificateholders), demand payment of
such Demand Notes in an amount equal to the
lesser of (x) the amount of such excess insufficiency
and (y) the outstanding principal balance of such
Demand Notes plus accrued interest thereon. Any
amount repaid in excess of the amounts required for
a Reserve Fund Draw shall be retained in the
Reserve Fund. If on any Distribution Date a
Reserve Fund Draw is needed under more than one
Pooling and Servicing Agreement to make required
distributions, and the total amount on deposit in the
Reserve Fund is insufficient to make all such
distributions, the Trustee shall apply the available
amount on deposit in the Reserve Fund to make
required distributions in the order of the dated dates
of each such Pooling and Servicing Agreement,
commencing with the earliest.
Section 3.6. Release of Reserve Fund
Amounts. Commencing on the Distribution Date
which is at least 24 months after the initial Closing
Date, funds remaining on deposit in the Reserve
Fund on any Distribution Date after any needed
Reserve Fund Draws have been made (exclusive of
any Demand Notes or Term Notes), shall, on such
date, be released to the Servicer to pay accrued and
unpaid Servicing Fees and, to the extent such fees
are paid in full, shall also be released to the Seller,
provided that the aggregate amount of such released
funds shall not exceed the least of:
(x) 75% of the average aggregate
amount of monthly collections received in
the Reserve Fund during the most recent and
two preceding months (or, if less, 75% of
such collections received during the most
recent month) and which are allocable to
any Trust which has been in existence for at
least 24 months, so long as the total
cumulative deposits from such Trust into the
Reserve Fund have exceeded the total
cumulative withdrawals made to such Trust
from the Reserve Fund; and
(y) 50% of the amount by which
(i) the aggregate amount of collections
received during the most recent month for
all Trusts exceeds (ii) the aggregate of the
required payments to the Trustee, Back-up Servicer,
Custodian, Servicer and all holders of the
Certificates on such Distribution Date; and
(z) 50% of the amount by which
(i) the aggregate amount of collections
received during the most recent month and
the two preceding months for all trusts
exceeds (ii) the aggregate of the required
payments to the Trustee, Back-up Servicer,
Custodian, Servicer and all holders of the
Certificates made on such Distribution Date
and the two preceding Distribution Dates;
provided that, in no event shall amounts be
distributed to the Seller from the Reserve Fund on
any Distribution Date to the extent that the amounts
on deposit therein (exclusive of Term Notes and
Demand Notes), after giving effect to Reserve Fund
Draws on such date, would be less than the Reserve
Requirement.
Upon termination of this Master Trust
Agreement and all related Pooling and Servicing
Agreements, any amounts on deposit in the Reserve
Fund, after payment of all amounts due the Backup
Servicer, the Trustee, the Custodian, the Servicer
and the holders of the Certificates, shall be paid to
the Seller or its assignee. Amounts properly
received by the Seller pursuant to this Master Trust
Agreement and any Pooling and Servicing
Agreement shall not be available to the Trustee for
the purpose of making deposits to the Reserve Fund
or making payments to the holders of the
Certificates, nor shall the Seller be required to
refund any amount properly received by it.
ARTICLE IV
ADDITIONAL REQUIREMENTS
Section 4.1. Financing Statements.
On or before the initial Closing Date, the
Seller shall deliver to the Trustee UCC-1 financing
statements to be filed in appropriate jurisdictions
which are necessary to perfect the interests of the
Trustee in the Receivables and other Trust Property
to be transferred to the Trustee from time to time
pursuant to the related Pooling and Servicing
Agreements and the pledge of the Reserve Fund by
the Seller to the Trustee pursuant to this
Agreement. In addition, on or before the initial
Closing Date, the Seller shall deliver to the Trustee
copies of UCC-1 financing statements filed by the
lenders pursuant to the Warehouse Facility, each of
which shall provide that the Receivables and other
Trust Property sold from time to time by Aegis
Finance to the Seller pursuant to the Purchase
Agreement and by the Seller to the Trustee pursuant
to the related Pooling and Servicing Agreement,
shall not be included in the collateral covered by
such financing statements.
Section 4.2. Risk Default Insurance
Policies.
On the initial Closing Date the Seller shall
deliver to the Trustee the original Risk Default
Insurance Policies, each of which shall name Aegis
Finance as the named insured. On each Closing
Date and Funding Date, if any, the Seller shall
deliver to the Trustee an endorsement to such policy
naming the Trustee as an additional insured or a
"pool certificate holder" with respect to the
Receivables being transferred to the Trustee on such
date and the related Trust.
ARTICLE V
TERMINATION
This Master Trust Agreement may be
terminated by the Seller upon written notice to the
Trustee, but only if at the time of such notice every
Pooling and Servicing Agreement previously
executed and delivered pursuant to this Master
Trust Agreement has been terminated in accordance
with its respective terms.
ARTICLE VI
AMENDMENTS
This Master Trust Agreement may be
amended from time to time by a written amendment
duly executed and delivered by the Seller and the
Trustee; provided, however, that for so long as any
Certificates are outstanding, without the prior
written consent of all holders of the Certificates, (i)
no amendment of Section 2.2 or Article III shall be
made and (ii) the Standard Terms shall not be
amended nor varied in any given Pooling and
Servicing Agreement so as to change the day of the
month on which regular distributions from each of
the trusts is made or to make any other change that
would create a preference or distinction among the
holders of different series of Certificates
outstanding with respect to the security represented
by the Reserve Fund.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Headings and
Cross-References. The various headings in this
Master Trust Agreement are included for
convenience only and shall not affect the meaning
or interpretation of any provision contained herein.
References herein to Section or Article names or
numbers are to such Sections or Articles of this
Master Trust Agreement.
Section 7.2. Governing Law. This Master
Trust Agreement shall be governed by and
construed in accordance with the laws of the State
of New York, including Section 5-1401 of the
General Obligations Law but otherwise without
regard or reference to principles of conflicts of laws
of such state.
Section 7.3. Counterparts. This Master
Trust Agreement may be executed in one or more
counterparts, each of which shall be an original, but
all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Seller and
the Trustee have caused this Master Trust
Agreement to be duly executed by their respective
officers as of the day and year first above written.
AEGIS AUTO FUNDING CORP. IV,
as Seller
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Corporate Trust Officer
APPENDIX A
TO THE MASTER TRUST AGREEMENT
STANDARD TERMS AND CONDITIONS
Aegis Auto Funding Corp. IV
Aegis Auto Receivables Trusts
Automobile Receivable Pass-Through Certificates
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . 1
ARTICLE II
INTERPRETATION
Section 2.01 Usage of Terms . . . . . . .18
Section 2.02. Cutoff Date and Record Date. 18
Section 2.03. Section References . . 18
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of Seller . . . 18
Section 3.02. Repurchase or Substitution Upon Breach . . . . 25
Section 3.03. Custody of Documents. . . . . . . . . . . . . 26
Section 3.04. Duties of Custodian. . . . . . . . . . 29
Section 3.05. Instructions; Authority to Act . . . . . . . . 29
Section 3.06. Custodian Fees; Indemnification. . . . . . . . 29
Section 3.07. Effective Period and Termination. . . . . . . 30
Section 3.08. Funding Events . . . . . . . . . . . . 30
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Servicing Duties . . . . . . . 32
Section 4.02. Resignation ofBackup Servicer. . .33
Section 4.03. Covenant of Backup Servicer . . . 34
Section 4.04. Servicing Fees . . . . . . . . .34
Section 4.05. Costs and Expenses . . . . . . 34
Section 4.06. Standard of Care . . . . . . .34
ARTICLE V
DISTRIBUTIONS; ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Accounts . . . . . . . . . . . . . . . 35
Section 5.02. Collections. . . . . . . . . . . . . . . . 36
Section 5.03. Application of Collections. . . . . . . . . . 36
Section 5.04. Miscellaneous Servicer Collections . . . . . . 36
Section 5.05. Additional Deposits. . . . . . . . . . . . . .36
Section 5.06. Distributions. . . . . . . . . . . . . . . . .37
Section 5.07. Reserve Fund . . . . . . . . . . . . . . . . .39
Section 5.08. Funding Account. . . . . . . . . . . . . . . .39
Section 5.09. Statements to Certificateholders; Tax Returns. 39
Section 5.10. Reliance on Information from the Servicer. . . 43
ARTICLE VI
RIGHTS OF CERTIFICATEHOLDERS . . . . . . . 43
ARTICLE VII
THE CERTIFICATES
Section 7.01. The Certificates . . . . . . . . . . .. . . 43
Section 7.02. Execution, Authentication of Certificates . . 44
Section 7.03. Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . 44
Section 7.04. Mutilated, Destroyed, Lost or Stolen
Certificates. . . . . . . .. . . . . . . . . 47
Section 7.05. Persons Deemed Owners . . . . . . . . . . . . 47
Section 7.06. Access to List of Certificateholders' Names
and Addresses. . . . . . . . . . . .. . . . .47
Section 7.07. Maintenance of Office or Agency. . . . . . . .48
Section 7.08. Notices to Certificateholders . . . . . . . . 48
ARTICLE VIII
THE SELLER
Section 8.01. Representations of Seller . . . . . . . . . . . . . 48
Section 8.02. Liability of Seller;Indemnities. . . . . . . . . . 51
Section 8.03. Merger or Consolidation of, or
Assumption of the Obligations of, Seller. . . . . . 52
Section 8.04. Limitation on Liability of Seller and Others. . . . 53
Section 8.05. Seller May Own Certificates . . . . . . . . . . . . 53
Section 8.06. Covenants of the Seller . . . . . . . . . . . . . . 53
Section 8.07. Enforcement by Trustee. . . . . . . . . . . . . . .54
Section 8.08. No Bankruptcy Petition . . . . . . . . . . . . . . 57
ARTICLE IX
THE BACKUP SERVICER
Section 9.01. Representations of Backup Servicer. . . . . . . . . 57
Section 9.02. Merger or Consolidation of, or Assumption of the
Obligations of, or Resignation of Backup Servicer . 58
Section 9.03. Limitation on Liability of Backup Servicer and
Others . . . . . . . . . . . . . . . . . . 58
Section 9.04. Successor Backup Servicer . . . . . . . . . . . . .59
Section 9.05. No Bankruptcy Petition . . . . . . . . . . . . . . 59
ARTICLE X
BACKUP SERVICING DEFAULT
Section 10.01. Events of Backup
Servicing Default. . . . . . . . 60
Section 10.02. Appointment of Successor. . . . . . . . . . . . .61
Section 10.03. Notification to Certificateholders . . . . . . . 61
Section 10.04. Waiver of Past Defaults . . . . . . . . . . . . 62
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee . . 62
Section 11.02. Trustee's Certificate. . . . . . . . . . . . . . . 64
Section 11.03. Trustee's Assignment of Purchased Receivables. . . 65
Section 11.04. Certain Matters Affecting Trustee. . . . . . . . . 65
Section 11.05. Trustee Not Liable for Certificates or Receivables.66
Section 11.06. Trustee May Own Certificates . . . . . . . . . . . 67
Section 11.07. Trustee's Fees and Expenses . .. . . . . . . . . . 67
Section 11.08. Eligibility Requirements for Trustee . . . . ......67
Section 11.09. Resignation or Removal of Trustee . . . . . . . . 68
Section 11.10. Successor Trustee . . . . . . . .. . . .. . . . 68
Section 11.11. Merger or Consolidation of Trustee . . . . . . . 69
Section 11.12. Appointment of Co-Trustee or Separate Trustee. . . 69
Section 11.13. Representations and Warranties of Trustee . . . . 70
Section 11.14. No Bankruptcy Petition . . . . . . . . . . . .. . 71
ARTICLE XII
TERMINATION
Section 12.01. Termination of the Trust. . . . . . . . . . . . . . . 71
Section 12.02. Optional Purchase of All Receivables. . . . . . . . . 73
Section 12.03. Notice. . . . . . . . . . . . . . . . . . . 73
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment . . . . . . 73
Section 13.02. Protection of Title to Trust. . . . . . . . . . . . . 74
Section 13.03. Limitation on Rights of Certificateholders. . . . . . 75
Section 13.04. Governing Law . . . . . . . . . . . . . . . 75
Section 13.05. Notices . . . . . . . .. . . . . . . . . . 76
Section 13.06. Severability of Provisions . . . . . . . . . . . . .76
Section 13.07. Assignment. . . . . . . . . . . . . . . . . 77
Section 13.08. Certificates Nonassessable and Fully Paid . . . . . . 77
Section 13.09. Counterparts. . . . . . . . . . . . . . . . 77
Section 13.10. Limited Recourse to Seller . . . . . . . . . . . . . .77
EXHIBIT A Forms of Certificates . .A-1-1
EXHIBIT B [Reserved]. . . . . . . . .B-1
EXHIBIT C Form of Trustee's Statement
to Certificateholders. . ..C-1
EXHIBIT D [Reserved]. . . . . . . . .D-1
EXHIBIT E Location of Servicer Files E-1
EXHIBIT F1 [Reserved]. . . . . . . .F-1-1
EXHIBIT F2 [Reserved]. . . . . . . .F-2-1
EXHIBIT G Wiring Instructions Form .G-1
EXHIBIT H [Reserved]. . . . . . . . .H-1
EXHIBIT I Risk Default Insurance
Policy. . . . . . . . . . .I-1
EXHIBIT J VSI Insurance Policy. . . .J-1
EXHIBIT K Form of Transferee Letter
(Rule 144A Transfer) . . .K-1
EXHIBIT L Form of Transferee Letter
(Non-Rule 144A Transfer) . L-1
EXHIBIT M Form of ERISA
Representation Letter . . . . . . . . . .M-1
EXHIBIT N Form of Notice of Funding.. N-1
EXHIBIT O Form of Officer's
Certificate . . . . . . .O-1
EXHIBIT P Assignment. . . . . . . . .P-1
EXHIBIT Q [Reserved]. . . . . . . . .Q-1
EXHIBIT R Form of Trustee's
Certificate . . . . . . . .R-1
EXHIBIT S [Reserved]. . . . . . . . .S-1
STANDARD TERMS AND CONDITIONS
INTRODUCTION
The following Standard Terms and
Conditions shall be applicable to each Trust formed
by the Seller pursuant to the foregoing Master Trust
Agreement, with respect to which a Pooling and
Servicing Agreement incorporating by reference
these Standard Terms and Conditions shall have
been executed, subject to such modifications as may
be specified in such particular Pooling and
Servicing Agreement and as may be permitted
under Article V of the Master Trust Agreement.
ARTICLE I
DEFINITIONS
Whenever used in these Standard Terms, the
following words and phrases, unless the context
otherwise requires, shall have the following
meanings:
"Accounts" shall mean the accounts and
funds identified in Section 5.01 hereof.
"Additional Receivables" means all
Receivables sold by the Seller to the Trust after the
Closing Date and during the Funding Period, if any,
which shall be listed on Schedule A to the related
assignment, delivered pursuant to the Agreement.
"Aegis Finance" means Aegis Auto Finance,
Inc., a Delaware corporation, its successors and
assigns.
"Aegis Finance Servicing Agreement" means
the Servicing Agreement providing for the servicing
of the Receivables among Aegis Finance, the
Backup Servicer and the Trustee, and all
amendments, modifications and supplements
thereto.
"Affiliate" of any Person means any other
Person which, directly or indirectly, controls, is
controlled by or is under common control with such
Person. A Person shall be deemed to be
"controlled by" any other Person if such other
Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities
(on a fully diluted basis) having ordinary voting
power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the
management and policies of such Person whether by
contract or otherwise.
"Agreement" means the Pooling and
Servicing Agreement executed by the Seller, the
Backup Servicer and the Trustee as of the date set
forth thereon, into which these Standard
Terms and Conditions shall be incorporated by
reference, and all amendments, modifications and
supplements thereto.
"Amount Financed" means, with respect to
a Receivable, the amount advanced under the
Receivable toward the purchase price of the
Financed Vehicle and any related costs.
"Annual Percentage Rate" or "APR" means,
with respect to a Receivable, the annual rate of
finance charges stated in the Receivable.
"Available Interest Distribution Amount"
means, for any Distribution Date, the sum of the
following amounts with respect to the preceding
Collection Period: (i) that portion of all collections
of Scheduled Payments on Receivables allocable to
interest; (ii) Liquidation Proceeds and other
Recoveries to the extent allocable to interest due on
Liquidated Receivables and Defaulted Receivables
in accordance with the Servicer's customary
servicing procedures; (iii) Risk Default Insurance
Proceeds to the extent allocable to interest as
determined by the Servicer; (iv) the earnings, if
any, on amounts in the Funding Account (if any)
accrued during the related Collection Period, and
for the initial Distribution Date, such earnings as
have accrued to such date; and (v) the Purchase
Amount of each Receivable that became a
Purchased Receivable during the related Collection
Period to the extent attributable to accrued interest
thereon; provided, however, that in calculating the
Available Interest Distribution Amount the
following will be excluded: all payments and
proceeds (including Liquidation Proceeds) of any
Purchased Receivables the Purchase Amount of
which has been included in the Principal
Distributable Amount with respect to a prior
Distribution Date.
"Available Principal Distribution Amount"
means, for any Distribution Date, the sum of the
following amounts with respect to the preceding
Collection Period: (i) that portion of all collections
of Scheduled Payments and prepayments in full or
in part on Receivables allocable to principal; (ii)
Liquidation Proceeds and other Recoveries allocable
to the principal amount of Liquidated Receivables
and Defaulted Receivables in accordance with the
Servicer's customary servicing procedures; (iii)
Risk Default Insurance Proceeds to the extent not
allocable to interest as determined by the Servicer;
(iv) amounts deposited in the Collection Account
pursuant to Section 3.02(b) in respect of
Receivables that became Substitute Receivables
during the related Collection Period; and (v) to the
extent attributable to principal, the Purchase
Amount of each Receivable that became a
Purchased Receivable during the preceding
Collection Period; provided, however, that in
calculating the Available Principal Distribution
Amount the following will be excluded: all
payments and proceeds (including Liquidation
Proceeds) of any Purchased Receivables the
Purchase Amount of which has been included in the
Principal Distributable Amount with respect to a
prior Distribution Date.
"Backup Servicer" means Norwest Bank
Minnesota, National Association, until any
successor Backup Servicer is appointed or succeeds
to the duties and obligations of the Backup Servicer
hereunder, and thereafter means the Eligible
Servicer appointed successor Backup Servicer
pursuant to Section 9.02 or 10.02.
"Bankruptcy Code" means the federal
Bankruptcy Code of 1978, as amended, 11 US
101 through 1330.
"Business Day" means any day other than a
Saturday, a Sunday, or a day on which banking
institutions (including the Federal Reserve Bank, if
applicable) in the cities in which the principal
offices of the Trustee or the Servicer are located, or
New York, New York, or Jersey City, New Jersey
shall be authorized or obligated by law, executive
order, or governmental decree to be closed. Any
action required to be taken on a day which falls on
a non-Business Day shall be conducted on the next
Business Day.
"Certificate" means a Class A Certificate or
a Class B Certificate.
"Certificate Account" means the trust
account designated as such, established and
maintained pursuant to Section 5.01.
"Certificate Register" and "Certificate
Registrar" mean the register maintained and the
registrar appointed pursuant to Section 7.03.
"Certificateholder" or "Holder" means the
Person in whose name the respective Certificate
shall be registered in the Certificate Register,
except that, solely for the purposes of giving any
approval, consent, waiver, request or demand
pursuant to this Agreement, the interest evidenced
by any Certificate registered in the name of the
Seller, the Servicer, the Backup Servicer, the
Trustee or any Affiliate of any of the foregoing
shall not be taken into account in determining
whether the requisite percentage necessary to effect
any such consent, waiver, request or demand shall
have been obtained.
"Certificateholder Statement" means the
Statement the form of which is attached hereto as
Exhibit C.
"Class" means all Certificates having the
same priority of payment and bearing the same
alphabetical designation (A or B).
"Class A Certificate" means any one of the
Certificates executed by the Trustee on behalf of the
Trust and authenticated by the Trustee in
substantially the form set forth in Exhibit A-1
hereto.
"Class A Certificate Balance" shall equal,
initially, the Class A Percentage of the aggregate
Principal Balance of the Initial Receivables as of the
initial Cutoff Date plus the Class A Percentage of
the Original Pre-Funded Amount, if any, and,
thereafter, the initial Class A Certificate Balance,
reduced by all amounts previously distributed to
Class A Certificateholders as principal.
"Class A Distributable Amount" means, on
any Distribution Date, the sum of the Class A
Interest Distributable Amount and the Class A
Principal Distributable Amount.
"Class A Interest Carryover Shortfall"
means, as of the close of any Distribution Date, the
excess of the Class A Interest Distributable Amount
for such Distribution Date plus any outstanding
Class A Interest Carryover Shortfall from the
previous Distribution Date plus interest on such
outstanding Class A Interest Carryover Shortfall, to
the extent permitted by law, at the Class A Rate
from such preceding Distribution Date through the
current Distribution Date, over the amount of
interest that the holders of the Class A Certificates
actually received on such Distribution Date.
"Class A Interest Distributable Amount"
means, (i) for any Distribution Date (other than the
Initial Distribution Date), one-twelfth of the product
of (x) the Class A Rate and (y) the Class A
Certificate Balance as of the close of business on
the preceding Distribution Date (after giving effect
to any distribution of principal on the Class A
Certificates made on such preceding Distribution
Date) and (ii) for the Initial Distribution Date, the
product of (x) the Class A Rate, (y) the initial Class
A Certificate Balance and (2) a fraction the
numerator of which is the number of days from and
including the Closing Date to and including the end
of the calendar month in which the Closing Date
occurs, and the denominator of which is 360.
"Class A Percentage" has the meaning set
forth in the Agreement.
"Class A Principal Carryover Shortfall"
means, as of the close of any Distribution Date, the
excess of the Class A Principal Distributable
Amount plus any outstanding Class A Principal
Carryover Shortfall from the preceding Distribution
Date over the amount of principal that the holders
of the Class A Certificates actually received on such
Distribution Date pursuant to Section 5.06.
"Class A Principal Distributable Amount"
means, with respect to any Distribution Date, the
Class A Percentage of the Principal Distributable
Amount.
"Class B Certificate" means any one of the
Certificates executed by the Trustee on behalf of the
Trust and authenticated by the Trustee in
substantially the form set forth in Exhibit A-2
hereto.
"Class B Certificate Balance" shall equal,
initially, the Class B Percentage of the aggregate
Principal Balance of the Initial Receivables as of the
initial Cutoff Date plus the Class B Percentage of
the Original Pre-Funded Amount, if any, and,
thereafter, the initial Class B Certificate Balance,
reduced by all amounts previously distributed to
Class B Certificateholders as principal.
"Class B Distributable Amount" means, on
any Distribution Date, the sum of the Class B
Interest Distributable Amount and the Class B
Principal Distributable Amount.
"Class B Interest Distributable Amount"
means, (i) for any Distribution Date (other than the
Initial Distribution Date), one-twelfth of the product
of (x) the Class B Rate and (y) the Class B
Certificate Balance as of the close of business on
the preceding Distribution Date (after giving effect
to any distribution of principal on the Class B
Certificates made on such preceding Distribution
Date) and (ii) for the Initial Distribution Date, the
sum of (1) the product of (x) the Class B Rate, (y)
the initial Class B Certificate Balance and (z) a
fraction the numerator of which is the number of
days from and including the Closing Date to and
including the end of the calendar month in which
the Closing Date occurs, and the denominator of
which is 360, plus (2) an amount equal to that
portion of the purchase price of the Class B
Certificates under the Master Certificate Purchase
Agreement equal to the interest payable under the
Warehouse Facility.
"Class B Percentage" has the meaning set
forth in the Agreement.
"Class B Principal Carryover Shortfall"
means, as of the close of any Distribution Date, the
excess of the Class B Principal Distributable
Amount plus any outstanding Class B Principal
Carryover Shortfall from the preceding Distribution
Date over the amount of principal that the holders
of the Class B Certificates actually received on such
Distribution Date pursuant to Section 5.06.
"Class B Principal Distributable Amount"
means, as of any Distribution Date, the Class B
Percentage of the Principal Distributable Amount.
"Class Certificate Balance" means, with
respect to the applicable Class of Certificates, the
Class A Certificate Balance or the Class B
Certificate Balance.
"Class Factor" means, with respect to any
Distribution Date and any Class of Certificates, a
seven-digit decimal figure computed by the Trustee
equal to the Class Certificate Balance of such Class
as of such Distribution Date divided by the Original
Class Certificate Balance thereof.
"Class Percentage" means, with respect to
the applicable Class of Certificates, the Class A
Percentage or the Class B Percentage.
"Clearing Agency" means an organization
registered as a "clearing agency" pursuant to
Section 17A of the Exchange Act.
"Clearing Agency Participant" means a
broker, dealer, bank, other financial institution or
other Person for whom from time to time a
Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing
Agency.
"Closing Date" shall be determined
separately for each Trust and shall be specified in
the corresponding Agreement.
"Code" means the Internal Revenue Code of
1986, as amended.
"Collection Account" means the trust account
designated as such, established and maintained
pursuant to Section 5.01.
"Collection Period" means, with respect to
a Distribution Date, the calendar month
immediately prior to such Distribution Date. Any
amount stated "as of the close of business of the last
day of a Collection Period" shall give effect to the
following calculations as determined as of the end
of the day on such last day: (1) all applications of
collections, and (2) all distributions.
"Corporate Trust Office" means the office of
the Trustee at which its corporate trust business
shall be administered, which office at the date of
this Agreement shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Services --Asset-Backed
Administration, or such other address as shall be
designated by the Trustee in written notice to the
Seller, the Backup Servicer, the Servicer and each
Certificateholder.
"Custodian" means the Person acting as
Custodian of the Trust pursuant to Section 3.03, its
successor in interest and any successor custodian.
"Custodian Fees" shall have the meaning set
forth in the Agreement.
"Custodian Files" means the documents
specified in Section 3.03(a).
"Dealer" means any licensed or franchised
factory-authorized motor vehicle dealer, or affiliate
thereof, who sold a Financed Vehicle to an Obligor
and who originated the respective Receivable which
was acquired by Aegis Finance.
"Dealer Recourse" means, with respect to a
Receivable, all recourse rights against the Dealer
that originated the Receivable, and any successor
Dealer.
"Defaulted Receivable" means any
Receivable, other than a Liquidated Receivable, as
to which the Obligor became 90 days past due
(calculated on the basis of a 360-day year of 12 30-
day months) in making Scheduled Payments during
the prior Collection Period.
"Demand Note" has the meaning set forth in
Section 3.2(b) of the Master Trust Agreement.
"Delivery Date" has the meaning set forth in
Section 3.08(b)(i).
"Determination Date" means, with respect to
any Distribution Date, the eighth (8th) Business
Day of the calendar month of such Distribution
Date; provided, however, if such Business Day is
later than the eleventh (11th) day of such month,
then the Determination Date shall mean the next
earlier Business Day which is not later than the
eleventh (11th) day of such calendar month.
"Discount Rate" has the meaning set forth in
the Agreement.
"Dissolution" means, with respect to the
Seller, bankruptcy, insolvency or dissolution.
"Distribution Date" means, for each
Collection Period, the 20th day of the month
following the month in which the Collection Period
ends, or if the 20th day is not a Business Day, the
next following Business Day, beginning on the
Initial Distribution Date.
"Eligible Account" means a segregated
account (except as otherwise permitted with respect
to the Lock-Box Account) which may be an account
maintained with the Trustee, which is either (a)
maintained with an Eligible Institution, or (b) a
segregated trust account or similar account
maintained with a federally or state chartered
depository institution subject to regulations
regarding fiduciary funds on deposit substantially
similar to 12 C.F.R. 9.10(b).
"Eligible Institution" means a depository
institution or trust company whose long-term
unsecured debt obligations are rated at least "A" by
S&P or "A2" by Moody's (provided that, if only
one such rating agency rates such institution, such
single rating shall suffice).
"Eligible Investments" means negotiable
instruments or securities or other investments (a)
which, except in the case of demand or time
deposits, investments in money market funds and
repurchase obligations, are represented by
instruments in bearer or registered form or
ownership of which is represented by book entries
by a clearing agency or by a Federal Reserve Bank
in favor of depository institutions eligible to have an
account with such Federal Reserve Bank who hold
such investments on behalf of their customers and
(b) which evidence:
(i) direct obligations of, and
obligations fully guaranteed as to full and
timely payment by, the United States of
America;
(ii) demand deposits, time
deposits or certificates of deposit of
depository institutions or trust companies
incorporated under the laws of the United
States of America or any state thereof and
subject to supervision and examination by
federal or state banking or depository
institution authorities; provided, however,
that at the time of the Trust's investment or
contractual commitment to invest therein,
the short-term unsecured debt obligations of
such depository institution or trust company
shall have credit ratings from either S&P or
Moody's in the highest investment category
granted by S&P or Moody's, as applicable;
(iii) commercial paper having, at
the time of the Trust's investment or
contractual commitment to invest therein, a
rating from either S&P or Moody's in the
highest investment category by S&P or
Moody's;
(iv) bankers' acceptances issued
by any depository institution or trust
company referred to in (ii) above;
(v) investments in money market
funds having the highest investment category
from either S&P or Moody's (such
investments may include money market
funds sponsored by Norwest Bank
Minnesota, National Association that have a
credit rating from either S&P or Moody's);
(vi) time deposits (having
maturities of not more than 30 days) or
notes which are payable on demand by an
entity the commercial paper of which has
the highest investment category granted by
either S&P or Moody's; and
(vii) repurchase obligations with
respect to any security described in clause
(i) above entered into with a depository
institution or trust company (acting as
principal) meeting the rating standards
described in clause (ii) above.
Any Eligible Investments may be purchased by or
through the Trustee or any of its affiliates.
"Eligible Servicer" means any entity which,
at the time of its appointment as Backup Servicer,
Servicer or subservicer, and for so long as such
entity is acting in such capacity, (i) is servicing a
portfolio of motor vehicle retail installment sale
contracts or motor vehicle loans, (ii) is legally
qualified (or is acting through an Affiliate which is
legally qualified) and has the capacity to service the
Receivables, (iii) has demonstrated the ability to
professionally and competently service a portfolio
of similar contracts in accordance with industry
standards of skill and care, (iv) is qualified and
entitled to use, and agrees to maintain the
confidentiality of, the software that the Backup
Servicer, Servicer or a subservicer uses in
connection with performing its duties and
responsibilities under this Agreement, a supervisory
servicing agreement, the Servicing Agreement or a
subservicing agreement or obtains rights to use or
develops its own software which is adequate to
perform its duties and responsibilities under this
Agreement, a supervisory servicing agreement, the
Servicing Agreement or a subservicing agreement
and (v) is approved by the Risk Default Insurer.
"ERISA" means the Employee Retirement
Income Security Act of 1974, as amended.
"ERISA-Restricted Certificate" means any
Class B Certificate.
"Event of Backup Servicing Default" with
respect to the Backup Servicer means an event
specified in Section 10.01.
"Event of Servicing Default" means an event
specified in paragraph VI of the Servicing
Agreement.
"Excess Interest Collections" has the
meaning set forth in Section 5.05(b).
"Excess Receipts" means, with respect to any
Distribution Date, the remaining amount on deposit
in the Collection Account after all distributions
pursuant to Section 5.06 have been made.
"Exchange Act" means the Securities
Exchange Act of 1934, as amended.
"Final Funding Date" means the date upon
which the balance in the Funding Account is
reduced to zero.
"Financed Vehicle" means an automobile or
light-duty truck, together with all accessions
thereto, securing an Obligor's indebtedness under
the respective Receivable.
"Funding Account" means the trust account,
if any, designated as such, established and
maintained pursuant to the Agreement and
Sections 5.01 and 5.08 hereof.
"Funding Date" means each date occurring
no more than once per calendar week during the
Funding Period, if any, on which Additional
Receivables are sold to the Trust.
"Funding Event" shall mean, with respect to
a Funding Date, if any, the occurrence of the events
required to occur in accordance with Section 3.08.
"Funding Period" has the meaning set forth
in the Agreement, which in no case shall be more
than fifteen days from the Closing Date of the
corresponding Trust.
"Initial Distribution Date" has the meaning
set forth in the Agreement.
"Initial Receivables" means all Receivables
sold to the Trust by the Seller on the Closing Date.
"Insurance Policy" means, with respect to a
Receivable, any comprehensive, collision, fire and
theft insurance policy required to be maintained by
the Obligor with respect to the Financed Vehicle,
the VSI Insurance Policy, and any credit life and
disability insurance maintained by the Obligor or
Seller and benefitting the holder of the Receivable.
"Investment Company Act" means the
Investment Company Act of 1940, as amended.
"Lien" means a security interest, lien,
charge, pledge, equity or encumbrance of any kind.
"Liquidated Receivable" means any
Receivable, other than a Receivable that first
became a Defaulted Receivable, liquidated by the
Servicer through sale of the Financed Vehicle or
otherwise.
"Liquidation Proceeds" means the moneys
collected during the respective Collection Period on
a Liquidated Receivable, whether through
foreclosure or otherwise, other than Risk Default
Insurance Proceeds, net of the sum of any amounts
expended by the Servicer for the account of the
Obligor and the expenses incurred in the
liquidation.
"Lock-Box Account" means the account(s)
designated as such, established and maintained
pursuant to Section 5.01 hereof, into which account
shall be deposited only those moneys collected with
respect to the Receivables as contemplated herein
and moneys collected with respect to other retail
installment sales contracts originated or purchased
by Aegis Finance or its Affiliates.
"Lock-Box Account Depository" means each
of ▇▇▇▇▇ Fargo Bank, N.A., and Commerce Bank,
acting as Lock-Box Account Depository hereunder,
its successors in interest and any successors
appointed pursuant to paragraph IX of the Servicing
Agreement.
"Majority Certificateholders" means Holders
of Certificates evidencing not less than 51% of the
Voting Interests of each Class thereof.
"Master Certificate Purchase Agreement"
means the Master Certificate Purchase Agreement
dated March 14, 1997 among the Seller, The Aegis
Consumer Funding Group, Inc., III Finance Ltd.,
III Global Ltd. and III Limited Partnership, as
amended, supplemented or restated.
"Master Trust Agreement" means the Master
Trust Agreement dated as of March 1, 1997 by and
between the Seller and the Trustee, as amended.
"Miscellaneous Servicer Collections" means,
with respect to a Collection Period, all late charges,
extension fees and recoveries of expenses relating to
liquidation, repossession and other costs previously
incurred by the Servicer.
"Monthly Servicing Certificate" means the
certificate substantially in the form of Schedule B to
the Servicing Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service
or any successors thereto.
"Net Loss" means, with respect to a
Collection Period, the sum of the Principal Balances
of Receivables that became Liquidated Receivables
or Defaulted Receivables during such Collection
Period, minus Recoveries and Risk Default
Insurance Proceeds (to the extent allocable to
principal) received in such Collection Period.
"Nonconforming Insured Receivables" means
Receivables which were not originated in
accordance with the Underwriting Guidelines but
which are covered by a Risk Default Insurance
Policy.
"Notice of Funding" has the meaning set
forth in Section 3.08(b)(ii)(C).
"Obligor" means, with respect to a
Receivable, the purchaser or co-purchasers of the
Financed Vehicle and/or any other Person who
owes payments under such Receivable.
"Officer's Certificate" means a certificate
signed by the chairman of the board, the president,
any vice chairman of the board, any vice president,
any assistant vice president, any trust officer, the
treasurer, the controller or any assistant treasurer or
any assistant controller of the Seller, the Trustee,
the Servicer, the Custodian or the Backup Servicer,
as appropriate.
"Opinion of Counsel" means a written
opinion of counsel who may but need not be
counsel to the Seller or Servicer, which counsel
shall be acceptable to the Trustee.
"Optional Purchase Percentage" means 10%
of the Original Pool Balance.
"Original Certificate Balance" means, as to
any Certificate, the initial certificate balance stated
on the face of such Certificate.
"Original Pool Balance" means the initial
Principal Balance of all Receivables (including
Additional Receivables) as of their respective Cutoff
Dates.
"Original Pre-Funded Amount" means the
amount deposited in the Funding Account, if any,
on the Closing Date, which amount shall not exceed
30% of the Original Pool Balance.
"Pass-through Rate" means, with respect to
the applicable Class of Certificates, the Class A
Rate or the Class B Rate.
"Percentage Interest" means, with respect to
any Certificate, the percentage ownership interest of
such Certificate in the aggregate of amounts
distributable hereunder to the related Class of
Certificates. With respect to any Certificate, the
Percentage Interest evidenced thereby shall equal
the Original Certificate Balance thereof divided by
the aggregate Original Class Certificate Balance of
the related Class.
"Person" means any individual, corporation,
estate, partnership, limited liability company, joint
venture, association, joint stock company, trust,
unincorporated organization, or government or any
agency or political subdivision thereof.
"Plan" means an employee benefit plan
subject to ERISA or a plan or other retirement
arrangement subject to Section 4975 of the Code.
"Pool Balance" means, as of the day of
calculation, the aggregate Principal Balance of the
Receivables less Net Losses.
"Pool Factor" means, as of any Distribution
Date, a seven-digit decimal figure equal to the Pool
Balance for such Distribution Date divided by the
Original Pool Balance.
"Principal Balance" means, with respect to
any Receivable at any time, the Amount Financed
minus the sum of (a) the portion of all payments
made by or on behalf of the related Obligor and
allocable to principal using the Simple Interest
Method and (b) the portion of any payment of the
Purchase Amount with respect to the Receivable
allocable to principal, calculated as of the close of
business on the last day of the prior Collection
Period (or, prior to the end of the first Collection
Period, calculated as of the close of business on the
day immediately prior to the Cutoff Date).
"Principal Distributable Amount" means,
with respect to any Distribution Date the sum of: (i)
the portion of all Scheduled Payments allocable to
principal (including delinquent payments) collected
during the preceding Collection Period on the
Receivables; (ii) the principal portion of all
prepayments in full or in part received during the
preceding Collection Period (without duplication of
amounts included in clause (i) above); (iii) the
Principal Balance of each Receivable that became a
Purchased Receivable during the preceding
Collection Period (without duplication of amounts
referred to in clauses (i) and (ii) above); (iv) the
Principal Balance of each Receivable that became a
Liquidated Receivable during the preceding
Collection Period (without duplication of amounts
included in clause (i), (ii) and (iii) above), and (v)
the Principal Balance of each Receivable that
became a Defaulted Receivable during the preceding
Collection Period (without duplication of amounts
included in clause (i), (ii), (iii) and (iv) above);
provided, however, that in calculating the Principal
Distributable Amount the following will be
excluded: all payments and proceeds of any
Purchased Receivables the Purchase Amount of
which has been included in the Principal
Distributable Amount in a prior Collection Period.
Further, (i) with respect to the Distribution Date
immediately following the end of the Funding
Period, if any, the principal required to be
distributed to Certificateholders shall include an
amount equal to the remaining balance in the
Funding Account on the last day of the Funding
Period, to the extent allocable to principal, and (ii)
with respect to the Distribution Date following the
substitution of a Receivable pursuant to Section
3.02, the principal required to be distributed to
Certificateholders shall include the difference, if
any, between the outstanding Principal Balance of
the replaced Receivable and the outstanding
Principal Balance of the substitute Receivable.
"Purchase Agreement" means the Master
Purchase Agreement dated as of March 1, 1997
providing for Aegis Finance's sale of the
Receivables to the Seller.
"Purchase Amount" means the amount, as of
the close of business on the last day of a Collection
Period, required to prepay in full the respective
Receivable under the terms thereof, including the
principal amount thereof and interest to the end of
such Collection Period.
"Purchased Receivable" means a Receivable
purchased as of the close of business on the last day
of a Collection Period by the Seller or by Aegis
Finance on behalf of the Seller pursuant to the
Purchase Agreement.
"Rated Certificates" means each Class of
Certificates, if any, that has been rated by a Rating
Agency at the request of the Seller.
"Rated Entity" shall mean a Person whose
long-term unsecured debt obligations (at the time of
the transfer under Section 7.03) are rated within the
investment grade categories of either Moody's or
S&P.
"Rating Agency" means any statistical credit
rating agency, or its successor, providing a rating
for any of the Certificates at the request of the
Seller.
"Receivable" means any retail installment
sales contract and security agreement identified on
the Schedule of Receivables. Any Receivable
transferred to a Trust hereunder shall be the sole
and exclusive property of such Trust, subject to the
rights of the Seller therein.
"Receivables Cash Purchase Price" means
with respect to any Additional Receivable, an
amount equal to 100% of the Principal Balance of
such Additional Receivable (or 92% if such
Additional Receivable is Uninsured).
"Record Date" means the last day of the
Collection Period preceding a Distribution Date or
termination of the Trust.
"Recoveries" means all amounts received
(net of out-of-pocket costs of collection), other than
Risk Default Insurance Proceeds, with respect to
Defaulted Receivables and Liquidated Receivables.
"Refunding Event" means the transfer of
remaining funds in the Funding Account, if any, to
the Certificate Account and distribution to the
Certificateholders on a pro rata basis, on the
Distribution Date immediately following the end of
the Funding Period, of such remaining funds in the
Funding Account in accordance with Section 5.06
hereof.
"Required Deposit Rating" means a rating of
an institution which has either short-term deposits
of "P-1" by Moody's, or short-term deposits of
"A-1+" by S&P; and any requirement that deposits
have the "Required Deposit Rating" shall mean that
such deposits have the foregoing required ratings by
Moody's or S&P.
"Reserve Fund" means the separate fund
established and maintained pursuant to the Master
Trust Agreement outside of the Trust.
"Reserve Fund Draw" has the meaning
specified in the Master Trust Agreement.
"Reserve Fund Initial Deposit" shall be
determined separately for each Trust, shall be
specified in the corresponding Agreement, and shall
be equal to the present value of the "Term Note"
which is a permitted investment under Section
3.2(b) of the Master Trust Agreement, discounted
at the Discount Rate.
"Reserve Fund Property" has the meaning
specified in the Master Trust Agreement.
"Reserve Requirement" means the greater of
(i) $1,000,000 and (ii) 5% of the aggregate
outstanding Principal Balance of the Receivables of
all Trusts which are outstanding as of the date of
determination.
"Residual Interest" means the right of the
Seller to all distributions from, and assets of, the
Trust, after payment in full of the fees and expenses
of the Backup Servicer, the Servicer, the Trustee
and the Custodian and payment in full of the
Certificates upon termination of this Agreement.
"Retention Amount" means the insured's
deductible (initially equal to 10% of the aggregate
insured portion of the Amount Financed of the
Receivables) under the terms of the Risk Default
Policy as described therein.
"Risk Default Insurance Policy" or "Risk
Default Policy" means each insurance policy listed
on Exhibit I issued by the Risk Default Insurer,
which shall show Aegis Finance as named insured
and the Trustee as an additional insured or pool
certificate holder thereunder, including all
endorsements thereto, the original of which policy
and endorsements shall be delivered to the
Custodian on or prior to the Closing Date.
"Risk Default Insurance Proceeds" means the
proceeds received by the Trustee, the Backup
Servicer, the Servicer, the insured or any other
Person under the Risk Default Policy, which
proceeds shall include allocations to principal and
interest as determined by the Servicer.
"Risk Default Insurer" means The
Connecticut Indemnity Company, its successors and
assigns, or Empire Fire & Marine Insurance Co., a
division of Zurich Insurance Company, its
successors and assigns.
"Schedule of Receivables" means the list of
Receivables annexed to the Agreement as Appendix
A; provided that such Appendix A shall be deemed
to be amended on each Funding Date, if any, to add
Additional Receivables acquired by the Trust on
each such date pursuant to the Agreement.
Appendix A shall include an indication of any
Receivables that are Uninsured Receivables or
Nonconforming Insured Receivables.
"Scheduled Payment" means the fixed
payment required to be made by the Obligor during
the respective Collection Period sufficient to fully
amortize the Principal Balance under the Simple
Interest Method over the term of the Receivable and
to provide interest at the applicable APR, including
any delinquent payment; provided, however, that
"Scheduled Payment" does not include
Miscellaneous Servicer Collections.
"Securities Act" means the Securities Act of
1933, as amended.
"Seller" means Aegis Auto Funding Corp.
IV, a Delaware corporation, as the seller of the
Receivables to the Trust under this Agreement, and
its successors (in the same capacity) pursuant to
Section 8.03.
"Servicer" means Aegis Finance, as servicer
of the Receivables pursuant to the Servicing
Agreement or any other Eligible Servicer acting as
servicer pursuant to the Servicing Agreement in
accordance with Section 4.01, as the context may
require.
"Servicer Files" shall have the meaning set
forth in Section 3.03(b).
"Servicing Agreement" means the Aegis
Finance Servicing Agreement or another servicing
agreement entered into by the Backup Servicer and
the Trustee with an Eligible Servicer which shall be
substantially in the form of the Aegis Finance
Servicing Agreement or such other form as shall be
approved by the Majority Certificateholders.
"Servicing Fee" means the fee payable to the
Servicer for services rendered during the respective
Collection Period, determined pursuant to the
Servicing Agreement.
"Servicing Officer" means any officer of the
Servicer involved in, or responsible for, the
administration and servicing of Receivables whose
name appears on a list of servicing officers attached
to an Officer's Certificate furnished to the Trustee
by the Servicer, as such list may be amended from
time to time.
"Simple Interest Method" means the method
of allocating a fixed level payment to principal and
interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the
product of the APR multiplied by the unpaid
principal balance multiplied by a fraction the
numerator of which is the number of days elapsed
since the preceding payment was made and the
denominator of which is 365.
"Simple Interest Receivable" means any
Receivable under which the portion of a payment
allocable to interest and the portion allocable to
principal is determined in accordance with the
Simple Interest Method.
"S&P" means Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successors thereto.
"SST" means System and Services
Technology, Inc., a Missouri corporation, its
successors and assigns.
"Standard Terms" means these Standard
Terms and Conditions, as the same may be
modified or amended from time to time.
"State" means any state of the United States
of America, or the District of Columbia.
"Subordinate Holder" means the Holder of
any Certificate that is subordinated in payment to
the Class A Certificates.
"Substitute Receivable" means any
replacement Receivable substituted for another
Receivable in accordance with Section 3.02(b).
"Total Available Distribution Amount"
means, for each Distribution Date, the sum of the
Available Interest Distribution Amount, the
Available Principal Distribution Amount and the
Miscellaneous Servicer Collections.
"Transition Costs" means an amount
necessary to reimburse the successor to the
Servicer, the Trustee or the Backup Servicer, as the
case may be, for reasonable costs and expenses
incurred in connection with such transition(s).
"Trust" means the Trust created by the
Agreement, the estate of which shall consist of the
Trust Property.
"Trust Property" shall have the meaning set
forth in Article II of the Agreement.
"Trustee" means the Person acting as
Trustee of the Trust under the Agreement, its
successor in interest and any successor trustee
pursuant to Section 11.10.
"Trustee Fee" shall have the meaning set
forth in the Agreement.
"Trustee Officer" means any vice president
or assistant vice president, any assistant secretary,
any trust officer or any other officer of the
Corporate Trust Department of the Trustee
customarily performing functions similar to those
performed by any of the above designated officers
and also means with respect to a particular
corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee's Certificate" means a certificate
completed and executed by the Trustee by a Trustee
Officer pursuant to Section 11.02, substantially in
the form of, in the case of an assignment to the
Seller, Exhibit R.
"UCC" means the Uniform Commercial
Code as in effect from time to time in the relevant
jurisdictions.
"Underwriting Guidelines" means the
underwriting guidelines of Aegis Finance with
respect to each of its programs, as in effect at the
time of origination of each Receivable.
"Uninsured Receivables" means Receivables
not covered by a Risk Default Insurance Policy.
"Vendor's Single Interest Physical Damage
Insurance Policy" or "VSI Insurance Policy" means
the insurance policy listed on Exhibit J issued by
the VSI Insurer, including all endorsements thereto.
"Voting Interests" means the portion of the
voting interests of all the Certificates that is
allocated to any Certificate for purposes of the
voting provisions of this Agreement. Voting
Interests shall be allocated to the Class A and Class
B Certificates, respectively, in proportion to their
Class Certificate Balances. Voting Interests
allocated to each Class of Certificates shall be
allocated among the Certificates within each such
class in proportion to their Certificate Balances.
Where the Voting Interests are relevant in
determining whether the vote of the requisite
percentage of the Certificateholders necessary to
effect any consent, waiver, request or demand shall
have been obtained, the Voting Interests shall be
deemed to be reduced by the amount equal to the
Voting Interests (without giving effect to this
provision) represented by the interests evidenced by
any Certificate registered in the name of the
Servicer, Aegis Finance, the Seller or any Person
known to a Trustee Officer to be an Affiliate of any
such foregoing entities, unless such entity owns all
affected Certificates.
"VSI Insurer" means Guaranty National
Insurance Company.
"Warehouse Facility" means the Loan and
Security Agreement dated as of March 14, 1997
among Aegis Finance, III Finance Ltd and III
Global Ltd.
ARTICLE II
INTERPRETATION
Section 2.01. Usage of Terms. With
respect to all terms in these Standard Terms, the
singular includes the plural and the plural the
singular; words importing any gender include the
other genders; references to "writing" include
printing, typing, lithography and other means of
reproducing words in a visible form; references to
agreements and other contractual instruments
include all subsequent amendments thereto or
changes therein entered into in accordance with
their respective terms and not prohibited by these
Standard Terms; references to Persons include their
permitted successors and assigns; and the term
"including" means "including without limitation."
Section 2.02. Cutoff Date and Record
Date. All references to the Record Date prior to
the first Record Date in the life of the Trust shall be
to the Closing Date.
Section 2.03. Section References. Unless
otherwise indicated, all section references shall be
to Sections in these Standard Terms.
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and
Warranties of Seller.
(a) The Seller makes the
following representations and warranties as
to the Receivables on which the Trustee
relies in accepting the Receivables in trust
on the Closing Date and each Funding Date
and executing and authenticating the
Certificates on the Closing Date. Such
representations and warranties speak as of
the Closing Date with respect to the Initial
Receivables and as of the related Funding
Date with respect to Additional Receivables
to be acquired on such date, but shall
survive the sale, transfer and assignment of
the Receivables to the Trustee.
(i) Characteristics of
Receivables. Each Receivable (A)
has been originated in the United
States of America by Aegis Finance
or a Dealer for the retail sale of a
Financed Vehicle in the ordinary
course of Aegis Finance's or such
Dealer's business, has been fully and
properly executed by the parties
thereto, and, if originated by a
Dealer, has been purchased by Aegis
Finance in the ordinary course of
business from such Dealer or has
been financed for such Dealer under
an existing agreement with Aegis
Finance, (B) has created a valid,
subsisting and enforceable first
priority security interest in favor of
Aegis Finance or the Dealer in the
Financed Vehicle, which security
interest, (1) if in favor of the Dealer,
has been assigned by the Dealer to
Aegis Finance, (2) in either case has
been duly assigned by Aegis Finance
to the Seller, and (3) has been
assigned by the Seller to the Trustee,
(C) is covered by the VSI Insurance
Policy and, except as identified on
the Schedule of Receivables, the Risk
Default Insurance Policy, (D)
contains customary and enforceable
provisions such that the rights and
remedies of the holder thereof are
adequate for realization against the
collateral of the benefits of the
security and (E) provides for level
monthly payments (provided that the
payment in the first or last month in
the life of the Receivable may be
different from the level payment) that
fully amortize the Amount Financed
over an original term of no greater
than 60 months and yield interest at
the Annual Percentage Rate.
(ii) Compliance With
Law. Each Receivable and the sale
of each Financed Vehicle (A)
complied at the time it was
originated or made and at the
Closing Date or the applicable
Funding Date, as the case may be,
complies in all material respects with
all requirements of applicable
federal, State and local laws and
regulations thereunder, including,
without limitation, usury laws, the
Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the
Fair Credit Reporting Act, the Fair
Debt Collection Practices Act, the
Federal Trade Commission Act, the
▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the
Federal Reserve Board's Regulations
B and Z, State adaptations of the
National Consumer Act and of the
Uniform Consumer Credit Code, and
other consumer credit laws and equal
credit opportunity and disclosure
laws and (B) does not contravene any
applicable contracts to which Aegis
Finance is a party and no party to
such contract is in violation of any
applicable law, rule or regulation
which is material to the Receivable
or the sale of the Financed Vehicle.
(ii) 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.
Each Receivable is denominated and
payable solely in U.S. dollars.
(iii) No Government
Obligor or Affiliate. None of the
Receivables is due from the United
States of America or any State or
local government or from any
agency, department or
instrumentality of the United States
of America or any State or local
government nor from any Affiliate of
Aegis Finance or the Seller.
(iv) Security Interest in
Financed Vehicle. Immediately prior
to the assignment and transfer
thereof, each Receivable is secured
by a validly perfected first priority
security interest in the related
Financed Vehicle in favor of the
Seller as secured party or all
necessary and appropriate actions
have been commenced that would
result in the valid perfection of a
first priority security interest in the
Financed Vehicle in favor of the
Seller as the secured party. The
Seller has caused each certificate of
title (or copy of an application for
title), or such other document
delivered by the state title
registration agency evidencing the
security interest in each Financed
Vehicle, to be delivered to the
Custodian pursuant to Section 3.03
hereof, together with a power of
attorney, duly executed by Aegis
Finance in favor of the Trustee,
which powers of attorney are
sufficient to change the lien holder
on the certificate of title with respect
to a Financed Vehicle.
(v) 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.
(vi) No Waiver. No
provision of a Receivable has been
waived, impaired, altered or
modified in any respect except in
accordance with the Servicing
Agreement, the substance of which is
reflected in the Schedule of
Receivables contained in the
Purchase Agreement as it relates to
the information included thereon.
(vii) No Amendments. No
Receivable has been amended such
that either the original Scheduled
Payment has been decreased or the
number of originally scheduled due
dates has been increased except as
permitted under the terms of the Risk
Default Policy covering such
Receivable.
(viii) No Defenses. No
right of rescission, setoff,
recoupment, counterclaim or defense
has been asserted or threatened with
respect to any Receivable.
(ix) No Liens. No Liens
or claims have been filed for work,
labor or materials relating to a
Financed Vehicle that are Liens prior
to, or equal or coordinate with, the
security interest in the Financed
Vehicle granted by the Obligor
pursuant to the Receivable.
(x) No Default. Except
for payment delinquencies continuing
for a period of not more than fifty-
nine days as of the applicable Cutoff
Date for any Receivable, no default,
breach, violation or event permitting
acceleration under the terms of any
Receivable has occurred; and no
continuing condition that with notice
or the lapse of time would constitute
a default, breach, violation or event
permitting acceleration under the
terms of any such Receivable has
arisen; and the Seller has not waived
any of the foregoing. As of the date
hereof and as of each Funding Date,
the Seller has no knowledge of any
facts regarding any particular
Receivable indicating that such
Receivable would not be paid in full.
(xi) Insurance. Each
Receivable is covered, as of the
Closing Date or Funding Date when
acquired, as the case may be, and
throughout the shorter of the term of
the Trust or the term of the
Receivable, under the VSI Insurance
Policy and, except as indicated on
the Schedule of Receivables, under
the Risk Default Insurance Policy,
and each such insurance policy is
valid and remains in full force and
effect. No more than one fifth of
one percent of the Receivables are
not covered by a Risk Default
Insurance Policy. Aegis Finance, in
accordance with its customary
procedures, has required that each
Obligor obtain, and has determined
that each Obligor has obtained,
physical damage insurance covering
the Financed Vehicle as of the date
of execution of the Receivable
insuring repair or replacement of
such Financed Vehicle subject to a
deductible not in excess of $500.
(xii) Title. It is the
intention of the Seller that the
transfer and assignment of the
Receivables from the Seller to the
Trust herein contemplated be treated
as an absolute sale for financial
accounting purposes, and that the
beneficial interest in and title to the
Receivables not be part of the
property of the Seller for any
purpose under state or federal law.
No Receivable has been sold,
transferred, assigned or pledged by
the Seller to any Person other than
the Trustee. Immediately prior to
the transfer and assignment herein
contemplated, the Seller had good
and marketable title to each
Receivable free and clear of all Liens
and rights of others and, immediately
upon the transfer thereof, the Trustee
for the benefit of the
Certificateholders will have good and
marketable title to each Receivable,
free and clear of all Liens and rights
of others; and the transfer has been
validly perfected under the UCC.
(xiii) Lawful Assignment.
No Receivable has been originated
in, or is subject to the laws of, any
jurisdiction under which the pledge,
transfer and assignment of such
Receivable under this Agreement or
pursuant to transfers of the
Certificates is or shall be unlawful,
void or voidable.
(xiv) All Filings Made. All
filings (including, without limitation,
UCC filings) necessary in any
jurisdiction to give the Trustee a first
perfected ownership interest in the
Receivables have been made.
(xv) One Original. There
is only one original executed copy of
each Receivable.
(xvi) Maturity of
Receivables. Each Receivable has
an original term to maturity of not
more than 60 months and, as of each
Cut-Off Date, each Receivable has a
remaining maturity of 60 months or
less.
(xvii) Monthly Payments.
Each Receivable provides for level
monthly payments (provided that the
payment in the first or last month in
the life of the Receivable may be
minimally different from such level
payment) which fully amortize the
amount financed over the original
term; provided, however, that the
Risk Default Policies provide that
loan extensions will be allowed,
subject to a total number of
extensions of no more than one
extension for each twelve (12) month
period or fraction thereof in the
Receivable's term.
(xviii) [Reserved]
(xix) Financing. Each
Receivable represents a Simple
Interest Receivable.
(xx) Bankruptcy
Proceeding. No Receivable as of the
respective Cutoff Date is noted in
Aegis Finance's or the Seller's
records as a discharged debt under a
bankruptcy proceeding.
(xxi) Chattel Paper, Valid
and Binding. Each Receivable
constitutes "chattel paper" under the
UCC, and is the legal, valid and
binding obligation of the Obligor
thereunder in accordance with the
terms thereof.
(xxii) [Reserved]
(xxiii) [Reserved]
(xxiv) No Future Advances.
The full principal amount of each
Receivable has been advanced to
each Obligor or advanced in
accordance with the directions of
each such Obligor, and there is no
requirement for future advances
thereunder. The Obligor with
respect to the Receivable does not
have any options under such
Receivable to borrow from any
person additional funds secured by
the Financed Vehicle. Each
Receivable as of the Closing Date
and each related Funding Date is
secured by the related Financed
Vehicle.
(xxv) Underwriting
Guidelines. Except for Uninsured
Receivables constituting no more
than one-fifth of 1% of the aggregate
initial Principal Balance, and
Nonconforming Insured Receivables
constituting no more than 1% of the
aggregate initial Principal Balance,
each Receivable has been originated
in accordance with the applicable
Underwriting Guidelines of Aegis
Finance in effect at the time of
origination and in accordance with
underwriting guidelines acceptable to
the Risk Default Insurer.
(xxvi) Financed Vehicle in
Good Repair. To the best of the
Seller's knowledge, each Financed
Vehicle is in good repair and
working order.
(xxvii) Principal Balance.
No Receivable has a Principal
Balance which includes capitalized
interest, physical damage insurance
or late charges. The maximum
principal balance of any Receivable
does not exceed $40,000, or such
lesser maximum principal balance as
is permitted under the Underwriting
Guidelines.
(xxviii) Servicing. At the
applicable Cutoff Date, each
Receivable was being serviced by the
Servicer.
(xxix) Eligible Loan. Each
Receivable covered by a Risk Default
Insurance Policy constitutes an
"Instrument" or "Insured Security
Agreement" and each Financed
Vehicle constitutes "Eligible
Collateral" as defined in and for
purposes of the Risk Default
Insurance Policy. Neither the
insured under the Risk Default
Insurance Policy nor any Person
acting on behalf of such insured has
concealed or misrepresented any
material facts or circumstances
regarding any matter that would
serve as a basis for the Risk Default
Insurer to void the Risk Default
Insurance Policy.
(xxx) Original Principal
Amount. The original principal
amount of each Receivable with
respect to which a credit application
was received by Aegis Finance prior
to January 15, 1997 and which was
(A) originated under the original
"Zero Down" and the "Reduced
Income" programs, was not more
than (1) in the case of new Financed
Vehicles, the lower of (x) 105% of
the manufacturer's suggested retail
price plus rebatable premiums on
cancelable items and (y) 120% of the
manufacturer's suggested retail price
or (2) in the case of used Financed
Vehicles, the lower of (x) 105% of
the retail value of the Financed
Vehicle at the time of origination of
the Receivable as set forth in the
▇▇▇▇▇▇ "Blue Book" for the
appropriate region plus rebatable
premiums on cancelable items and
(y) 120% of such ▇▇▇▇▇▇ "Blue
Book" retail value; (B) originated
under the "First Time Buyer"
program, was not more than (1) in
the case of new Financed Vehicles,
95% of the manufacturer's suggested
retail price plus rebatable premiums
on cancelable items of up to 15% of
the manufacturer's suggested retail
price or (2) in the case of used
Financed Vehicles, 95% of the retail
value of the Financed Vehicle at the
time of origination of the Receivable
as set forth in the ▇▇▇▇▇▇ "Blue
Book" for the appropriate region plus
rebatable premiums on cancelable
items of up 15% of the
manufacturer's suggested retail price
and (C) originated under the
"Military Program" was not more
than 105% of the manufacturer's
suggested retail price or, in the case
of used Financed Vehicles, 105% of
the ▇▇▇▇▇▇ "Blue Book" retail value.
Calculations made with respect to the
percentages referenced above are
rounded to the nearest whole
percentage point. The original
principal amount of each Receivable
with respect to which a credit
application was received by Aegis
Finance after January 15, 1997
which was (A) originated under the
original "Zero Down" program, was
not more than (1) in the case of new
Financed Vehicles (other than
Hyundai automobiles), 100% of the
manufacturer's suggested retail price
(not to exceed $20,000) plus taxes,
title and other fees and premiums for
approved service contracts or (2) in
the case of used Financed Vehicles
(other than Hyundai automobiles),
100% of the retail value of the
Financed Vehicle at the time of
origination of the Receivable as set
forth in the ▇▇▇▇▇▇ "Blue Book" for
the appropriate region (not to exceed
$20,000) plus taxes, title and other
fees and premiums for approved
service contracts; (B) originated
under the "Reduced Income"
program and with respect to all
Hyundai automobiles, was not more
than (1) in the case of new Financed
Vehicles, 85% of the manufacturer's
suggested retail price plus taxes,
title and other fees and premiums for
approved service contracts or (2) in
the case of used Financed Vehicles,
85% of the retail value of the
Financed Vehicle at the time of
origination of the Receivable as set
forth in the ▇▇▇▇▇▇ "Blue Book" for
the appropriate region plus taxes,
title and other fees and premiums for
approved service contracts; provided
that, in any such case, if any such
amount is higher than that approved
by the Risk Default Insurer, each
Receivable will be limited in amount
to that permitted by the Risk Default
Insurer for coverage under the Risk
Default Insurance Policy.
(xxxi) No Proceedings.
There are no proceedings or
investigations pending or, to the best
knowledge of the Seller, threatened
before any court, regulatory body,
administrative agency or other
governmental instrumentality having
jurisdiction over the Seller or its
respective properties: (A) asserting
the invalidity of any of the
Receivables; (B) seeking to prevent
the enforcement of any of the
Receivables; or (C) seeking any
determination or ruling that might
materially and adversely affect the
payment on or enforceability of any
Receivable.
(xxxii) Licensing. With
respect to each Receivable originated
in the State of Pennsylvania, the
Trust, the Seller, Aegis Finance and
each prior holder of any such
Receivable were each properly
licensed under applicable
Pennsylvania laws and regulations
during the respective times the Trust,
the Seller, Aegis Finance and each
prior holder of any such Receivable
held such Receivable, except where
the failure to be so licensed would
not have a material adverse effect on
the ability of the Trust to collect
principal or interest payments on
such Receivable or to realize upon
the Financed Vehicle underlying any
such Receivable in accordance with
the terms thereof.
(xxxiii) Additional
Receivables. Each Additional
Receivable shall have been identified
and approved by Aegis Finance on or
prior to the Closing Date, as
evidenced by Aegis Finance's dated
notation of approval on the loan
application (or other writing).
(b) The Seller makes the following
additional representations, warranties and
covenants on which the Trustee relies in
accepting the Receivables in trust on the
Closing Date and each Funding Date and
executing and authenticating the Certificates
on the Closing Date, which representations,
warranties and covenants shall survive the
Closing Date and each Funding Date.
(i) Location of Servicer Files. The Servicer
Files are kept at the location or locations listed in
Exhibit E hereto, with the exception of (A) the
original certificates of title or other documents
under applicable state laws evidencing the security
interest of Aegis Finance in the Financed Vehicles,
and (B) the original Receivables, which documents
shall be kept at an office of the Custodian.
(ii) Evidence of Security
Interest. On the Closing Date (in the
case of the Initial Receivables) and
the applicable Funding Date (in the
case of each Additional Receivable),
the Seller shall deliver or cause to be
delivered to the Custodian (A) an
original certificate of title or (B) if
the applicable state title registration
agency does not deliver certificates
of title to lienholders, such other
document under applicable state laws
evidencing the security interest of
Aegis Finance in the Financed
Vehicle, or (C) a guarantee of title
or a copy of an application for title if
no certificate of title or other
evidence of the security interest in
the Financed Vehicle has yet been
issued, for each Financed Vehicle
relating to each Receivable sold,
transferred, assigned and conveyed
hereunder; provided, however, that
any original certificate of title or
other document under applicable law
evidencing the security interest of
Aegis Finance in the Financed
Vehicle not so delivered on the
Closing Date or Funding Date, as the
case may be, due to the fact that
such certificate of title or other
document has not yet been issued by
a state title registration agency and
delivered to the Seller as of such
date, shall be delivered by the Seller
to the Custodian within one hundred
twenty (120) days after the Closing
Date or the applicable Funding Date,
as the case may be, or such later
date permitted in accordance with
Section 3.03(a); provided, further,
that failure to so deliver any original
certificate of title or other document
evidencing the security interest of
Aegis Finance in the Financed
Vehicle to the Trustee shall be
deemed to be a breach by the Seller
of its representations and warranties
contained in this Section 3.01, and
such occurrence shall constitute a
breach pursuant to Section 3.02.
Section 3.02. Repurchase or
Substitution Upon Breach.
(a) The Seller, the Backup
Servicer or the Trustee, as the case may be,
shall inform the other parties to this
Agreement and each Certificateholder
promptly, in writing, upon its discovery of
(i) any breach of the Seller's representations
and warranties made pursuant to Section
3.01(a), or of Aegis Finance's
representations and warranties made
pursuant to Section 3.01(b) of the Purchase
Agreement, or (ii) the failure of the Seller to
deliver original certificates of title or other
documents evidencing the security interest of
Aegis Finance in the Financed Vehicle
pursuant to Section 3.01(b) and 3.03.
Neither the Backup Servicer nor the Trustee
has any duty to investigate or determine the
existence of any breach or non-delivery
except as specified herein. Unless (i) the
breach shall have been cured by the thirtieth
day following the discovery thereof by the
Trustee or receipt by the Trustee of notice
from the Seller, the Servicer or the Backup
Servicer of such breach, or (ii) the non-
delivery shall have been cured by the
seventh Business Day following receipt by
an officer of the Seller of notice from the
Trustee by certified mail, the Seller shall
repurchase each Receivable (x) to which
such breach relates by the fifth Business
Day following such 30 day cure period or
(y) relating to the non-delivery by the fifth
Business Day following such seven day cure
period. Concurrently therewith, the Seller
shall cause Aegis Finance to repurchase such
Receivable pursuant to the Purchase
Agreement for the Purchase Amount. In
consideration of the purchase of the
Receivable, the Seller shall remit or cause
Aegis Finance to remit the Purchase Amount
to the Trustee for application in the manner
specified in Section 5.05. For purposes of
this Section 3.02, the Purchase Amount of a
Receivable which is not consistent with the
warranty pursuant to Section 3.01(a)(i)(E)
shall include such additional amount as shall
be necessary to provide the full amount of
principal and interest as contemplated
therein.
(b) The foregoing
notwithstanding, the Seller shall also have
the option of substituting, within the five
Business Day period following the
applicable cure period, one or more
replacement Receivables conforming to the
requirements hereof (a "Substitute
Receivable") for any breach or failing
Receivable instead of repurchasing such
Receivable, provided any such substitution
occurs within ninety (90) days of the
Closing Date. It shall be a condition of any
such substitution that (i) the outstanding
Principal Balance of the Substitute
Receivables as of the date of substitution
shall be less than or equal to the outstanding
Principal Balance of the replaced Receivable
as of the date of substitution; provided that
an amount equal to the difference, if any,
between the outstanding Principal Balance of
the replaced Receivable and the outstanding
Principal Balance of the Substitute
Receivable shall be deposited into the
Collection Account and shall be applied to
repay the outstanding Principal Balance of
the Certificates on the next Distribution
Date; (ii) the remaining term to maturity of
the Substitute Receivable shall not be greater
than that of the replaced Receivable; (iii) the
APR on the Substitute Receivable is not less
than the APR on the replaced Receivable;
(iv) the Cutoff Date with respect to the
Substitute Receivable shall be deemed to be
the first day of the month in which the
substitution occurs; (v) the Substitute
Receivable otherwise shall satisfy the
conditions of Section 3.01(a) and (b) hereof
(and the Seller shall be deemed to make all
representations and warranties contained in
Sections 3.01(a) and (b) hereof with respect
to the Substitute Receivable as of the date of
substitution); and (vi) the Seller shall have
delivered to the Purchaser and the Trustee
all of the documents specified in Section
3.03(a) or 3.08(b) hereof with respect to the
Substitute Receivable on or before the date
of substitution.
(c) The sole remedy of the
Trustee, the Trust or the Certificateholders
with respect to a breach of representations
and warranties of the Seller pursuant to
Section 3.01(a), or a breach of
representations and warranties of Aegis
Finance pursuant to Section 3.01(b) of the
Purchase Agreement, or non-delivery of
certificates of title pursuant to Section
3.01(b) and 3.03, shall be to require the
Seller to repurchase or substitute for the
Receivables pursuant to this Section 3.02
and to enforce Aegis Finance's obligation to
repurchase such Receivables pursuant to the
Purchase Agreement.
Section 3.03. Custody of Documents.
(a) To assure uniform quality in
servicing the Receivables, to reduce
administrative costs and to perfect the
security interest conveyed by the Seller to
the Trustee and the Trust pursuant to this
Agreement in the Trust Property, the
Trustee, upon the execution and delivery of
this Agreement, is hereby irrevocably
appointed as Custodian of the following
documents or instruments, which shall be
delivered to the Custodian with respect to
each Receivable within 10 days after the
Closing Date or applicable Funding Date:
(i) The original of the
Receivable and any amendments
thereto;
(ii) The original certificate
of title or, if the applicable state title
registration agency does not issue
certificates of title to lienholders,
such other document under
applicable state laws evidencing the
security interest of Aegis Finance in
the Financed Vehicle, or a guarantee
of title or a copy of an application
for title if a certificate of title or
other document evidencing the
security interest in the Financed
Vehicle has not yet been issued; and
(iii) Such other documents
as may be in existence evidencing the
security interest of Aegis Finance in
the Financed Vehicle; provided,
however, that the Trustee has no
obligation to determine the existence
or necessity for such other
documents.
Items (a)(i), (ii) and (iii) shall be
referred to collectively as the "Custodian
Files."
The Custodian shall review the
Custodian Files (A) within 30 days after the
Closing Date (or 30 days after the end of
the Funding Period, if applicable) to verify
that all guarantees of title and all
applications for title have been replaced by
either an original certificate of title or other
documents delivered by a state title
registration agency evidencing the security
interest of Aegis Finance in the Financed
Vehicle, and (B) within 30 days after the
Closing Date and each Funding Date,
whichever is applicable with respect to each
Receivable, to verify that an original
installment sale contract is present for each
Receivable and that each Receivable is
covered by an endorsement to the Risk
Default Policy confirming insurance
thereunder. The Custodian shall
immediately deliver written notice by
certified mail to the Seller and Aegis
Finance if any such document is missing or
has not been delivered to the Custodian.
With respect to Receivables for which the
original certificates of title or other
documents evidencing the security interest of
Aegis Finance in the Financed Vehicle have
not been delivered within 30 days after the
Closing Date (or within 30 days after the
end of the Funding Period if applicable), the
Custodian shall review the related Custodian
Files every thirty days thereafter to
determine whether or not such documents
have been delivered, and shall promptly
notify the Seller in writing, on a monthly
basis, of any such documents which have
not been delivered as of the date of such
notice. The Custodian shall deliver written
notice to the Certificateholders if any
original certificate of title or other document
evidencing the security interest of Aegis
Finance in the Finance Vehicle has not been
delivered to the Custodian within 120 days
after the Closing Date (or within 120 days
after the end of the Funding Period if
applicable). Such notice shall confirm
whether or not a guaranty of title or an
application for title has been delivered to the
Custodian with respect to the related
Receivable.
With respect to Receivables for
which the original retail installment sale
contract has not been delivered to the
Custodian in accordance with this Section
3.03(a), the Seller shall cause Aegis Finance
to deliver the missing documents within
seven (7) Business Days of receipt of such
notice or repurchase such Receivables
pursuant to Section 3.02 hereof. With
respect to Receivables for which original
certificates of title or other documents
evidencing the security interest of Aegis
Finance in the Financed of the Vehicle have
not been delivered to the Custodian within
120 days after the Closing Date (or within
120 after the Funding Period if applicable),
the Seller shall cause Aegis Finance to
deliver such within 120 days thereafter (i.e.,
within 240 days after the Closing Date or
the end of the Funding Period, as
applicable) or repurchase the Receivables
pursuant to Section 3.02 hereof. Other than
the reviews set forth in this paragraph, the
Custodian shall have no duty or obligation
to review any of the Custodian Files.
(b) The Seller shall deliver to the
Servicer for custody pursuant to the
Servicing Agreement the documents and
instruments described in Paragraph III.B.3.
of the Servicing Agreement (collectively, the
"Servicer Files").
(c) The Custodian agrees to
maintain the Custodian Files at the offices of
the Custodian as shall from time to time be
identified to the Trustee by written notice.
Subject to the foregoing, the Trustee may
temporarily move individual Custodian Files
or any portion thereof without notice as
necessary to conduct collection and other
servicing activities in accordance with its
customary practices and procedures.
The Custodian shall have and
perform the following powers and duties:
(i) hold the Custodian
Files for the benefit of all present
and future Certificateholders,
maintain accurate records pertaining
to each Receivable to enable it to
comply with the terms and conditions
of this Agreement and maintain a
current inventory thereof;
(ii) carry out such policies
and procedures in accordance with its
customary actions with respect to the
handling and custody of the
Custodian Files so that the integrity
and physical possession of the
Custodian Files will be maintained;
and
(iii) promptly release the
original certificate of title to the
Servicer upon receipt of a written
request for release of documents
certified by an officer of the
Servicer, substantially in the form of
Schedule C to the Servicing
Agreement, with respect to the
matters therein.
Section 3.04. Duties of Custodian.
(a) Safekeeping. The Trustee, as
Custodian, shall hold the original
Receivables and original certificates of title
at the Corporate Trust Office, for the use
and benefit of all present and future
Certificateholders. In performing its duties
the Custodian will comply with all
applicable state and federal laws and will
exercise that degree of skill and care
consistent with the same degree of skill and
care that the Custodian exercises with
respect to similar motor vehicle loans held
by the Custodian and that is consistent with
prudent industry standards, and will apply in
performing such duties and obligations,
those standards, policies and procedures
consistent with the same standards, policies
and procedures the Custodian applies with
respect to similar motor vehicle loans or
motor vehicle retail installment sale
contracts which the Custodian serves as
custodian or in a similar capacity.
(b) Maintenance of and Access to
Records. Subject to Section 3.03(c), the
Custodian shall maintain the Custodian Files
at the Corporate Trust Office or at such
other office as shall be specified to the
Trustee by written notice not later than 90
days after any change in location. The
Custodian shall make available to the
Servicer and the Certificateholders or their
duly authorized representatives, attorneys or
auditors a list of locations of the Custodian
Files, and the related accounts, records and
computer systems maintained by Custodian
at such times as the Servicer or the Majority
Certificateholders shall instruct.
(c) Release of Documents. In
addition to releasing certificates of title
pursuant to Section 3.03(c)(iii) upon receipt
of written instructions from the Servicer in
the form of Schedule C to the Servicing
Agreement, the Custodian shall release any
Custodian File to the Servicer, the
Servicer's agent or the Servicer's designee,
as the case may be, at such place or places
as the Servicer may designate, as soon as
practicable.
Section 3.05. Instructions; Authority to
Act. The Custodian shall be deemed to have
received proper instructions with respect to the
Custodian Files upon its receipt of written
instructions from the Servicer in the form of
Schedule C to the Servicing Agreement.
Section 3.06. Custodian Fees;
Indemnification.
(a) In consideration for services
rendered as Custodian, the Custodian shall
be paid the Custodian Fees.
(b) The Seller shall indemnify the
Custodian for any and all liabilities,
obligations, losses, compensatory damages,
payments, costs or expenses of any kind
whatsoever, including reasonable fees and
expenses of counsel, that may be imposed
on, incurred or asserted against the
Custodian as the result of any improper act
or omission by the Seller or alleged
improper act or omission by the Seller in
any way relating to the maintenance and
custody by the Custodian of the Custodian
Files; provided, however, that the Seller
shall not be liable for any portion of any
such amount resulting from the willful
misfeasance, bad faith or negligence of the
Custodian.
Section 3.07. Effective Period and
Termination. The Trustee's appointment as
Custodian shall become effective as of the Closing
Date and shall continue in full force and effect until
the Trustee resigns or is removed pursuant to
Section 11.09. As soon as practicable after any
termination of such appointment, the Custodian
shall deliver the original documents identified in
Section 3.03 to the successor Custodian at such
place or places as the successor Custodian may
reasonably designate.
Section 3.08. Funding Events.
(a) A funding event (each a
"Funding Event") shall occur upon a
Funding Date and in accordance with the
requirements of this Section 3.08.
(b) During the Funding Period,
the Seller shall, on Funding Dates, acquire
Additional Receivables at the Receivables
Cash Purchase Price from Aegis Finance
pursuant to the Purchase Agreement with
moneys deposited in the Funding Account
on the Closing Date.
The Seller shall transfer to the
Trustee the Additional Receivables and the
other property and rights related thereto
described in Section 2.01(b) only upon
satisfaction of each of the following
conditions on or prior to the related Funding
Date:
(i) On or before the
related Cutoff Date immediately
preceding any Funding Date for the
Additional Receivables, the Seller
will review, package and forward to
the Trustee for receipt by not less
than two Business Days prior to the
Funding Date (each, a "Delivery
Date"), the following documents
related to such Additional
Receivables:
(A) Original retail
installment
sales contracts
evidencing
such
Receivables
and any
amendments
thereto;
(B) Original
certificates of
title, or copies
of dealer
blanket
guarantees of
title, or
applications
for title to the
related
Financed
Vehicles;
(C) With respect
to Receivables
covered by a
Risk Default
Insurance
Policy, an
endorsement
to the Risk
Default
Insurance
Policy
confirming
insurance
regarding each
Receivable to
be purchased
on such
Funding Date
(as specified
on a master
list of
Receivables
annexed to
such
endorsement);
(D) A list of
Receivables
being
purchased on
such Funding
Date in
electronic
format
satisfactory to
the Trustee;
and
(E) A notice that
the Funding
Date will
occur on the
Friday
immediately
following the
Delivery Date
(or such other
day as
specified in
such notice).
(ii) By the Delivery Date,
the Seller shall deliver, or cause to
be delivered, to the Trustee (with a
copy to Seller's counsel), fully
executed documents as follows:
(A) Assignment
(in the form of
Exhibit A to
the Purchase
Agreement)
with Schedule
A attached
listing all
Receivables to
be sold on
such Funding
Date;
(B) Assignment
(in the form of
Exhibit P
hereto) with
Schedule A
attached listing
all Receivables
to be sold on
such Funding
Date;
(C) Notice of
funding (in the
form of
Exhibit N
hereto)(the
"Notice of
Funding");
(D) Officer's
Certificate (in
the form of
Exhibit O
hereto); and
(E) Power of
Attorney by
the Seller in
favor of the
Trust
reflecting the
Additional
Receivables.
(iii) On the Delivery Date,
the Trustee will acknowledge receipt
of a written certification of the Seller
of the presence of the documents
listed in Sections 3.08(b)(i) and (ii)
above by sending notice, via
telecopy, to Seller and Seller's
counsel. The Trustee shall not be
responsible for the accuracy of such
documents. Only those Receivables
for which the documents listed in
Sections 3.08(b)(i) and (ii) are
delivered to the Trustee on the
Delivery Date will be included in the
Funding Event. Within 30 days of
the Funding Event, the Trustee will
also stamp the Receivables to
indicate their sale to the Seller and
their subsequent transfer and
assignment to the Trust.
(iv) Upon satisfaction of
the above requirements with respect
to events to occur on or before the
Funding Date, the Trustee will on
the Funding Date withdraw funds
from the Funding Account to pay to
the Seller or its designee with respect
to Additional Receivables acquired
on such Funding Date, in cash by
federal wire transfer funds, an
amount equal to the Receivables
Cash Purchase Price, all pursuant to
the written directions provided to the
Trustee in the Notice of Funding.
(v) The Trustee shall
review the documents delivered to it
in connection with any Funding
Event within 20 Business Days after
the initial Funding Date and within 5
Business Days after each subsequent
Funding Date (or within such greater
number of Business Days required to
review such documents at a rate of
1500 files per Business Day) to
verify the presence of the documents
listed in Sections 3.08(b)(i) and
3.08(b)(ii) for each Additional
Receivable. The Trustee shall
immediately deliver written notice by
certified mail to the Seller, Aegis
Finance and each Certificateholder,
if any of such documents is missing.
The Seller shall cause Aegis Finance
to deliver to the Trustee the missing
items within 3 Business Days of
receipt of such notice.
(c) If the Seller does not provide
written notice to the Trustee of its intent to
acquire Additional Receivables pursuant to
this Section 3.08 prior to the end of the
Funding Period, then the remaining balance
on deposit in the Funding Account after the
end of the Funding Period (excluding
earnings on investments or reinvestments
thereof) shall be used for the purpose of
partially prepaying the Certificates in
accordance with Section 5.06(d) hereof.
The Trustee shall provide notice to the
Certificateholders of any such partial
prepayment, which prepayment shall be
made on the Distribution Date immediately
following the end of the Funding Period.
(d) The Seller shall take any
action required to maintain the first
perfected ownership interest of the Trust in
the Trust Property and the first perfected
security interest of the Trustee in the
Reserve Fund Property.
ARTICLE IV
ADMINISTRATION AND SERVICING OF
RECEIVABLES
Section 4.01. Servicing Duties.
(a) On or before the Closing
Date, the Backup Servicer and the Trustee
will enter into the Aegis Finance Servicing
Agreement with Aegis Finance pursuant to
which Aegis Finance shall act as Servicer
with respect to the Receivables. Any
Servicer shall be, and shall remain, for so
long as it is acting as Servicer, an Eligible
Servicer. The Backup Servicer shall review
each Monthly Servicing Certificate required
to be provided by the Servicer pursuant to
paragraph III.B.6 of the Servicing
Agreement and shall notify the Trustee and
each Certificateholder of any discrepancy in
such Monthly Servicing Certificate which
cannot be corrected in accordance with
paragraph III.B.6 of the Servicing
Agreement.
(b) In the event of termination of
the rights and obligations of the Servicer
under the Servicing Agreement, the Backup
Servicer shall, in accordance with paragraph
VI of the Servicing Agreement, act as
Servicer of the Receivables by assuming
such rights and obligations under the
Servicing Agreement unless a successor
Servicer, other than the Backup Servicer, is
appointed by the Trustee under the Servicing
Agreement; provided, however, that the
Backup Servicer shall not be liable for any
acts, omissions or obligations of the Servicer
prior to such succession or for any breach
by the Servicer of any of its representations
and warranties contained in the Servicing
Agreement or in any related document or
agreement.
(c) Any Servicing Agreement that
may be entered into and any other
transactions or servicing arrangements
relating to the Receivables and the other
Trust Property involving a Servicer in its
capacity as such shall be deemed to be for
the benefit of the Trust, the Trustee and the
Certificateholders.
(d) Other than the duties
specifically set forth in this Agreement and
the Servicing Agreement, the Backup
Servicer shall have no obligation hereunder,
including, without limitation, to supervise,
verify, monitor or administer the
performance of the Servicer. The Backup
Servicer shall have no liability for any
actions taken or omitted by the Servicer.
The duties and obligations of the Backup
Servicer shall be determined solely by the
express provisions of this Agreement and the
Servicing Agreement and no implied
covenants or obligations shall be read into
this Agreement against the Backup Servicer.
Section 4.02. Resignation of Backup
Servicer. The Backup Servicer may resign from the
obligations and duties imposed on it under this
Agreement and the Servicing Agreement as Backup
Servicer, and shall resign at any time when it ceases
to be an Eligible Servicer, by giving written notice
of such resignation to the Trustee and the
Certificateholders. No such resignation shall
become effective until a successor Backup Servicer
that is an Eligible Servicer acceptable to the
Majority Certificateholders shall have assumed the
responsibilities and obligations of the Backup
Servicer in accordance with Section 10.02; provided
however, if a successor Backup Servicer has not
assumed the responsibilities and obligations of the
Backup Servicer within 30 days after such
resignation, the Backup Servicer may petition a
court of competent jurisdiction for its removal.
In the event the Backup Servicer shall for
any reason no longer be acting as such (including
by reason of resignation as set forth in this Section
4.02 or an Event of Backup Servicing Default as
specified in Section 10.01), the successor Backup
Servicer shall thereupon assume all of the rights and
obligations of the outgoing Backup Servicer under
the Servicing Agreement. In such event, the
successor Backup Servicer shall be deemed to have
assumed all of the Backup Servicer's interest therein
and to have replaced the outgoing Backup Servicer
as a party to the Servicing Agreement to the same
extent as if the Servicing Agreement had been
assigned to the successor Backup Servicer, except
that the outgoing Backup Servicer shall not thereby
be relieved of any liability or obligations on the part
of the outgoing Backup Servicer to the Servicer
under such Servicing Agreement to the extent such
obligations or liabilities arose prior to the
assumption by the successor Backup Servicer of the
obligations of the Backup Servicer thereunder. The
outgoing Backup Servicer shall, upon request of the
Trustee, deliver to the successor Backup Servicer
all documents and records relating to the Servicing
Agreement and the Receivables and otherwise use
its reasonable efforts to effect the orderly and
efficient transfer of the Servicing Agreement to the
successor Backup Servicer.
Section 4.03. Covenant of Backup
Servicer. The Backup Servicer shall promptly
notify the Trustee of the occurrence of any Event of
Backup Servicing Default or Event of Servicing
Default of which it has obtained actual knowledge
and any breach by the Backup Servicer or the Seller
of any of its respective covenants or representations
and warranties contained in this Agreement.
Section 4.04. Servicing Fees. The total
servicing fees payable on each Distribution Date to
the Backup Servicer and the Servicer, subject to
accrual and deferral of a portion of the Servicing
Fee in accordance with the Servicing Agreement,
shall equal the Backup Servicer Fee and the
Servicing Fee, respectively. Any proposed increase
in the Backup Servicer Fee or the Servicing Fee due
to the assumption of duties hereunder or under the
Servicing Agreement by a successor Backup
Servicer or successor Servicer shall be approved by
the Seller and the Majority Certificateholders. The
Backup Servicer shall also be entitled to any
reimbursement pursuant to Section 9.03. Any
Servicing Fee payable to the Servicer hereunder or
pursuant to the Servicing Agreement shall be paid
to the Servicer and/or to one or more subservicers
as the servicer may from time to time direct in
writing to the Trustee.
Section 4.05. Costs and Expenses. All
reasonable out-of-pocket costs and expenses
incurred by the Backup Servicer in carrying out its
duties as Backup Servicer hereunder, including all
out-of-pocket fees and expenses not expressly stated
hereunder to be for the account of the Trust or the
Seller, shall be paid or caused to be paid by the
Backup Servicer, and the Backup Servicer shall be
entitled to reimbursement therefor hereunder.
Nothing in this Section 4.05 shall be construed to
limit the compensation to be paid to or retained by
the Backup Servicer pursuant to Section 4.04.
Section 4.06. Standard of Care. In
managing, administering, servicing and making
collections on the Receivables, and in performing
its obligations under the Servicing Agreement after
succeeding as Servicer thereunder, the Backup
Servicer will exercise that degree of skill and care
consistent with the same degree of skill and care
that the Backup Servicer exercises with respect to
similar motor vehicle loans owned and/or serviced
by the Backup Servicer and that is consistent with
prudent industry standards, and will apply in the
management, administration, servicing and
collection of the Receivables and in the
administration and enforcement of the Insurance
Policies relating to the Receivables, those standards,
policies and procedures consistent with the best
standards, policies and procedures the Backup
Servicer applies with respect to similar motor
vehicle loans owned or serviced by it, and, to the
extent not inconsistent with the foregoing, to
exercise that degree of skill and care it uses in
servicing assets held for its own account; provided,
however, that notwithstanding the foregoing, the
Backup Servicer shall not, except pursuant to a
judicial order from a court of competent
jurisdiction, or as otherwise required by applicable
law or regulation, release or waive the right to
collect the unpaid balance on any Receivable and
provided, further, that the Backup Servicer shall not
amend or modify any Receivable, unless a default
with respect to such Receivable has occurred or is,
in the judgment of the Backup Servicer, imminent.
In performing its duties and obligations hereunder
or under the Servicing Agreement, in the event
there is no Servicer managing, administering,
servicing or making collections on the Receivables
and administering and enforcing the Insurance
Policies relating to the Receivables, the Backup
Servicer shall comply with all applicable federal and
state laws and regulations, shall maintain all state
and federal licenses and franchises necessary for it
to perform its servicing responsibilities hereunder
and thereunder, and in such event it shall exercise
the same degree of skill and care it uses in
managing, administering, servicing and making
collection on the Receivables and administering and
enforcing the Insurance Policies in its capacity as
Backup Servicer hereunder, and shall not impair the
rights of the Trust or the Certificateholders in the
Trust Property.
ARTICLE V
DISTRIBUTIONS; ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Accounts.
(a) The Trustee shall establish
and maintain separately with respect to each
Trust the Collection Account, the Funding
Account, if any, and the Certificate Account
in the name of the Trustee for the benefit of
the Certificateholders. The Collection
Account, the Funding Account and the
Certificate Account shall be segregated trust
accounts established with the trust
department of the Trustee. The Servicer
shall establish the Lock-Box Account
pursuant to the Servicing Agreement. The
Lock-Box Account shall be a non-interest
bearing account established with a Lock-Box
Account Depository, which shall at all times
be an Eligible Institution, by the Servicer
for the sole benefit of the Trust and other
holders of retail installment sales contracts
originated by Aegis Finance or its Affiliates.
All of the foregoing Accounts shall be
Eligible Accounts.
(b) Amounts held in the
Collection Account, the Certificate Account
and the Funding Account shall be invested
by the Trustee, upon the written direction of
the Seller, in Eligible Investments. Any
such investment in the Certificate Account
or the Funding Account shall mature no
later than (i) one Business Day before the
Distribution Date (or Funding Date with
respect to the Funding Account), next
succeeding the date of investment or, (ii) in
the case of money market fund investments,
on such Distribution Date. Any such
investment in the Collection Account shall
mature not later than two Business Days
before such Distribution Date. Any written
investment direction by the Seller shall
certify that any such investment is
authorized by this Section 5.01. The
Trustee shall have no authority to sell or
otherwise dispose of Eligible Investments
attributable to funds held in the Certificate
Account, the Collection Account or the
Funding Account prior to their respective
maturity dates. Interest and earnings on
investments of funds in any Account shall be
credited to and all losses borne by the
Account with respect to which they were
derived. All accounts with the Trustee must
be trust accounts subject to regulations
substantially similar to 12 C.F.R. 9.10(b).
The Trustee shall not have any responsibility
or liability for any investment of moneys at
the direction of the Seller or any loss
resulting therefrom.
(c) The Servicer has appointed
each of ▇▇▇▇▇ Fargo Bank, N.A., and
Commerce Bank, as an initial Lock-Box
Account Depository under the Servicing
Agreement. All funds of the Trust held by
a Lock-Box Account Depository are and
shall remain the property of the Trust.
Section 5.02. Collections. Pursuant to the
Servicing Agreement, the Servicer shall remit to the
Lock-Box Account as soon as practicable, but in no
event later than its close of business on the Business
Day after receipt thereof by the Servicer, all
payments by or on behalf of the Obligors with
respect to each Receivable (other than Purchased
Receivables), all Recoveries and all Risk Default
Insurance Proceeds, all as collected during the
Collection Period. As provided in the Servicing
Agreement, the Servicer shall cause the Lock-Box
Account Depository to transfer all available funds
applied to the Receivables in excess of $2,000 from
the Lock-Box Account to the Collection Account on
each Business Day. In the event an Obligor remits
funds to the Trustee rather than remitting such
funds directly to the Servicer, the Trustee shall
notify the Servicer and shall deposit such amounts
into the Collection Account within one (1) Business
Day after receipt. Deposits into the Lock-Box
Account allocable to collections on Receivables of
each Trust shall be identified and earmarked
separately from the collections with respect to each
other Trust (the "Earmarked Funds"). The
Earmarked Funds shall be transferred to the
Collection Account of the related Trust.
Section 5.03. Application of Collections.
All collections for the Collection Period shall be
applied by the Trustee in accordance with reports
provided to the Trustee by the Servicer pursuant to
the Servicing Agreement, as follows:
With respect to each Receivable (other than
a Purchased Receivable), payments by or on behalf
of the Obligor shall be applied to the Scheduled
Payment. Any excess payments received
constituting Scheduled Payments for subsequent
Collection Periods shall be applied to the Principal
Balance of the Receivables on the Distribution Date
relating to such subsequent Collection Period.
Section 5.04. Miscellaneous Servicer
Collections. All Miscellaneous Servicer Collections
shall be deposited by the Servicer to the Lock-Box
Account within one Business Day of receipt thereof.
Section 5.05. Additional Deposits. (a) The
Trustee shall deposit or cause to be deposited in the
Collection Account the aggregate Purchase Amount
received with respect to Purchased Receivables and
shall, upon receipt, deposit such other amounts to
such accounts as may be specified herein. All such
deposits shall be made in Automated Clearinghouse
Corporation next-day funds or immediately
available funds, on or before the Business Day
preceding the Distribution Date.
(b) On the Closing Date and each Funding
Date, the Seller shall deliver to the Trustee and the
Trustee shall deposit into the Collection Account
any amount transferred from the "Depository
Account" established under the Warehouse Facility
which constitutes collections received with respect
to the Receivables to be purchased by the Seller and
sold to the Trust on such date, net of amounts paid
under the Warehouse Facility with respect to
principal and interest on the related loans under the
Warehouse Facility ("Excess Interest Collections").
Section 5.06. Distributions.
(a) On each Distribution Date,
the Trustee shall cause to be made the
transfers and distributions set forth in this
Section 5.06 in the amounts set forth in the
Monthly Servicing Certificate for such
Distribution Date.
(b) The Trustee shall, on each
Determination Date, based upon a certificate
delivered to the Trustee from the Backup
Servicer, calculate the Total Available
Distribution Amount, the Class A
Distributable Amount and the Class B
Distributable Amount, and, based on the
Total Available Distribution Amount,
determine the amount distributable to the
Certificateholders and the other distributions
to be made on such Distribution Date.
(c) Two (2) Business Days prior
to each Distribution Date, the Trustee shall
transfer from the Collection Account to the
Certificate Account an amount equal to the
Total Available Distribution Amount and all
investment earnings and interest on the
funds in the Collection Account.
(d) The rights of the Class B
Certificateholders to receive distributions in
respect of the Class B Certificates shall be
and hereby are subordinated to the rights of
the Class A Certificateholders to receive
distributions in respect of the Class A
Certificates to the extent provided in this
Section. Except as otherwise provided
below, on each Distribution Date, the
Trustee (based on the information contained
in the Monthly Servicing Certificate
delivered on the related Determination Date
pursuant to the Servicing Agreement) shall
make the following distributions from the
funds then on deposit in the Certificate
Account (including funds transferred from
the Reserve Fund when necessary pursuant
to the Master Trust Agreement and Section
5.07 below) in the following order of
priority:
(i) to the Backup Servicer, the Backup Servicer
Fee and expenses and all unpaid Backup Servicer
Fees and unreimbursed expenses from prior
Collection Periods; to the Servicer, the Servicing
Fees, to the extent then payable in cash and not
accrued and deferred in accordance with the
Servicing Agreement, and servicing expenses, and
all such unpaid Servicing Fees and unreimbursed
expenses from prior Collection Periods; to the
Trustee and Custodian, the Trustee Fees and
expenses and Custodian Fees and expenses
(including but not limited to the expenses associated
with maintaining a credit rating, if any, assigned by
a Rating Agency and obtaining an audit, procedures
review or other accountants' report on the reports,
accounts or statements prepared by the Servicer or
the Trustee) and all unpaid Trustee Fees and
unreimbursed expenses and Custodian Fees and
unreimbursed expenses from prior Collection
Periods; and to the successor to the Servicer, the
Trustee or the Backup Servicer, Transition Costs, if
any;
(ii)
to the Class A Certificateholders of record,
an amount equal to the sum of the Class A Interest
Distributable Amount and any Class A Interest
Carryover Shortfall from the prior Distribution
Date;
(iii) to the Class A
Certificateholders of record, an
amount equal to the sum of the Class
A Principal Distributable Amount
and any Class A Principal Carryover
Shortfall from the prior Distribution
Date;
(iv) to the Class B
Certificateholders of record, an
amount equal to the sum of the Class
B Interest Distributable Amount and
any Class B Interest Carryover
Shortfall from the prior Distribution
Date; and
(v) to the Class B
Certificateholders of record, an
amount equal to the sum of the Class
B Principal Distributable Amount
and any Class B Principal Carryover
Shortfall from the prior Distribution
Date.
(e) On each Distribution Date,
the Trustee shall distribute any Excess
Receipts into the Reserve Fund, provided
that, if on such Distribution Date, amounts
may be released from the Reserve Fund
under the terms of Section 3.6 of the Master
Trust Agreement, then such Excess Receipts
shall be distributed directly to the Seller or
its assignee as holder of the Excess
Receipts.
(f) All distributions with respect
to each Class of Certificates on each
Distribution Date shall be made pro rata
among the outstanding Certificates of such
Class, in proportion to the Percentage
Interests evidenced thereby. All payments
to Certificateholders shall be made on each
Distribution Date to each Certificateholder
of record on the related Record Date by
check, or, if requested by a
Certificateholder holding Certificates with
Original Certificate Balances in the
aggregate in excess of $1,000,000, by wire
transfer to the account designated in writing
by such Holder in the form of Exhibit G
hereto (or such other account as such
Certificateholder may designate in writing)
delivered to the Trustee prior to the
Determination Date, in immediately
available funds.
Section 5.07. Reserve Fund.
(a) If on any Distribution Date
amounts in the Collection Account are
insufficient to make the distributions
specified in Section 5.06(d), the Trustee
shall draw upon the Reserve Fund to make
up such insufficiency in accordance with the
Master Trust Agreement.
(b) On the Closing Date, the Seller
shall deposit into the Reserve Fund an
amount equal to (i) the Reserve Fund Initial
Deposit and (ii) such other amounts as may
be specified in the Agreement.
Section 5.08. Funding Account.
(a) The Trustee shall establish the
Funding Account, if any, for the benefit of
the Certificateholders. On the Closing Date,
the Trustee shall deposit into the Funding
Account the Original Pre-Funded Amount.
(b) The Trustee shall use funds
on deposit in the Funding Account on a
Funding Date to acquire Additional
Receivables on behalf of the Trust.
(c) Two Business Days prior to
the Distribution Date immediately following
the end of the Funding Period, the Trustee
shall first transfer all amounts received as
earnings on income from any investments or
reinvestments of funds in the Funding
Account to the Collection Account and,
second, shall transfer all remaining funds in
the Funding Account to the Certificate
Account for the purpose of prepaying the
Certificates on such Distribution Date.
Section 5.09. Statements to
Certificateholders; Tax Returns. With each
distribution from the Certificate Account to the
Certificateholders made on a Distribution Date, the
Trustee shall provide to the Backup Servicer, the
Seller and each Certificateholder of record, based
on the Monthly Servicing Certificate provided to the
Backup Servicer and the Trustee by the Servicer in
the form of Schedule B to the Servicing Agreement,
a statement substantially in the form of Exhibit C to
this Agreement setting forth at least the following
information with respect to such Distribution Date
and the related Collection Period, to the extent
applicable:
(a) Servicer Collections:
(i) The Available Interest Distribution Amount;
(ii) The Available
Principal Distribution Amount;
(iii) The Miscellaneous
Servicer Collections; and
(iv) The Total Available
Distribution Amount.
(b) Distributions:
(i) the amount of such distribution allocable to
principal in respect of each Class of Certificates;
(ii) the amount of such
distribution allocable to interest in
respect of each Class of Certificates;
(iii) the amount of the
Backup Servicing Fee, Servicing
Fee, Trustee and Custodian Fees and
expenses for the related Collection
Period and the portion of such fees
allocable to each Class of
Certificates;
(iv) the amount of Class
Interest Carryover Shortfalls, if any,
on such Distribution Date in respect
of each Class of Certificates and the
amount of the Class Principal
Carryover Shortfalls, if any, on such
Distribution Date in respect of each
Class of Certificates;
(v) the Pool Factor and
the Class Factor for each Class of
Certificates as of such Distribution
Date, after giving effect to payments
allocated to principal reported under
clause (i) above;
(vi) the amount on deposit
in the Reserve Fund on such
Distribution Date, after giving effect
to amounts deposited in the Reserve
Fund and Reserve Fund Draws on
such date;
(vii) the aggregate amount
of Reserve Fund Draws, and the
breakdown of the application of such
draws to cover payment shortfalls to
Class A or B Certificateholders,
made on such Distribution Date;
(viii) the amount of net
investment earnings with respect to
the Reserve Fund earned during the
related Collection Period; and
(ix) the amounts, if any,
released from the Reserve Fund to
the Seller.
(c) Pool Information:
The Original Pool
Balance, the Pool Balance, the
weighted average coupon, the
weighted average maturity (in
months) and the remaining number
of Receivables for both the first and
the last day of the preceding
Collection Period, after giving effect
to payments allocated to principal
reported in (b)(ii) above.
(d) Receivables Repurchased or
Substituted by Seller:
The number and
aggregate Purchase Amount of
Receivables repurchased by Seller
and for any substitution of
Receivables, the number and
principal balance of both the
Receivables being replaced and the
Receivables substituted.
(e) Delinquency Information:
The amount of
Receivables (other than Defaulted
Receivables and Liquidated
Receivables) as to which Obligors
are (i) 30 days to 59 days past due
and (ii) 60 days to 89 days past due
in making Scheduled Payments.
(f) Repossession Information:
The number and
principal balance of Receivables as to
which the Servicer has repossessed
the Financed Vehicle during the
current period and on a cumulative
basis.
(g) Liquidated and Defaulted
Receivables Information:
The number and
principal balance of Receivables
which became Liquidated
Receivables (other than Receivables
previously characterized as Defaulted
Receivables) and the number and
principal balance of Receivables
which became Defaulted Receivables
during the Collection Period and on
a cumulative basis.
(h) Recoveries:
The amount of Liquidation
Proceeds, the amount of insurance
claims paid under the VSI Insurance
Policy, the amount of rebates
received from the Servicer as a
result of cancelled warranty or
extended service contracts and the
amount of claims paid under
consumer insurance during the
related Collection Period and on a
cumulative basis.
(i) Retention Amount:
The beginning balance, the
amount added with respect to
Additional Receivables or quarterly
reserve loss deficiency, the amount
subtracted with respect to approved
claims and quarterly reserve loss
surplus, and the ending balance.
(j) Risk Default Insurance Proceeds:
The amount of insurance
proceeds paid under the Risk Default
Insurance Policy.
(k) Net Losses:
The amount of Net
Losses, if any, on such Distribution
Date and the cumulative amount of
all Net Losses realized on the
Receivables since the Closing Date.
(l) Insurance Claims:
The number of
Receivables as to which a claim was
filed under the Risk Default Policy
or the VSI Insurance Policy, the
amount of such claims, the number
of claims rejected and the principal
balance of related Receivables
rejected under the Risk Default
Policy for the related Collection
Period and on a cumulative basis.
(m) Funding Account:
The beginning
balance, the amount withdrawn to
purchase Additional Receivables and
to make deposits to the Reserve
Fund, the amount of any
reinvestment income earned on the
moneys on deposit therein, and the
ending balance.
(n) Collection Account:
The amount of
reinvestment income on funds held in
the Collection Account.
(o) Other Information:
Any other information
regarding each distribution which any
Certificateholder reasonably requests
in writing 30 days prior to such
distribution and which the Trustee
can provide without undue expense
or effort.
Within thirty (30) days after the end of each
calendar year, the Trustee shall furnish to each
Person who at any time during such calendar year
was a Certificateholder of record and received any
payment thereon (a) a report as to the aggregate of
amounts reported pursuant to clauses (b)(i), (ii) and
(iii) of this Section 5.09 for such calendar year or
applicable portion thereof during which such Person
was a Certificateholder and (b) such information as
may be reasonably requested by the
Certificateholders or required by the Code, and the
regulations thereunder, to enable such Holders to
prepare their federal and state income tax returns.
The obligation of the Trustee set forth in this
paragraph shall be deemed to have been satisfied to
the extent that substantially comparable information
shall be provided by the Backup Servicer pursuant
to any requirements of the Code. The parties
hereto further agree to treat each series of
Certificates as separate from each other series
created under the Master Trust Agreement for
federal income tax purposes.
The Seller shall prepare any tax returns or
other forms required to be filed by the Trust. The
Trustee, upon request, will furnish the Seller with
all such information known to the Trustee as may
be reasonably required in connection with the
preparation of all tax returns of the Trust.
Section 5.10. Reliance on Information
from the Servicer. Notwithstanding anything to the
contrary contained in this Agreement, all
distributions from any of the accounts described in
this Article V and any movement of cash between
such accounts shall be made by the Trustee in
reliance on information provided to the Trustee by
the Servicer in writing, whether by way of the
Servicer's Monthly Servicing Certificate or
otherwise unless the Trustee has actual knowledge
or notice of any inaccuracy therein.
ARTICLE VI
RIGHTS OF CERTIFICATEHOLDERS
The Certificates shall represent fractional
undivided interests in the assets of the Trust which
shall consist of the right to receive, at the time and
in the amount specified herein pursuant to Section
5.01, a Percentage Interest in distributions with
respect to the Trust Property secured by funds
available pursuant to the Reserve Fund. Any other
right to receive payments or distributions hereunder
shall not represent any interest in the Accounts or
the Reserve Fund, except as specifically provided in
this Agreement. The parties hereto and the
Certificateholders agree that the Certificates
represent undivided interests in the Receivables,
which Receivables shall constitute stripped bonds
within the meaning of Section 1286 of the Code.
The parties hereto further agree to treat the
Certificates as separate from all other series of
certificates created under the Master Trust
Agreement for federal income tax purposes.
ARTICLE VII
THE CERTIFICATES
Section 7.01. The Certificates. The
Certificates shall be substantially in the forms of
Exhibit A-1 and A-2 hereto. The Class A and
Class B Certificates shall be issuable in minimum
denominations in Certificate Balances of $1,000,000
and integral multiples of $1,000 in excess thereof,
except that one Class A Certificate or Class B
Certificate may be issued in a different
denomination to account for an odd initial aggregate
Certificate Balance. The Certificates shall be
executed on behalf of the Trust by manual or
facsimile signature of a Trustee Officer of the
Trustee under the Trustee's seal imprinted thereon
and shall bear legends restricting the transfer
thereof. Certificates bearing the manual or
facsimile signatures of individuals who were, at the
time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be
valid and binding obligations of the Trust,
notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or
did not hold such offices at the date of such
Certificates.
Section 7.02. Execution, Authentication of
Certificates. The Trustee shall cause the
Certificates to be executed on behalf of the Trust,
and delivered to or upon the written order of the
Seller pursuant to this Agreement. No Certificate
shall entitle its Holder to any benefit under this
Agreement or shall be valid for any purpose, unless
there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in
Exhibits A-1 and A-2 hereto executed by the
Trustee by manual signature; such authentication
shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated
the date of their authentication.
Section 7.03. Registration of Transfer and
Exchange of Certificates.
(a) The Certificate Registrar shall
maintain a Certificate Register in which,
subject to such reasonable regulations as it
may prescribe, the Certificate Register shall
provide for the registration of Certificates
and transfers and exchanges of Certificates
as provided in this Agreement. The Trustee
is hereby initially appointed Certificate
Registrar for the purpose of registering
Certificates and transfers and changes of
Certificates as provided in this Agreement.
In the event that, subsequent to the Closing
Date, the Trustee notifies the Seller that it is
unable to act as Certificate Registrar, the
Seller shall appoint another bank or trust
company, having an office or agency located
in the Borough of Manhattan, The City of
New York, agreeing to act in accordance
with the provisions of this Agreement
applicable to it, and otherwise acceptable to
the Trustee, to act as successor Certificate
Registrar under this Agreement.
No transfer of a Certificate shall be
made unless (I) (a) such transfer is made
pursuant to an effective registration
statement under the Securities Act and any
applicable state securities laws or (b) (i)
such transfer is exempt from the registration
requirements under the Securities Act and
such state securities laws or (ii) the
Certificate Registrar is notified by such
transferee that such Certificate will be
registered in the name of the Clearing
Agency or its nominee and shall be held by
such transferee in book-entry form through
the Clearing Agency, and (II) such transfer
is to a Person that satisfies the requirements
of paragraph (a) (2) (i) or (a) (2) (ii) of Rule
3a-7 as then in effect or any successor rule
("Rule 3a-7") under the Investment
Company Act. Each prospective purchaser
of a non-registered Certificate not held in
book-entry form shall deliver a completed
and duly executed Transferee's Certificate in
the form of Exhibit K or L, as applicable, to
the Trustee and to the Seller for inspection
prior to effecting any requested transfer.
The Seller and the Trustee may rely
conclusively upon the information contained
in any such certificate in the absence of
knowledge to the contrary. In connection
with any transfer within three years from the
date of the initial issuance of the Certificates
(other than the transfer of any Certificate
that is or has become registered under the
Securities Act on or before such transfer or
any transfer of a Certificate held in book-
entry form), the Trustee shall (except in the
case of a transfer to a "qualified institutional
buyer") require an Opinion of Counsel to
the effect that such transfer may be effected
without registration under the Securities Act,
which Opinion of Counsel shall be addressed
to the Seller and the Trustee and shall be
secured at the expense of the Holder. Each
Certificate Owner shall be deemed to have
agreed to these restrictions on transfer.
(b) If an election is made to hold a
Certificate in book-entry form, the
Certificate shall be registered in the name of
a nominee designated by the Clearing
Agency (and may be aggregated as to
denominations with other Certificates held
by the Clearing Agency). With respect to
Certificates held in book-entry form:
(1) the Certificate
Registrar and the Trustee will be
entitled to deal with the Clearing
Agency for all purposes of this
Agreement (including the payment of
principal of and interest on the
Certificates and the giving of
instructions or directions hereunder)
as the sole Holder of the Certificates,
and shall have no obligation to the
Certificate Owners;
(2) the rights of
Certificate Owners will be exercised
only through the Clearing Agency
and will be limited to those
established by law and agreements
between such Certificate Owners and
the Clearing Agency and/or the
Clearing Agency Participants
pursuant to the Depository
Agreement;
(3) whenever this
Agreement requires or permits
actions to be taken based upon
instructions or directions of Holders
of Certificates evidencing a specified
percentage of the Outstanding
Amount of the Certificates, the
Clearing Agency will be deemed to
represent such percentage only to the
extent that it has received
instructions to such effect from
Certificate Owners and/or Clearing
Agency Participants owning or
representing, respectively, such
required percentage of the beneficial
interest in the Certificates and has
delivered such instructions to the
Trustee; and
(4) without the consent of
the Seller and the Trustee, no such
Certificate may be transferred by the
Clearing Agency except to a
successor Clearing Agency that
agrees to hold such Certificate for
the account of the Certificate Owners
or except upon the election of the
Certificate Owner thereof or a
subsequent transferee to hold such
Certificate in physical form.
Neither the Trustee nor the
Certificate Registrar shall have any
responsibility to monitor or restrict the
transfer of beneficial ownership in any
Certificate an interest in which is
transferable through the facilities of the
Clearing Agency.
The Seller shall cause each
Certificate to contain a legend stating that
transfer of the Certificates is subject to
certain restrictions and referring prospective
purchasers of the Certificates to this Section
7.03 with respect to such restrictions.
(c) No transfer of an ERISA-
Restricted Certificate (other than a
Certificate held in book-entry form) shall be
made to any Person unless the Trustee and
Seller have received (A) a certificate
(substantially in the form of Exhibit M)
from such transferee to the effect that such
transferee (i) is not a Plan or a Person that
is using the assets of a Plan to acquire such
Certificate or (ii) is an insurance company
investing assets of its general account and
the exemptions provided by Section III(a) of
Department of Labor Prohibited
Transactions Class Exemption 95-60, 60
Fed. Reg. 35925 (July 12, 1995) (the
"Exemptions") apply to the transferee's
acquisition and holding of any such
Certificate or (B) an opinion of counsel
satisfactory to the Trustee and the Seller to
the effect that the purchase and holding of
such Certificate will not constitute or result
in the assets of the Trust being deemed to be
"plan assets" subject to the prohibited
transactions provisions of ERISA or Section
4975 of the Code and will not subject the
Trustee or the Seller to any obligation in
addition to those undertaken in the
Agreement; provided, however, that the
Trustee will not require such certificate or
opinion in the event that, as a result of a
change of law or otherwise, counsel
satisfactory to the Trustee has rendered an
opinion to the effect that the purchase and
holding of a Certificate by a Plan or a
Person that is purchasing or holding such a
Certificate with the assets of a Plan will not
constitute or result in a prohibited
transaction under ERISA or Section 4975 of
the Code. Any Certificate Owners of a
Certificate held in book-entry form shall be
deemed to have made the representation in
clause (A) of this preceding sentence by its
acceptance of such Certificate. The
preparation and delivery of the certificate
and opinions referred to above shall not be
an expense of the Trust, the Trustee nor any
other party to the Agreement but shall be
borne by the Holder.
(d) The Certificates, until such time,
if at all, as they become registered under the
Securities Act, shall bear legends stating that
they have not been registered under the
Securities Act and are subject to the
restrictions on transfer described in Section
7.03(a). The Certificates shall additionally
bear legends stating that they are subject to
the restrictions on transfer described in
Section 7.03(c). By purchasing a
Certificate, each purchaser shall be deemed
to have agreed to these restriction on
transfer.
(e) The Holder of a Certificate
desiring to effect any transfer or assignment
shall, and the transferee of such Certificate
by purchasing such Certificate agrees to,
indemnify the Trustee and the Seller against
any liability that may result if the transfer or
assignment is not made in accordance with
the provisions of this Section 7.03 and
applicable federal and state securities laws.
(f) Upon surrender for registration
of transfer of any Certificate at the
Corporate Trust Office, the Trustee shall
execute, authenticate and deliver, in the
name of the designated transferee or
transferees, one or more new Certificates of
the same Class in authorized denominations
of a like aggregate principal amount.
(g) At the option of a Class A or
Class B Certificateholder, such holder's
Certificates may be exchanged for other
Certificates of the same Class in authorized
denominations of a like aggregate principal
amount, upon surrender of the Certificates
to be exchanged at any such office or
agency. Whenever any Certificates are so
surrendered for exchange the Trustee on
behalf of the Trust shall execute,
authenticate and deliver the Certificates that
the Certificateholder making the exchange is
entitled to receive.
(h) Every Certificate presented or
surrendered for registration of transfer or
exchange shall be accompanied by a written
instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar
duly executed by the Holder or his attorney
duly authorized in writing. Each Certificate
surrendered for registration of transfer and
exchange shall be cancelled and
subsequently disposed of by the Trustee.
(i) No service charge shall be made
to the Certificateholders for any registration
of transfer or exchange of Certificates, but
the Trustee may require payment of a sum
sufficient to cover any tax or governmental
charge that may be imposed in connection
with any transfer or exchange of
Certificates.
Section 7.04. Mutilated, Destroyed, Lost or
Stolen Certificates. If (a) any mutilated Certificate
shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of
any Certificate (provided that a Certificateholder's
written statement with respect to such destruction,
loss or theft shall constitute satisfactory evidence
thereof) and (b) there shall be delivered to the
Certificate Registrar and the Trustee such security
or indemnity as may be required by them to save
each of them harmless, then in the absence of notice
that such Certificate shall have been acquired by a
bona fide purchaser, the Trustee on behalf of the
Trust shall execute and the Trustee shall
authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of
any new Certificate under this Section 7.04, the
Trustee and the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate
issued pursuant to this Section 7.04 shall constitute
conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 7.05. Persons Deemed Owners.
Prior to due presentation of a Certificate for
registration of transfer, the Trustee or the
Certificate Registrar may treat the Person in whose
name any Certificate shall be registered as the
owner of such Certificate for the purpose of
receiving distributions pursuant to Section 5.06 and
for all other purposes whatsoever, and neither the
Trustee nor the Certificate Registrar shall be bound
by any notice to the contrary.
Section 7.06. Access to List of
Certificateholders' Names and Addresses. The
Trustee shall furnish or cause to be furnished to the
Servicer, at the expense of the Trust, within 15
days after receipt by the Trustee of a request
therefor from the Servicer in writing, a list, in such
form as the Servicer may reasonably require, of the
names and addresses of the Certificateholders as of
the most recent Record Date. Each Holder, by
receiving and holding a Certificate, shall be deemed
to have agreed to hold neither the Servicer nor the
Trustee accountable by reason of the disclosure of
its name and address, regardless of the source from
which such information was derived.
Section 7.07. Maintenance of Office or
Agency. The Trustee shall maintain in
Minneapolis, Minnesota, or New York, New York,
an office or offices or agency or agencies where
Certificates may be surrendered for registration of
transfer or exchange and where notices and
demands to or upon the Trustee in respect of the
Certificates and this Agreement may be served.
The Trustee initially designates the Corporate Trust
Office as specified in this Agreement as its office
for such purposes. The Trustee shall give prompt
written notice to the Backup Servicer and to the
Certificateholders of any change in the location of
the Certificate Register or any such office or
agency.
Section 7.08. Notices to Certificateholders.
Whenever notice or other communication to the
Certificateholders is required under this Agreement,
the Trustee shall give all such notices and
communications specified herein to be given to
Holders of the Certificates at their respective
addresses as they appear in the Certificate Register.
ARTICLE VIII
THE SELLER
Section 8.01. Representations of Seller.
The Seller makes the following representations on
which the Trustee relies in accepting the
Receivables in trust and executing and
authenticating the Certificates on the Closing Date.
The representations speak as of the Closing Date,
but shall survive the pledge, transfer and
assignment of the Receivables to the Trustee in trust
for the benefit of the Certificateholders.
(a) Organization and Good
Standing. The Seller is a corporation duly
organized, validly existing and in good
standing under the laws of the State of
Delaware.
(b) Due Qualification. The
Seller is in good standing and duly qualified
to do business and has obtained all necessary
licenses and approvals in the States of
Delaware and New Jersey and all other
jurisdictions in which the ownership or lease
of property or the conduct of its business
shall require such qualifications, unless the
failure of the Seller to obtain such licenses
and approvals would have no material
adverse effect on the Seller's ability to fulfill
its obligations hereunder.
(c) Power and Authority. The
Seller has the power and authority to
execute and deliver this Agreement and to
carry out its terms; the Seller has full power
and authority to sell and assign the property
to be so sold and assigned to and deposited
with the Trustee as part of the Trust and
such sale and assignment is valid and
binding against the Seller and has been duly
authorized by the Seller by all necessary
action; and the execution, delivery and
performance of this Agreement have been
duly authorized by the Seller by all
necessary action and this Agreement is the
legal, valid and binding obligation of the
Seller, enforceable in accordance with its
terms. The Seller has duly executed and
delivered this Agreement and any other
agreements and documents necessary to
effectuate the transactions contemplated
hereby.
(d) No Violation. The
consummation of the transactions
contemplated by this Agreement and the
fulfillment of the terms hereof neither
conflict with, result in any breach of any of
the terms and provisions of, nor constitute
(with or without notice or lapse of time) a
default under, the certificate of incorporation
or bylaws of the Seller, or any indenture,
agreement, or other instrument to which the
Seller is a party or by which it shall be
bound; nor result in the creation or
imposition of any Lien upon any of its
properties pursuant to the terms of any such
indenture, agreement or other instrument
(other than this Agreement); nor violate any
law or, to the best of the Seller's
knowledge, any order, rule or regulation
applicable to the Seller of any court or of
any federal or State regulatory body,
administrative agency or other governmental
instrumentality having jurisdiction over the
Seller or its properties.
(e) No Proceedings. To the
Seller's knowledge, there are no proceedings
or investigations pending, or threatened,
before any court, regulatory body,
administrative agency, or other
governmental instrumentality having
jurisdiction over the Seller or its properties:
(i) asserting the invalidity of this
Agreement, the Purchase Agreement or the
Certificates; (ii) seeking to prevent the
issuance of the Certificates or the
consummation of any of the transactions
contemplated by the Purchase Agreement or
this Agreement; (iii) seeking any
determination or ruling that might materially
and adversely affect the performance by the
Seller of its obligations under, or the
validity or enforceability of, this Agreement,
the Purchase Agreement or the Certificates;
or (iv) relating to the Seller and which might
adversely affect the federal or State income
tax attributes of the Certificates.
(f) No Approvals. No
approval, authorization or other action by,
or filing with, any governmental authority of
the United States of America or any of the
States is required or necessary to
consummate the transactions contemplated
hereby, except as such as have been duly
obtained or made by the Closing Date.
Seller complies in all material respects with
all applicable laws, rules and orders with
respect to itself, its business and properties
and the Receivables; and Seller maintains all
applicable permits and certifications.
(g) Taxes. The Seller has filed
all federal, State, county, local and foreign
income, franchise and other tax returns
required to be filed by it through the date
hereof, and has paid all taxes reflected as
due thereon. There is no pending dispute
with any taxing authority that, if determined
adversely to the Seller, would result in the
assertion by any taxing authority of any
material tax deficiency, and the Seller has
no knowledge of a proposed liability for any
tax to be imposed upon the Seller's
properties or assets for which there is not an
adequate reserve reflected in the Seller's
current financial statements.
(h) Adequate Provisions for
Taxes. The provisions for taxes on the
Seller's books are in accordance with
generally accepted accounting principles.
(i) Pension/Profit Sharing
Plans. No contribution failure has occurred
with respect to any pension or profit sharing
plan to which the Seller or any of its
Affiliates is a contributor, and all such plans
have been fully funded as of the date of this
Agreement.
(j) Trade Names. "Aegis Auto
Funding Corp. IV" is the only trade name
under which the Seller is currently operating
its business and under which the Seller
operated its business for the period of time
during which the Seller was in existence
preceding the Closing Date.
(k) Ability to Perform. There
has been no material impairment in the
ability of Seller to perform its obligations
under this Agreement.
(l) Chief Executive Office.
Since it commenced operations, the Seller
has maintained its chief executive office in
the State of Delaware and there have been
no other locations of the Seller's chief
executive office preceding the Closing Date.
The Seller shall give written notice to the
Trustee and the Certificateholders at least 30
days prior to relocating its chief executive
office and shall make such filings under the
UCC as shall be necessary to maintain the
perfected, first priority security interest in
the Receivables granted hereunder in favor
of the Trust.
(m) Adverse Orders. There is
no injunction, writ, restraining order or
other order of any nature binding upon
Seller that adversely affects Seller's
performance of this Agreement and the
transactions contemplated thereby.
(n) Solvent. Seller is solvent
and will not become insolvent after giving
effect to the transactions contemplated
hereunder; Seller is paying its debts as they
become due; Seller, after giving effect to the
contemplated transactions, will have
adequate capital to conduct its business.
(o) Lock-Box Account. Each
Obligor of a Receivable has been, or will be
within 30 days of the Closing Date or
Funding Date when acquired, directed and is
required to remit payments to the Lock-Box
Account.
(p) Consolidation. Seller has
operated and will operate its business such
that its assets and liabilities will not be
substantively consolidated with the assets
and liabilities of Aegis Finance and its
separate existence will not be disregarded in
any state or federal court proceeding.
(q) Business Purpose. The
Seller will acquire and sell, transfer, assign
and otherwise convey (for state law, tax and
financial accounting purposes) the
Receivables for a bona fide business
purpose.
(r) Federal Income Tax
Purposes. The Seller intends to treat the
transactions contemplated under this
Agreement as a sale of the Receivables to
the Trust for federal income tax purposes,
subject to the retention by the Seller of a
stripped coupon therein as described in
Section 1286 of the Code. The Seller
intends to cause to be filed all returns or
reports in a manner consistent with such
treatment. In addition, the Seller intends to
treat each other trust created under the
Master Trust Agreement as an entity
separate from the Trust for federal income
tax purposes. Further, the Seller intends to
treat the Reserve Fund as property separate
from any interest in any trust the Seller may
acquire, including but not limited to any
interest in the Excess Receipts.
(s) Valid Transfer. The
Purchase Agreement constitutes a valid
transfer to the Seller of all of Aegis
Finance's right, title and interest in the
Receivables transferred to the Seller
pursuant to such Purchase Agreement.
(t) Seller's Obligations. The
Seller has submitted all necessary
documentation for payment of the
Receivables to the Obligors and has fulfilled
all of its applicable obligations hereunder
required to be fulfilled as of the Closing
Date.
(u) 1940 Act. The Seller is
not, and is not controlled by, an "investment
company" registered or required to be
registered under the Investment Company
Act of 1940, as amended.
Section 8.02. Liability of Seller;
Indemnities. The Seller shall be liable in
accordance herewith only to the extent of the
obligations specifically undertaken by the Seller
under this Agreement, and only to the extent of the
Seller's interest in the Trust Property.
(a) The Seller shall indemnify,
defend and hold harmless the Trustee, the
Trust, the Backup Servicer, the Custodian
and each Certificateholder from and against
any taxes, other than income and franchise
taxes, that may at any time be asserted
against the Trustee, the Trust, the Backup
Servicer, the Custodian or the
Certificateholders with respect to, and as of
the date of, the transfer of the Receivables
to the Trust or the issuance and original sale
of the Certificates, including any sales,
gross receipts, general corporation, tangible
personal property, privilege or license taxes
and costs and expenses in defending against
the same.
(b) The Seller shall assume,
defend and hold harmless the Trustee, the
Trust, the Backup Servicer, the Custodian
and each Certificateholder from and against
any loss, liability, expense or action, suit,
claim or damage incurred by reason of (i)
the Seller's willful misfeasance, bad faith or
negligence in the performance of its duties
under this Agreement, or by reason of
reckless disregard of its obligations and
duties under this Agreement (and such
indemnity shall extend to the performance of
the Seller's duties and the satisfaction of its
obligations with respect to any Receivables
that become Purchased Receivables, as
provided in this Agreement), (ii) the Seller's
violation of federal or State securities laws
in connection with the exemption from
registration of the sale of the Certificates,
and (iii) any transaction arising out of or
contemplated by this Agreement except any
loss, liability, expense, action, suit, claim or
damage arising out of the failure to pay
principal, premium, if any, or interest with
respect to the Certificates to the extent such
failure does not result from the Seller's
omission to comply with the terms of this
Agreement or acts of the Seller in
contravention of this Agreement.
The assumption of liability or
indemnification under this Section 8.02 shall
include, without limitation, reasonable fees and
expenses of counsel and expenses of litigation and
shall survive termination of this Agreement. If the
Seller shall have made any payments to the Trustee
pursuant to this Section and the Trustee thereafter
shall collect any of such amounts from others, the
Trustee shall repay such amounts to such party
without interest. Notwithstanding anything to the
contrary herein, the liability of the Seller under this
Section 8.02 is intended to be the same primary
liability as would apply to the general partner of a
limited partnership organized under the laws of the
State of Delaware. Potential creditors of the Trust
are intended beneficiaries of the assumption of
liabilities by the Seller under this Section 8.02 and
may enforce such assumption in accordance with its
tenor.
Section 8.03. Merger or Consolidation of,
or Assumption of the Obligations of, Seller. Any
Person (a) into which the Seller may be merged or
consolidated, (b) which may result from any merger
or consolidation to which the Seller shall be a party,
or (c) which may succeed to the properties and
assets of the Seller substantially as a whole, which
Person in any of the foregoing cases executes an
agreement of assumption to perform every
obligation of the Seller under this Agreement, shall
be the successor to the Seller hereunder without the
execution or filing of any document or any further
act by any of the parties to this Agreement;
provided, however, that (i) immediately after giving
effect to such transaction, no representation or
warranty or covenant made pursuant to Section 3.01
or Section 8.01 shall have been breached, no Event
of Servicing Default, and no event that, after notice
or lapse of time, or both, would become an Event
of Servicing Default shall have happened and be
continuing and the conditions of Section 8.07(a)(ii)
shall have been satisfied, (ii) the Seller shall have
delivered to the Trustee and each Certificateholder
an Officer's Certificate and an Opinion of Counsel,
which shall be independent outside counsel, each
stating that such consolidation, merger or
succession and such agreement or assumption
comply with this Section 8.03 and that all
conditions precedent, if any, provided for in this
Agreement relating to such transaction have been
complied with, (iii) the Seller shall have delivered
to the Trustee an Opinion of Counsel, which shall
be independent outside counsel, either (A) stating
that, in the opinion of such counsel, all financing
statements and continuation statements and
amendments thereto have been executed and filed
that are necessary fully to preserve and protect the
interest of the Trustee in the Receivables, and
reciting the details of such filings, or (B) stating
that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such
interest and (iv) the Major Certificateholders shall
have consented to such merger, consolidation or
succession. The Seller shall provide notice of any
merger, consolidation or succession pursuant to this
Section 8.03 to each Certificateholder.
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
Seller and Others. The Seller and any director or
officer or employee or agent of the Seller may rely
in good faith on the written advice of counsel or on
any document of any kind, prima facie properly
executed and submitted by any Person respecting
any matters arising hereunder.
Section 8.05. Seller May Own Certificates.
The Seller and any Affiliate of the Seller may in its
individual or any other capacity become the owner
or pledgee of Certificates with the same rights as it
would have if it were not the Seller or an Affiliate
thereof, except as otherwise provided in the
definition of "Certificateholder" in Section 1.01.
Certificates so owned by or pledged to the Seller or
such Affiliate shall have an equal and proportionate
benefit under the provisions of this Agreement,
without preference, priority or distinction as among
all of the Certificates, other than with respect to
Voting Interests. Notwithstanding the foregoing,
the Seller will not, and will not permit any of their
Affiliates (or any Person acting on behalf of the
Seller or any such Affiliate) to directly or indirectly
acquire or make any offer to acquire any
Certificates unless the Seller or such Affiliate (or
such Person acting on behalf thereof) shall have
offered to acquire Certificates, pro rata, from all
Holders and upon the same terms.
Section 8.06. Covenants of the Seller. The
Seller shall:
(a) not impair the rights of the
Certificateholders or the Trustee in the
Receivables;
(b) except for the sale and
assignment effected under this Agreement
and prior to the termination of the Trust, not
sell, pledge, assign, or transfer to any other
Person, or grant, create, incur, assume, or
suffer to exist any Lien on any Receivable
sold to the Trustee or any interest therein;
(c) immediately notify the
Trustee of the existence of any Lien on any
Receivable;
(d) defend the right, title, and
interest of the Trustee in, to, and under the
Receivables transferred to the Trustee,
against all claims of third parties claiming
through or under the Seller, Aegis Finance
or the Servicer;
(e) make at its sole cost and
expense any filings, reports, notices,
applications, registrations with, and seek any
consents or authorizations from, the
Securities and Exchange Commission and
any state securities authority on behalf of the
Trust as may be necessary or advisable or
reasonably requested by the Trustee, and
shall comply with any federal or State
securities or reporting requirements laws;
(f) comply in all respects with
the terms and conditions of the Purchase
Agreement and not amend, modify, or
waive any provision of the Purchase
Agreement in any manner relating to the
obligation of Aegis Finance to repurchase
Receivables or in any manner that would
have a materially adverse effect on the
interests of the Certificateholders;
(g) promptly after receipt of
knowledge thereof, notify the Trustee and
the Certificateholders of the occurrence of
any Event of Backup Servicing Default or
Event of Servicing Default and any breach
by the Seller or the Backup Servicer of any
of its respective covenants or representations
and warranties contained in this Agreement
or, with respect to the Seller, in the
Purchase Agreement;
(h) make at its sole cost and
expense any filings, reports, notices, or
applications and seek any consents or
authorizations from any and all government
agencies, tribunals, or authorities in
accordance with the UCC and any State
vehicle license or registration authority on
behalf of the Trust as may be necessary or
advisable or reasonably requested by the
Trustee to create, maintain and protect a
first-priority perfected security interest of
the Trust in, to, and on the Financed
Vehicles and a first-priority perfected
ownership interest of the Trust in, to, and
on the Receivables transferred to it;
(i) upon request of any
Certificateholder, furnish the information
required by paragraph (d)(4) of Rule 144A
promulgated under the Securities Act.
Section 8.07. Enforcement by Trustee.
The Seller hereby acknowledges and agrees that the
following covenants and agreements of the Seller
shall be enforceable by the Trustee at all times until
the Trust is terminated.
(a) Covenants Regarding
Operations:
(i) The Seller shall not
engage in any business or activity
other than in connection with or
relating to the purchase of auto loan
receivables and the issuance of debt
secured by, or certificates of
participation in, a pool of auto loan
receivables.
(ii) The Seller shall not
consolidate or merge with or into any
other entity or convey or transfer its
properties and assets substantially as
an entirety to any entity unless (A)
the entity (if other than the Seller)
formed or surviving such
consolidation or merger, or that
acquires by conveyance or transfer
the properties and assets of the Seller
substantially as an entirety, shall be
organized and existing under the
laws of the United States of America
or any State thereof or the District of
Columbia, and shall expressly
assume in form satisfactory to the
Majority Certificateholders, the
performance of every covenant on
the part of the Seller to be performed
or observed pursuant to this
Agreement and the Purchase
Agreement, (B) immediately after
giving effect to such transaction, no
default or event of default under this
Agreement shall have occurred and
be continuing, (C) the Seller shall
have delivered to each
Certificateholder and the Trustee an
Officers' Certificate and an opinion
of independent counsel, each stating
that such consolidation, merger,
conveyance or transfer comply with
this Agreement and (D) the Majority
Certificateholders shall have
consented thereto.
(iii) The Seller shall not
dissolve or liquidate, in whole or in
part, except (A) as permitted in
paragraph (ii) above or (B) with the
prior written consent of the Trustee
and the Majority Certificateholders.
(iv) The funds and other
assets of the Seller shall not be
commingled with those of any other
corporation, entity or Person,
including, but not limited to, the
parent or Affiliates of the Seller.
(v) The Seller shall not
hold itself out as being liable for the
debts of any other party, including,
but not limited to, the debts of the
parent or Affiliates of the Seller.
(vi) The Seller shall not
form, or cause to be formed, or
otherwise have, any subsidiaries.
(vii) The Seller shall act
solely in its corporate name and
through the duly authorized officers
or agents in the conduct of its
business, and shall conduct its
business so as not to mislead others
as to the identity of the entity with
which they are concerned.
(viii) At all times, except
in the case of a temporary vacancy,
which shall promptly be filled, the
Seller shall have on its board of
directors at least two directors each
of whom qualifies as an
"Independent Director" as such term
is defined in the Seller's Certificate
of Incorporation as originally filed
with the Delaware Secretary of
State's office.
(ix) The Seller shall
maintain records and books of
account of the Seller and shall not
commingle such records and books
of account with the records and
books of account of any Person.
The books of the Seller may be kept
(subject to any provision contained in
the statutes) inside or outside the
State of New Jersey at such place or
places as may be designated from
time to time by the board of
directors of the Seller.
(x) The board of directors
of the Seller shall hold appropriate
meetings to authorize all of its
corporate actions. Regular meetings
of the board of directors of the Seller
shall be held not less frequently than
three times per annum.
(xi) Meetings of the
shareholders of the Seller shall be
held not less frequently than one time
per annum.
(xii) The Seller shall not
amend, alter, change or repeal any
provision contained in this
Section 8.07(a) without (A) the
affirmative vote in favor thereof of
eighty percent (80%) of the then
outstanding shares of the Seller
entitled to vote thereon and (B) the
prior written consent of the Trustee
and the Majority Certificateholders.
(xiii) The Seller shall not,
without the affirmative unanimous
vote of the whole board of directors
of the Seller (including at least one
director referred to in clause (viii)
above), institute any proceedings to
adjudicate the Seller a bankrupt or
insolvent, consent to the institution
of bankruptcy or insolvency
proceedings against the Seller, file a
petition seeking or consenting to
reorganization or relief under any
applicable federal or State law
relating to bankruptcy, consent to the
appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or
other similar official) of the Seller or
a substantial part of its property or
admit its inability to pay its debts
generally as they become due or
authorize any of the foregoing to be
done or taken on behalf of the Seller.
(xiv) The Seller is not and
shall not be involved in the day-to-
day or other management of its
parent or any of its Affiliates.
(xv) Other than the
purchase and sale or pledge of assets
as provided in this Agreement and
related agreements with respect to
this transaction and other transactions
relating to the purchase of auto loan
receivables and the issuance of debt
or certificates of participation as
contemplated by the Master Trust
Agreement, the Seller shall engage in
no other transactions with any of its
Affiliates.
(xvi) Seller shall maintain a
separate business office and
telephone number from any of its
Affiliates.
(xvii) Seller's financial
statements shall reflect its separate
legal existence from any of its
Affiliates.
(xviii) The Seller will not
amend its Certificate of Incorporation
in any respect material to the
Certificateholders.
(xix) The Seller shall use
separate invoices, stationery and
checks.
(xx) The Seller shall not
suffer or permit the credit or assets
of Aegis Finance to be held out as
available for the obligations of the
Seller.
(xxi) The Seller shall enter
into transactions with Aegis Finance
or its affiliates only on commercially
reasonable terms.
(xxii) The Seller shall not
incur or issue any "Obligation" (as
such term is defined in its Certificate
of Incorporation) in contravention of
the limitations set forth therein.
(xxiii) The Seller shall not
issue any "Securities" or incur or
issue any "Obligations" (as such
terms are defined in its Certificate of
Incorporation) under any other
pooling and servicing agreement,
purchase agreement or otherwise,
unless such agreement contains an
express provision substantially
similar to Section 13.10 hereof
limiting recourse to the Seller to the
assets involved in the transaction to
which such agreement relates.
(xxiv) The Seller will
maintain its valid corporate existence
in good standing under the laws of
the State of Delaware; (ii) will
observe all corporate procedures
required by its Certificate of
Incorporation and Bylaws (the
"Bylaws") and the laws of the State
of Delaware; and (iii) and will
otherwise comply with the provisions
of its Certificate of Incorporation and
Bylaws and the Delaware General
Corporation Law.
(xxv) Financial and
operational services, including,
without limitation, maintenance of
the Seller's books and records, will
be performed on behalf of the Seller
by independent contractors. The
Seller will make payments to such
independent contractors for such
services rendered or expenses
incurred on its behalf in an amount
equal to the fair value of such
services and expenses. To the extent
the Seller leases premises from Aegis
Finance or its Affiliates, the Seller
will pay appropriate compensation or
rental. The Seller will be directly
responsible for the costs of outside
legal, auditing and other similar
services. The Seller will provide for
its operating expenses and liabilities
from its own funds.
(xxvi) The annual financial
statements of the Seller will disclose
the effects of these transactions in
accordance with generally accepted
accounting principles. Any
consolidated financial statements
which consolidate the assets and
earnings of Aegis Finance with those
of the Seller will contain a footnote
stating that the assets of Aegis
Finance will not be available to
creditors of Seller. Audited financial
statements of the Seller will disclose
that the assets of the Seller are not
available to pay creditors of Aegis
Finance.
Section 8.08. No Bankruptcy Petition. The
Seller covenants and agrees that prior to the date
which is one year and one day after the payment in
full of all securities issued by the Seller or by a
trust for which the Seller was the depositor, which
securities were rated by any nationally recognized
statistical rating organization, it will not institute
any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other
proceedings under any federal or State bankruptcy
or similar law.
ARTICLE IX
THE BACKUP SERVICER
Section 9.01. Representations of Backup
Servicer. The Backup Servicer makes the following
representations on which the Trustee relies in
accepting the Receivables in trust and executing and
authenticating the Certificates on the Closing Date.
The representations speak as of the Closing Date,
but shall survive the sale and assignment of the
Receivables to the Trustee in trust for the benefit of
the Certificateholders.
(a) Organization and Good
Standing. The Backup Servicer shall have
been duly organized and shall be validly
existing and in good standing under the
federal laws of the United States of
America, with power and authority to own
its properties and to conduct its business as
such properties shall be currently owned and
such business is presently conducted.
(b) Power and Authority. The
Backup Servicer shall have the power and
authority to execute and deliver this
Agreement and the Servicing Agreement and
to carry out their respective terms; and the
execution, delivery and performance of this
Agreement and the Servicing Agreement
shall have been duly authorized by the
Backup Servicer by all necessary corporate
action. Each of this Agreement and the
Servicing Agreement constitutes the valid
and binding obligation of the Backup
Servicer enforceable in accordance with its
terms.
(c) No Violation. The
consummation of the transactions by the
Backup Servicer contemplated by this
Agreement and the Servicing Agreement and
the fulfillment of the terms hereof and
thereof neither conflict with, result in any
breach of any of the terms and provisions
of, nor constitute (with or without notice or
lapse of time) a default under, the charter or
bylaws of the Backup Servicer, or, to the
best of the Backup Servicer's knowledge,
any indenture, agreement or other
instrument to which the Backup Servicer is
a party or by which it is bound; nor result in
the creation or imposition of any Lien upon
any of its properties pursuant to the terms of
any such indenture, agreement or other
instrument (other than this Agreement and
the Servicing Agreement); nor to the best of
the Backup Servicer's knowledge, any law,
order, rule or regulation applicable to the
Backup Servicer of any court or of any
federal or state regulatory body,
administrative agency, or other
governmental instrumentality having
jurisdiction over the Backup Servicer or its
properties.
(d) No Proceedings. To the
Backup Servicer's best knowledge, there are
no proceedings or investigations pending, or
threatened, before any court, regulatory
body, administrative agency or other
governmental instrumentality having
jurisdiction over the Backup Servicer or its
respective properties: (A) asserting the
invalidity of this Agreement or the Servicing
Agreement; (B) seeking to prevent the
consummation of any of the transactions
contemplated by this Agreement or the
Servicing Agreement; or (C) seeking any
determination or ruling that might materially
and adversely affect the performance by the
Backup Servicer of its obligations under, or
the validity or enforceability of, this
Agreement or the Servicing Agreement.
Section 9.02. Merger or Consolidation of,
or Assumption of the Obligations of, or
Resignation of Backup Servicer. Any Person (a)
into which the Backup Servicer may be merged or
consolidated, (b) which may result from any merger
or consolidation to which the Backup Servicer shall
be a party, (c) which may succeed to the properties
and assets of the Backup Servicer substantially as a
whole, or (d) which may succeed to the duties and
obligations of the Backup Servicer under this
Agreement and the Servicing Agreement following
the resignation of the Backup Servicer, whether or
not such Person executes an agreement of
assumption to perform every obligation of the
Backup Servicer hereunder and thereunder, shall be
the successor to the Backup Servicer under this
Agreement and the Servicing Agreement without
further act on the part of any of the parties to this
Agreement or the Servicing Agreement.
Section 9.03. Limitation on Liability of
Backup Servicer and Others. Neither the Backup
Servicer nor any of the directors or officers or
employees or agents of the Backup Servicer shall be
under any liability to the Trust or the
Certificateholders, except as provided under this
Agreement, for any action taken or for refraining
from the taking of any action pursuant to this
Agreement; provided, however, that this provision
shall not protect the Backup Servicer or any such
Person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith
or negligence in the performance of duties or by
reason of reckless disregard of obligations and
duties under this Agreement. The Backup Servicer
and any director or officer or employee or agent of
the Backup Servicer may rely in good faith on any
document of any kind prima facie properly executed
and submitted by any Person respecting any matters
arising under this Agreement.
Except as provided in this Agreement, the
Backup Servicer shall not be under any obligation
to appear in, prosecute or defend any legal action
that shall not be incidental to its duties under this
Agreement and the Servicing Agreement, and that
in its opinion may involve it in any expense or
liability; provided, however, that the Backup
Servicer may undertake any reasonable action that
it may deem necessary or desirable in respect of
this Agreement and the Servicing Agreement and
the rights and duties of the parties to this
Agreement and the Servicing Agreement and the
interests of the Certificateholders under this
Agreement and the Servicing Agreement. In such
event, the legal expenses and costs of such action
and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust and the
Backup Servicer shall be entitled to be reimbursed
therefor.
The Trustee shall distribute out of the
Collection Account on the Distribution Date
succeeding the delivery of the Opinion of Counsel
referred to below, without regard to any
deficiencies in the amounts required to be
distributed pursuant to Section 5.06, any expenses,
costs or liabilities required from the Trust pursuant
to this Section 9.03, provided, however, that the
Trustee shall only distribute amounts pursuant to
this Section 9.03 upon the Trustee's receipt of an
Opinion of Counsel to the effect that such
distribution is permitted by this Agreement.
Section 9.04. Successor Backup Servicer.
The Backup Servicer under this Agreement shall at
all times be a corporation or a banking association
organized and existing in good standing under the
laws of the United States or a state thereof; having
a combined capital and surplus not less than
$50,000,000 and subject to supervision or
examination by federal or state authorities. If such
association or corporation shall publish reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or
examining authority, then for the purpose of this
Section 9.04, the combined capital and surplus of
such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent
report of condition so published. In case at any
time the Backup Servicer shall cease to be eligible
in accordance with the provisions of this Section
9.04, or shall cease to be an Eligible Servicer, the
Backup Servicer shall resign immediately in the
manner and with the effect specified in Section
4.02.
Section 9.05. No Bankruptcy Petition. The
Backup Servicer covenants and agrees that prior to
the date which is one year and one day after the
payment in full of all securities issued by the Seller
or by the Trust it will not institute against, or join
any other Person in instituting against, the Seller
any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy
or similar law; provided, however, that nothing
contained herein shall prohibit the Backup Servicer
from participating in any existing bankruptcy
proceeding.
ARTICLE X
BACKUP SERVICING DEFAULT
Section 10.01. Events of Backup Servicing
Default. If any one of the following events
("Events of Backup Servicing Default") shall occur
and be continuing:
(a) Failure on the part of the
Backup Servicer duly to observe or to
perform in any material respect any
covenant or agreement of the Backup
Servicer set forth in this Agreement or the
Servicing Agreement, which failure shall (i)
materially and adversely affect the rights of
Certificateholders and (ii) continue
unremedied for a period of 30 days after the
date on which written notice of such failure,
requiring the same to be remedied, shall
have been sent (A) to the Backup Servicer
by the Trustee, or (B) to the Backup
Servicer and to the Trustee by the Holders
of Certificates evidencing not less than 20%
of the Voting Interests thereof; or
(b) The entry of a decree or order
by a court or agency or supervisory
authority having jurisdiction in the premises
for the appointment of a conservator,
receiver or liquidator for the Backup
Servicer in any insolvency, readjustment of
debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up
or liquidation of its affairs, and the
continuance of any such decree or order
unstayed and in effect for a period of 30
consecutive days; or
(c) The consent by the Backup
Servicer to the appointment of a conservator
or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or
relating to the Backup Servicer or of or
relating to substantially all of its property;
or the Backup Servicer shall admit in
writing its inability to pay its debts generally
as they become due, file a petition to take
advantage of any applicable insolvency or
reorganization statute, make an assignment
for the benefit of its creditors or voluntarily
suspend payment of its obligations;
then, and in each and every case, so long as an
Event of Backup Servicing Default shall not have
been remedied, either the Trustee, or the Holders of
the Certificates evidencing not less than 20% of the
Voting Interests thereof, by notice then given in
writing to the Backup Servicer (and to the Trustee
if given by the Certificateholders) may terminate all
of the rights and obligations of the Backup Servicer
under this Agreement. Thirty (30) days after the
receipt by the Backup Servicer of such written
notice, all authority and power of the terminated
Backup Servicer under this Agreement, whether
with respect to the Certificates or the Receivables
or otherwise, shall, without further action, pass to
and be vested in the Trustee if the Trustee is not the
same entity as the terminated Backup Servicer and
a successor Backup Servicer has not been appointed
under Section 10.02. The Trustee is hereby
authorized and empowered to execute and deliver,
on behalf of the predecessor Backup Servicer, as
attorney in fact or otherwise, any and all documents
and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to
effect the purposes of such notice of termination.
The predecessor Backup Servicer shall cooperate
with the successor Backup Servicer and the Trustee
in effecting the termination of the responsibilities
and rights of the predecessor Backup Servicer under
this Agreement.
Section 10.02. Appointment of Successor.
(a) Upon a Backup Servicer's
receipt of notice of termination pursuant to
Section 10.01 or a Backup Servicer's
resignation in accordance with Section 4.02,
the predecessor Backup Servicer shall
continue to perform its functions as Backup
Servicer under this Agreement until receipt
of such notice and, in the case of
resignation, until a successor Backup
Servicer shall have assumed the duties of the
Backup Servicer in accordance with this
Section 10.02. In the event of a Backup
Servicer's termination hereunder, the
Trustee (with the consent of the Majority
Certificateholders) shall appoint a successor
Backup Servicer, and the successor Backup
Servicer shall accept its appointment by a
written assumption in form acceptable to the
Trustee. In the event that a successor
Backup Servicer has not been so appointed
(i) within 45 days of delivery of notice of
termination, or (ii) within 30 days of
resignation, the Trustee may petition a court
of competent jurisdiction to appoint any
established institution, having a combined
capital and surplus of not less than
$50,000,000 and which is an Eligible
Servicer, as the successor to the Backup
Servicer under this Agreement.
(b) Upon appointment, the
successor Backup Servicer shall be the
successor in all respects to the predecessor
Backup Servicer and shall be subject to all
the responsibilities, duties and liabilities
arising thereafter relating thereto placed on
the predecessor Backup Servicer, including,
but not limited to, the assumption by the
Backup Servicer of all duties and obligations
of the Servicer in the event of an Event of
Servicing Default with respect to the
Servicer under the Servicing Agreement
pursuant to the terms therein and shall be
entitled to all of the rights granted to the
predecessor Backup Servicer, by the terms
and provisions of this Agreement.
(c) The outgoing Backup Servicer
shall deliver to the successor Backup
Servicer all documents and records in its
possession which are necessary to enable the
successor Backup Servicer to perform its
duties relating to the Servicing Agreement
and the Receivables and otherwise use its
best efforts to effect the orderly and efficient
transfer of the Servicing Agreement to the
successor Backup Servicer.
Section 10.03. Notification to
Certificateholders. Upon any termination of, or
appointment of a successor to, a Backup Servicer
pursuant to this Article X, the Trustee shall give
prompt written notice thereof to Certificateholders
at their respective addresses appearing in the
Certificate Register.
Section 10.04. Waiver of Past Defaults.
The Majority Certificateholders (or, in the case of
a default referred to in Section 10.01(a), the
Holders of Certificates evidencing 100% of the
Voting Interests thereof) may, on behalf of all
Holders of Certificates, waive any default by the
Backup Servicer in the performance of its
obligations hereunder and its consequences. Upon
any such waiver of a past default, such default shall
cease to exist, and any Event of Backup Servicing
Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement.
No such waiver shall extend to any subsequent or
other default or impair any right consequent
thereon.
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee. The
Trustee, both prior to the occurrence of an Event of
Backup Servicing Default and after an Event of
Backup Servicing Default shall have been cured or
waived, shall undertake to perform only such duties
as are specifically set forth in this Agreement. If
an Event of Backup Servicing Default shall have
occurred and shall not have been cured or waived,
the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and shall use
the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs;
provided, however, that if the Trustee shall assume
the duties of a Backup Servicer pursuant to Section
10.02, the Trustee shall perform such duties in
accordance with Section 4.06. If the Trustee is
uncertain with respect to performing its duties or if
a conflict arises regarding the Trustee's rights,
duties and obligations, the Trustee may petition a
court of competent jurisdiction for written direction
or to interplead necessary parties. Notwithstanding
anything in this Agreement to the contrary, neither
the Trustee nor the Backup Servicer shall have any
authority to perform any act which would cause the
Trust to be characterized as an association taxable
as a corporation for federal income tax purposes.
The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports,
documents, orders or other instruments furnished to
the Trustee that shall be specifically required to be
furnished pursuant to any provision of this
Agreement, shall examine them to determine
whether they conform as to form to the
requirements of this Agreement; provided,
however, in the absence of bad faith on its part, the
Trustee can assume the truth and accuracy of the
statements made therein and the genuineness of the
signatures thereon.
The Trustee shall take and maintain custody
of the Schedule of Receivables included as an
exhibit to this Agreement and shall retain all
Monthly Servicing Certificates identifying
Receivables that become Purchased Receivables and
Liquidated Receivables.
The Trustee shall give written notice to the
Certificateholders, the Seller and Aegis Finance of
the occurrence, to its actual knowledge, which
notice shall be given within three (3) Business
Days' of the Trustee's receipt of actual knowledge
thereof, of any waiver of or any action taken to
cure (i) any default, breach, violation or event
permitting acceleration under the terms of any
Receivable; (ii) any continuing condition that with
notice or the lapse of time would constitute a
default, breach, violation or event permitting
acceleration under the terms of any Receivable; (iii)
any default or delinquency under the terms of any
Receivable that remained uncured for more than
thirty (30) days after notice to the Seller; or (iv)
any event which constitutes or with notice or the
lapse of time would constitute an Event of Backup
Servicing Default or Event of Servicing Default.
The Trustee shall give written notice to each
Certificateholder promptly upon receipt of a notice
from the Backup Servicer pursuant to Section 4.02
hereof or from the Servicer pursuant to paragraph
IV.F.1 of the Servicing Agreement or the Seller
pursuant to Section 8.06(g) hereof of an event
which with the giving of notice or the lapse of time,
or both, would constitute an Event of Backup
Servicing Default or an Event of Servicing Default.
No provision of this Agreement shall be
construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to
act or its own bad faith; provided, however, that:
(a) Prior to the occurrence of an
Event of Backup Servicing Default, and
after the curing or waiving of all such
Events of Backup Servicing Default that
may have occurred, the duties and
obligations of the Trustee shall be
determined solely by the express provisions
of this Agreement, the Trustee shall not be
liable except for the performance of such
duties and obligations as shall be specifically
set forth in this Agreement, no implied
covenants or obligations shall be read into
this Agreement against the Trustee and, in
the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely
on the truth of the statements and the
correctness of the opinions expressed upon
any certificates or opinions furnished to the
Trustee and conforming as to form to the
requirements of this Agreement;
(b) The Trustee shall not be liable
for an error of judgment made in good faith
by a Trustee Officer, unless it shall be
proved that the Trustee shall have been
negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be liable
with respect to any action taken, suffered or
omitted to be taken in good faith in
accordance with this Agreement or at the
direction of the Holders of Certificates
evidencing not less than 20% of the Voting
Interests thereof relating to the time, method
and place of conducting any proceeding for
any remedy available to the Trustee, or
exercising any trust or power conferred
upon the Trustee, under this Agreement;
(d) The Trustee shall not be
charged with knowledge of any failure by
the Backup Servicer (so long as the Trustee
is not the Backup Servicer) or the Servicer
to comply with the obligations, covenants or
representations or warranties of the Backup
Servicer or the Servicer under this
Agreement or the Servicing Agreement, as
the case may be, or of any failure by the
Seller to comply with the obligations,
covenants or representations or warranties of
the Seller under this Agreement, unless a
Trustee Officer assigned to the Trustee's
Corporate Trust Department obtains actual
knowledge of such failure (it being
understood that, so long as the Trustee is
not the Backup Servicer, knowledge of the
Backup Servicer is not attributable to the
Trustee) or the Trustee receives written
notice of such failure from the Backup
Servicer, Servicer or the Seller, as the case
may be, or any Holder of Certificates; and
(e) Without limiting the generality
of this Section or Section 11.04, the Trustee
(except if also serving as the Backup
Servicer and the duties of the Backup
Servicer require such) shall have no duty (i)
to see to any recording, filing or depositing
of this Agreement or any agreement referred
to therein or any financing statement or
continuation statement evidencing a security
interest in the Receivables or the Financed
Vehicles, or to see to the maintenance of
any such recording or filing or depositing or
to any rerecording, refiling or redepositing
of any thereof, (ii) to see to any insurance
of the Financed Vehicles or Obligors or to
effect or maintain any such insurance, (iii)
to see to the payment or discharge of any
tax, assessment or other governmental
charge or any Lien or encumbrance of any
kind owing with respect to, assessed or
levied against, any part of the Trust, (iv) to
confirm or verify the contents of any reports
or certificates of the Servicer delivered to
the Trustee pursuant to this Agreement or
the Servicing Agreement believed by the
Trustee to be genuine and to have been
signed or presented by the proper party or
parties or (v) to inspect the Financed
Vehicles at any time or ascertain or inquire
as to the performance or observance of any
of the Seller's or the Servicer's
representations, warranties or covenants or
the Servicer's duties and obligations as
Servicer under this Agreement and the
Servicing Agreement.
The Trustee shall not be required to expend
or risk its own funds or otherwise incur financial
liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or
powers, if it believes in its sole discretion that the
repayment of such funds or adequate indemnity
against such risk or liability shall not be reasonably
assured to it, and none of the provisions contained
in this Agreement or the Servicing Agreement shall
in any event require the Trustee to perform, or be
responsible for the manner of performance of, any
of the obligations of the Servicer, the Backup
Servicer or a Servicer under this Agreement or the
Servicing Agreement, as the case may be.
Section 11.02. Trustee's Certificate. On or
as soon as practicable after each Distribution Date
on which Receivables shall be assigned to the Seller
pursuant to Section 3.02, the Trustee shall execute
a Trustee's Certificate (in the form of Exhibit R),
based on the information contained in the Monthly
Servicing Certificate for the related Collection
Period, amounts deposited to the Certificate
Account and notices received pursuant to this
Agreement, identifying the Receivables repurchased
by the Seller pursuant to Section 3.02 during such
Collection Period, and shall deliver such Trustee's
Certificate, accompanied by a copy of the Monthly
Servicing Certificate for such Collection Period to
the Seller. The Trustee's Certificate submitted with
respect to such Distribution Date shall operate, as
of such Distribution Date, as an assignment,
without recourse, representation or warranty, to the
Seller, of all the Trustee's right, title and interest in
and to such repurchased Receivable, and all security
and documents relating thereto, such assignment
being an assignment outright and not for security.
Section 11.03. [Reserved]
Section 11.04. Certain Matters Affecting
Trustee. Except as otherwise provided in Section
11.01:
(a) The Trustee may rely and
shall be protected in acting or refraining
from acting upon any resolution, Officer's
Certificate, Monthly Servicing Certificate,
certificate of auditors or any other
certificate, statement, instrument, opinion,
report, notice, request, consent, order,
appraisal, bond or other paper or document
believed by it to be genuine and to have
been signed or presented by the proper party
or parties.
(b) The Trustee may consult with
counsel and any written Opinion of Counsel
shall be full and complete authorization and
protection in respect of any action taken or
suffered or omitted by it under this
Agreement in good faith and in accordance
with such written Opinion of Counsel.
(c) The Trustee shall be under no
obligation to exercise any of the rights or
powers vested in it by this Agreement, or to
institute, conduct or defend any litigation
under this Agreement or in relation to this
Agreement, at the request, order or direction
of any of the Certificateholders pursuant to
the provisions of this Agreement, unless
such Certificateholders shall have offered to
the Trustee security or indemnity,
reasonably satisfactory to the Trustee,
against the costs, expenses and liabilities
that may be incurred therein or thereby.
(d) The Trustee shall not be liable
for any action taken, suffered or omitted by
it in good faith and believed by it to be
authorized or within the discretion or rights
or powers conferred upon it by this
Agreement.
(e) Except as expressly provided
herein, the Trustee shall not be bound to
make any investigation into the facts of
matters stated in any resolution, certificate,
statement, instrument, opinion, report,
notice, request, consent, order, approval,
bond or other paper or document, unless
requested in writing so to do by Holders of
Certificates evidencing not less than 20% of
the Voting Interests thereof; provided,
however, that the Trustee may require
reasonable indemnity against any cost,
expense or liability as a condition to so
proceeding at the direction of the
Certificateholders.
(f) Subject to the limitations
herein, the Trustee may execute any of the
trusts or powers hereunder or perform any
duties under this Agreement either directly
or by or through agents or attorneys or a
custodian. The Trustee shall not be
responsible for any misconduct or
negligence of any such agent or custodian
appointed with due care by it hereunder or
of the Servicer in its capacity as Servicer.
The Trustee may act upon the opinion or
advice of accountants, engineers or such
other professionals as the Trustee deems
necessary and selected by it in the exercise
of reasonable care, and the Trustee may pay
reasonable compensation and shall be
entitled to reimbursement hereunder for such
compensation paid to such professionals,
which fee shall be considered an expense of
the Trustee to be paid pursuant to
Section 5.06(d)(i).
(g) Subsequent to the sale of the
Receivables by the Seller to the Trust, the
Trustee shall have no duty of independent
inquiry, and the Trustee may rely upon the
representations and warranties and covenants
of the Seller and the Servicer contained in
this Agreement and the Servicing Agreement
with respect to the Receivables.
Section 11.05. Trustee Not Liable for
Certificates or Receivables. The recitals contained
herein and in the Certificates (other than the
certificate of authentication on the Certificates) shall
be taken as the statements of the Seller, and the
Trustee assumes no responsibility for the
correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of
this Agreement, the Trust Property or of the
Certificates (other than the certificate of
authentication on the Certificates), or of any
Receivable or related document or the validity,
genuineness or originality of any document
delivered to the Trustee in its capacity as
Custodian. The Trustee shall at no time have any
responsibility or liability for or with respect to the
legality, validity and enforceability of any security
interest in any Financed Vehicle or any Receivable,
or the perfection and priority of such a security
interest or the maintenance of any such perfection
and priority, or for or with respect to the efficacy
of the Trust or its ability to generate the payments
to be distributed to Certificateholders under this
Agreement, including, without limitation: the
existence, condition, location and ownership of any
Financed Vehicle; the review of any Servicer File
or Custodian File therefor; the existence and
enforceability of any physical damage insurance
thereon; the existence and contents of any
Receivable or any Servicer File or Custodian File
or any computer or other record thereof; the
validity of the assignment of any Receivable to the
Trust or of any intervening assignment; the
completeness of any Receivable or any Servicer File
or Custodian File; the performance or enforcement
of any Receivable; the compliance by the Seller or
the Servicer, with any warranty or representation
made under this Agreement or the Servicing
Agreement or in any related document and the
accuracy of any such warranty or representation
prior to the Trustee's receipt of notice or other
discovery of any noncompliance therewith or any
breach thereof (provided, however, that the receipt
of notice or other discovery of such noncompliance
or breach shall only obligate the Trustee to comply
with the terms of Section 3.02 hereof); any
investment of moneys by the Trustee or any loss
resulting therefrom (it being understood that the
Trustee shall remain responsible for any Trust
property that it may hold); the acts or omissions of
the Seller, the Servicer or any Obligor; an action of
the Servicer taken in the name of the Trustee; or
any action by the Trustee taken at the instruction of
the Servicer; provided, however, that the foregoing
shall not relieve the Trustee of its obligation to
perform its duties under this Agreement. Except if
caused by its negligence or its failure to act in
accordance with reasonable and proper instructions
given in writing received by the Trustee, the
Trustee shall not be liable for losses on investments
on the funds or on the accounts established pursuant
to Section 5.01. The Trustee shall not be liable for
collections received by the Servicer prior to deposit
by the Servicer of such collections into the
Collection Account or for the application or
misapplication of funds, or for other acts or
defaults, by any person, firm or corporation except
its own directors, officers, agents and employees.
Except with respect to a claim based on the
Trustee's negligence or willful misconduct, no
recourse shall be had for any claim based on any
provision of this Agreement, the Certificates or any
Receivable or assignment thereof against the
Trustee in its individual capacity, the Trustee shall
not have any personal obligation, liability or duty
whatsoever to any Certificateholder or any other
Person with respect to any such claim, and any such
claim shall be asserted solely against the Trust or
any indemnitor who shall furnish indemnity as
provided in this Agreement. The Trustee shall not
be accountable for the use or application by the
Seller of any of the Certificates or of the proceeds
of such Certificates, or for the use or application of
any funds paid to a Servicer in respect of the
Receivables.
Section 11.06. Trustee May Own
Certificates. The Trustee in its individual or any
other capacity may become the owner or pledgee of
Certificates and may deal with the Seller and the
Servicer in banking transactions with the same
rights as it would have if it were not Trustee,
except as otherwise provided in the definition of
"Certificateholder" in Section 1.01.
Section 11.07. Trustee's Fees and
Expenses. The Trustee shall be entitled to the
Trustee Fees as compensation (which shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trusts
created by this Agreement and in the exercise and
performance of any of the Trustee's powers and
duties under this Agreement. The Trustee shall be
paid or reimbursed pursuant to Section 5.06 upon
its request for all reasonable expenses and
disbursements (including the reasonable
compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its
employ) incurred or made by the Trustee in
accordance with any provisions of this Agreement,
except any such expense or disbursement as may be
attributable to its willful misfeasance, negligence or
bad faith. Unpaid fees and expenses of the Trustee
shall bear interest at the prime rate then in effect
plus 2%. The Seller shall indemnify the Trustee
for, and hold it harmless against, any loss, liability
or expense incurred without willful misfeasance,
negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration
of the Trust, including the costs and expenses of
defending itself against any claim or liability in
connection with the exercise or performance of any
of its powers or duties under this Agreement.
Additionally, the Seller, pursuant to Section 8.02,
shall indemnify the Trustee with respect to certain
matters. The Trustee shall not be required to
furnish any surety bond. The provisions of this
Section 11.07 shall survive the termination of this
Agreement.
Section 11.08. Eligibility Requirements for
Trustee. The Trustee shall at all times be a
corporation having an office in the same state as the
location of the Corporate Trust Office as specified
in or pursuant to this Agreement; and organized and
doing business under the laws of such state or the
United States of America; authorized under such
laws to exercise corporate trust powers; having a
combined capital and surplus of at least
$100,000,000 and subject to supervision or
examination by federal or state authorities. If such
corporation shall publish reports of condition at
least annually, pursuant to law or to the
requirements of the aforesaid supervising or
examining authority, then for the purpose of this
Section 11.08, the combined capital and surplus of
such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent
report of condition so published. In case at any
time the Trustee shall cease to be eligible in
accordance with the provisions of this Section
11.08, the Trustee shall resign immediately in the
manner and with the effect specified in Section
11.09.
Section 11.09. Resignation or Removal of
Trustee. The Trustee may at any time resign and
be discharged from the trusts hereby created by
giving written notice thereof to the Seller and each
Certificateholder. Upon receiving such notice of
resignation, the Majority Certificateholders shall
promptly appoint a successor Trustee by written
instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed
and have accepted appointment within 30 days after
the giving of such notice of resignation, the
resigning Trustee may petition any court of
competent jurisdiction for the appointment of a
successor Trustee.
If at any time the Trustee shall cease to be
eligible in accordance with the provisions of Section
11.08 and shall fail to resign after written request
therefor by the Seller, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the
Majority Certificateholders may remove the
Trustee. If the Majority Certificateholders shall
remove the Trustee under the authority of the
immediately preceding sentence, the Majority
Certificateholders shall promptly appoint a
successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be
delivered to the outgoing Trustee so removed and
one copy to the successor Trustee and payment of
all fees and expenses owed to the outgoing Trustee.
Any resignation or removal of the Trustee
and appointment of a successor Trustee pursuant to
any of the provisions of this Section 11.09 shall not
become effective until acceptance of appointment by
the successor Trustee pursuant to Section 11.10 and
payment of all fees and expenses owed to the
outgoing Trustee or upon order of a court of
competent jurisdiction.
Section 11.10. Successor Trustee. Any
successor Trustee appointed pursuant to Section
11.09 shall execute, acknowledge and deliver to the
Backup Servicer, the Servicer and to the
predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon
the resignation or removal of the predecessor
Trustee shall become effective and such successor
Trustee, without any further act, deed or
conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its
predecessor under this Agreement, with like effect
as if originally named as Trustee. The predecessor
Trustee shall upon payment of its fees and expenses
deliver to the successor Trustee all documents and
statements and moneys held by it under this
Agreement; and the Seller and the predecessor
Trustee shall execute and deliver such instruments
and do such other things as may reasonably be
required for fully and certainly vesting and
confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept
appointment as provided in this Section 11.10
unless at the time of such acceptance such successor
Trustee shall be eligible pursuant to Section 11.08.
Upon acceptance of appointment by a
successor Trustee pursuant to this Section 11.10,
the successor Trustee shall mail notice of the
successor of such Trustee under this Agreement to
all Holders of Certificates at their addresses as
shown in the Certificate Register.
Section 11.11. Merger or Consolidation of
Trustee. Any corporation into which the Trustee
may be merged or converted or with which it may
be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation
shall be eligible pursuant to Section 11.08, without
the execution or filing of any instrument or any
further act on the part of any of the parties hereto;
provided, further, that the Trustee shall mail notice
of such merger or consolidation to each
Certificateholder.
Section 11.12. Appointment of Co-Trustee
or Separate Trustee. Notwithstanding any other
provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust or any
Financed Vehicle may at the time be located, the
Backup Servicer and the Trustee acting jointly shall
have the power and shall execute and deliver all
instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee, jointly
with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest
in such Person, in such capacity and for the benefit
of the Certificateholders, such title to the Trust, or
any part thereof, and, subject to the other
provisions of this Section 11.12, such powers,
duties, obligations, rights and trusts as the Backup
Servicer and the Trustee may consider necessary or
desirable. If the Backup Servicer shall not have
joined in such appointment within 15 days after the
receipt by it of a request so to do, or in the case an
Event of Backup Servicing Default shall have
occurred and be continuing, the Trustee alone shall
have the power to make such appointment. No
co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as
a successor trustee pursuant to Section 11.08 and no
notice of a successor trustee pursuant to Section
11.10 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee
shall be required pursuant to Section 11.10.
Each separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act
subject to the following provisions and conditions:
(a) All rights, powers, duties and
obligations conferred or imposed upon the
Trustee shall be conferred upon and
exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it
being understood that such separate trustee
or co-trustee is not authorized to act
separately without the Trustee joining in
such act), except to the extent that under any
law of any jurisdiction in which any
particular act or acts are to be performed
(whether as Trustee under this Agreement or
as successor to the Backup Servicer under
this Agreement), the Trustee shall be
incompetent or unqualified to perform such
act or acts, in which event such rights,
powers, duties and obligations (including the
holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be
exercised and performed singly by such
separate trustee or co-trustee, but solely at
the direction of the Trustee;
(b) No trustee under this
Agreement shall be personally liable by
reason of any act or omission of any other
trustee under this Agreement; and
(c) The Backup Servicer and the
Trustee acting jointly may at any time
accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to
the Trustee shall be deemed to have been given to
each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every
instrument appointing any separate trustee or
co-trustee shall refer to this Agreement and the
conditions of this Article XI. Each separate trustee
and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or
property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of
this Agreement, specifically including every
provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection
to, the Trustee. Each such instrument shall be filed
with the Trustee and copies thereof given to the
Backup Servicer.
Any separate trustee or co-trustee may at
any time appoint the Trustee, its agent or
attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf
and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by
law, without the appointment of a new or successor
separate trustee or co-trustee.
Section 11.13. Representations and
Warranties of Trustee. The Trustee makes the
following representations and warranties on which
the Seller and Certificateholders rely:
(a) The Trustee is a banking
association duly organized, validly existing,
and in good standing under the laws of its
place of incorporation.
(b) The Trustee has full corporate
power, authority and legal right to execute,
deliver and perform its obligations under
this Agreement and the Servicing
Agreement, and shall have taken all
necessary action to authorize the execution,
delivery and performance by it of this
Agreement and the Servicing Agreement.
(c) This Agreement and the
Servicing Agreement shall have been duly
executed and delivered by the Trustee, and
each constitutes the valid and binding
obligation of the Trustee enforceable in
accordance with its terms.
(d) The execution, delivery and
performance by the Trustee of this
Agreement (a) does not violate any
provision of any law governing the banking
and trust powers of the Trustee or any
order, writ, judgment or decree of any
court, arbitrator, or governmental authority
applicable to the Trustee or any of its assets,
(b) does not violate any provision of the
corporate charter or by-laws of the Trustee,
and (c) does not violate any provision of, or
constitute, with or without notice or lapse of
time, a default under, or result in the
creation or imposition of any lien on any
properties included in the Trust pursuant to
the provisions of any mortgage, indenture,
contract, agreement or other undertaking to
which it is a party, which violation, default
or lien could reasonably be expected to
materially and adversely affect the Trustee's
performance or ability to perform its duties
under this Agreement or the transactions
contemplated in this Agreement.
(e) The execution, delivery and
performance by the Trustee of this
Agreement does not require the
authorization, consent, or approval of, the
giving of notice to, the filing or registration
with, or the taking of any other action in
respect of, any governmental authority or
agency regulating the banking and corporate
trust activities of the Trustee.
Section 11.14. No Bankruptcy Petition.
Except with the consent of the Majority
Certificateholders, the Trustee covenants and agrees
that prior to the date which is one year and one day
after the payment in full of all securities issued by
the Seller or by the Trust it will not institute
against, or join any other Person in instituting
against, the Seller any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state
bankruptcy or similar law; provided, however, that
nothing contained herein shall prohibit the Trustee
from participating in any existing bankruptcy
proceeding.
ARTICLE XII
TERMINATION
Section 12.01. Termination of the Trust.
(a) The Trust and the respective
obligations of the Seller, the Backup
Servicer and the Trustee created by this
Agreement (except such obligations as are
hereinafter set forth) shall terminate upon
the earliest of (i) payment to the
Certificateholders of all amounts required to
be paid to them pursuant to this Agreement
and the disposition of all property held as
part of the Trust Property, (ii) the purchase
as of any Distribution Date by the Seller, at
its option, of the corpus of the Trust as
described in Section 12.02 or (iii) the Final
Scheduled Distribution Date. The Seller
shall promptly notify the Trustee of any
prospective termination pursuant to this
Section 12.01.
(b) Notice of any prospective
termination, specifying the Distribution Date
for payment of the final distribution and
requesting the surrender of the Certificates
for cancellation, shall be given promptly by
the Trustee by letter to Certificateholders
mailed not earlier than the 15th day and not
later than the 25th day of the month next
preceding the specified Distribution Date
stating (A) the Distribution Date upon which
final payment of the Certificates shall be
made and (B) the amount of any such final
payment. Surrender of the Certificates shall
not be a condition of payment of the final
distribution; however, each
Certificateholder, by accepting the
Certificates, hereby agrees to indemnify and
hold harmless the Trustee, the Seller and the
Certificate Registrar from and against any
and all claims arising from such failure,
including but not limited to claims by third
parties claiming to be bona fide purchasers
subsequently presenting such Certificates for
payment.
(c) Upon receipt by the Trustee
from the Seller of notice of any prospective
termination of the Trust pursuant to Section
12.01(a), the Trustee shall, subject to the
direction of the Majority Certificateholders
(provided that, if the Majority
Certificateholders shall not have provided
such direction to the Trustee within 30 days
of the Trustee having sent a written request
for such direction to the Certificateholders,
the Trustee shall proceed without such
direction) sell the remaining assets of the
Trust, if any, at public or private sale, in a
commercially reasonable manner and on
commercially reasonable terms. The Seller
agrees to cooperate with the Trustee to
effect any such sale, including by executing
such instruments of conveyance or
assignment as shall be necessary or required
by the purchaser. Proceeds of sale, net of
expenses, shall be treated as collections on
the assets of the Trust and shall be deposited
into the Collection Account. On the
Distribution Date specified for final
payment, the Trustee shall cause to be
distributed to Certificateholders and the
Seller amounts distributable on such
Distribution Date pursuant to Section 5.06
and Section 5.07.
Section 12.02. Optional Purchase of All
Receivables. The Seller shall have the option (and
shall have a similar option with respect to each trust
created pursuant to the Master Trust Agreement) to
purchase the corpus of the Trust on the Distribution
Date following the last day of any Collection Period
as of which the Pool Balance as a percentage of the
Original Pool Balance shall be less than or equal to
the Optional Purchase Percentage. To exercise such
option, the Seller shall (i) give notice to the Trustee
and the Certificateholders not less than 30 days
prior to the Distribution Date on which such
purchase is to be effected and (ii) on or before such
Distribution Date, deposit in the Collection Account
an amount equal to the Purchase Amount for the
Receivables and the appraisal value of any other
property held by the Trust. After payment of such
amounts, the Seller shall succeed to all interests in
and to the Trust Property.
Section 12.03. Notice. The Trustee shall
give notice of termination of the Trust to the Seller.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment. (a) This
Agreement may be amended by written instrument
executed by the Seller, the Backup Servicer and the
Trustee, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, to
correct or supplement any provisions in this
Agreement, (ii) to add, change or eliminate any
other provisions with respect to matters or questions
arising under this Agreement that shall not be
inconsistent with the provisions of this Agreement;
or (iii) to add or amend any provision therein in
connection with permitting transfers of the
Certificates or to add or provide for any credit
enhancement for the Certificates; provided,
however, that any such action described in clause
(ii) shall not adversely affect the interests of the
Certificateholders.
(b) This Agreement may also be amended
from time to time or the provisions hereof waived
from time to time by a written instrument executed
by the Seller, the Backup Servicer and the Trustee
with the consent of the Holders of the
Certificateholders affected thereby (which consent
of any Holder of a Certificate given pursuant to this
Section or pursuant to any other provision of the
Agreement shall be conclusive and binding on such
Holder and on all future Holders of such Certificate
and of any Certificate issued upon the transfer
thereof or in exchange thereof or in lieu thereof
whether or not notation of such consent is made
upon the Certificate) evidencing not less than 51%
of the Voting Interests of each Class of the affected
Certificates for the purpose of adding any
provisions to or changing in any manner or
eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of any
Class of Certificateholders; provided, however, that
no such amendment or waiver shall, without the
consent of the Holders of all Certificates affected
thereby then outstanding, (a) increase or reduce in
any manner the amount of, or accelerate or delay
the timing of, collections of payments on
Receivables or distributions that shall be required to
be made on any Certificate or (b) reduce the
aforesaid percentage of the Voting Interests of the
Certificates required to consent to any such
amendment.
(c) Any amendment which affects the
Trustee's own rights, duties or immunities under
the Agreement or otherwise shall not be effective to
such extent unless the Trustee shall have joined
thereto.
(d) Promptly after the execution of any such
amendment or consent, the Trustee shall furnish a
copy of such amendment or consent to each
Certificateholder. It shall not be necessary for the
consent of Certificateholders pursuant to this
Section 13.01 to approve the particular form of any
proposed amendment or consent, but it shall be
sufficient if such consent shall approve the
substance thereof. The manner of obtaining such
consents (and any other consents of
Certificateholders provided for in this Agreement)
and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such
reasonable requirements as the Trustee may
prescribe.
(e) Prior to the execution of any amendment
to this Agreement, the Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized
or permitted by this Agreement and does not
conflict with the amendment provisions of the
Master Trust Agreement.
Section 13.02. Protection of Title to Trust.
(a) The Seller shall execute and
file such financing statements and cause to
be executed and filed such continuation
statements, all in such manner and in such
places as may be required by law fully to
preserve, maintain and protect the interest of
the Certificateholders and the Trustee in the
Receivables and the other assets of the Trust
Property and in the proceeds thereof. The
Seller shall deliver (or cause to be delivered)
to the Trustee file-stamped copies of, or
filing receipts for, any document filed as
provided above, as soon as available
following such filing.
(b) The Seller shall not change its
name, identity or corporate structure in any
manner that would, could or might make
any financing statement or continuation
statement filed in accordance with paragraph
(a) above seriously misleading within the
meaning of 9-402(7) of the UCC, unless it
shall have given the Trustee at least thirty
(30) days' prior written notice thereof and
shall have promptly filed appropriate
amendments to all previously filed financing
statements or continuation statements.
(c) The Seller shall give the
Trustee at least 30 days' prior written notice
of any relocation of its chief executive
office. If, as a result of such relocation, the
applicable provisions of the UCC would
require the filing of any amendment of any
previously filed financing or continuation
statement or of any new financing statement,
it shall promptly file any such amendment
and shall give the amendment with the
recorder's file stamp thereon to the
Custodian promptly upon receipt thereof.
Section 13.03. Limitation on Rights of
Certificateholders. The death or incapacity of any
Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or
commence any proceeding in any court for a
partition or winding up of the Trust, nor otherwise
affect the rights, obligations and liabilities of the
parties to this Agreement or any of them.
Nothing in this Agreement set forth, or
contained in the terms of the Certificates, shall be
construed so as to constitute the Certificateholders
from time to time as partners or members of an
association; nor shall any Certificateholder be under
any liability to any third Person by reason of any
action taken pursuant to any provision of this
Agreement.
No Certificateholder shall have any right by
virtue or by availing itself of any provisions of this
Agreement to institute any suit, action or
proceeding in equity or at law upon or under or
with respect to this Agreement, unless such Holder
previously shall have given to the Trustee a written
notice of default and of the continuance thereof, and
unless also the Holders of Certificates evidencing
not less than 20% of the Voting Interests thereof
shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own
name as Trustee under this Agreement and shall
have offered to the Trustee such reasonable
indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 30 days after its
receipt of such notice, request and offer of
indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and
during such 30-day period no request or waiver
inconsistent with such written request has been
given to the Trustee pursuant to this Section or
Section 10.04; no one or more Holders shall have
any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the
rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority
over or preference to any other such Holder, or to
enforce any right under this Agreement except in
the manner provided in this Agreement and for the
equal, ratable and common benefit of all
Certificateholders. For the protection and
enforcement of the provisions of this Section 13.03,
each Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law
or in equity.
Section 13.04. Governing Law. THIS
AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS INCLUDING SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAWS
BUT OTHERWISE WITHOUT REGARD OR
REFERENCE TO PRINCIPLES OF CONFLICTS
OF LAWS OF SUCH STATE.
Section 13.05. Notices. All demands,
notices and communications upon or to the Seller,
the Backup Servicer or the Trustee under this
Agreement shall be in writing, personally delivered
or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly
given upon receipt:
(a) in the case of the Seller, to
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President
Aegis Auto Funding Corp. IV
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or at such other address as shall be
designated by the Seller in a written notice
to the Trustee;
(b) in the case of the Backup
Servicer, to
Norwest Bank Minnesota,
National Association
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Attention: Corporate Trust
Services Asset Backed
Administration
or at such other address as shall be
designated by the Backup Servicer in a
written notice to the Seller; and
(c) in the case of the Trustee or
Custodian, to
Norwest Bank Minnesota,
National Association
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Attention: Corporate Trust
Services Asset Backed Administration
or at such other address as shall be
designated by the Trustee in a written notice
to the Seller.
Any notice or other communication required
or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid,
at the address of such Holder as shown in the
Certificate Register (with copies thereof to such
other Person(s) as such Certificateholder shall have
requested in writing, the address of such other
Person(s) to receive such copies also to be reflected
in the Certificate Register), and shall be deemed to
have been given upon receipt.
Section 13.06. Severability of Provisions.
If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement
and shall in no way affect the validity or
enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the
Holders thereof.
Section 13.07. Assignment.
Notwithstanding anything to the contrary contained
herein, except as provided in Sections 8.03, this
Agreement may not be assigned by the Seller
without the prior written consent of the Trustee and
the Holders of Certificates evidencing not less than
66% of the Voting Interests thereof.
Section 13.08. Certificates Nonassessable
and Fully Paid. Certificateholders shall not be
personally liable for obligations of the Trust. The
interests represented by the Certificates shall be
nonassessable for any losses or expenses of the
Trust or for any reason whatsoever.
Section 13.09. Counterparts. This
Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts
shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same
instrument.
Section 13.10. Limited Recourse to Seller.
The parties hereto agree that the obligations of the
Seller hereunder, including, without limitation, the
obligation of the Seller in respect of indemnification
pursuant to Sections 3.06, 8.02 and 11.07 in respect
of repurchases or substitutions of Receivables upon
breach of representations and warranties pursuant to
Section 3.02, and in respect of fees, costs and
expenses pursuant to Sections 3.06, 4.04 and 4.05,
are payable solely from the Seller's interests in the
Trust Property and that no party may look to any
other property or assets of the Seller in respect of
such obligations.
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"),OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY
STATE IN THE UNITED STATES OR ANY
FOREIGN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS CERTIFICATE THE
HOLDER OF THIS CERTIFICATE IS DEEMED
TO REPRESENT TO THE SELLER AND THE
TRUSTEE (i) THAT IT IS AN INSTITUTIONAL
INVESTOR THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D
PROMULGATED UNDER THE SECURITIES
ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") AND THAT IT IS ACQUIRING
THIS CERTIFICATE FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN
ITS FIDUCIARY CAPACITY) FOR
INVESTMENT AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION
WITH, THE PUBLIC DISTRIBUTION HEREOF
OR (II) THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT
AND IS ACQUIRING SUCH CERTIFICATE FOR
ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL
BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF
THIS CERTIFICATE MAY BE MADE BY ANY
PERSON UNLESS EITHER (i) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS MADE TO
THE SELLER, (ii) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO AN
INSTITUTIONAL ACCREDITED INVESTOR
THAT EXECUTES A CERTIFICATE,
SUBSTANTIALLY IN THE FORM SPECIFIED
IN THE AGREEMENT, TO THE EFFECT THAT
IT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACTING FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN
ITS FIDUCIARY CAPACITY), (iii) SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO A PERSON
WHOM THE ISSUER REASONABLY BELIEVES
AFTER DUE INQUIRY IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A), ACTING FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT
FOR OTHERS (WHICH OTHERS ALSO ARE
QUALIFIED INSTITUTIONAL BUYERS) TO
WHOM NOTICE IS GIVEN THAT THE SALE,
PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (iv) SUCH
SALE, PLEDGE OR OTHER TRANSFER IS
OTHERWISE MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT,
IN WHICH CASE (A) THE TRUSTEE SHALL
REQUIRE THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE
TRANSFEREE CERTIFY TO THE TRUSTEE
AND THE SELLER IN WRITING THE FACTS
SURROUNDING SUCH TRANSFER, WHICH
CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE SELLER, AND (B) THE
TRUSTEE SHALL REQUIRE A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT
BE AT THE EXPENSE OF THE SELLER OR
THE TRUSTEE) SATISFACTORY TO THE
SELLER AND THE TRUSTEE TO THE EFFECT
THAT SUCH TRANSFER WILL NOT VIOLATE
THE SECURITIES ACT. NO SALE, PLEDGE OR
OTHER TRANSFER MAY BE MADE TO ANY
ONE PERSON FOR CERTIFICATES WITH A
FACE AMOUNT OF LESS THAN $1,000,000
AND, IN THE CASE OF ANY PERSON ACTING
ON BEHALF OF ONE OR MORE THIRD
PARTIES (OTHER THAN A BANK (AS
DEFINED IN SECTION 3(a)(2) OF THE
SECURITIES ACT) ACTING IN ITS FIDUCIARY
CAPACITY), FOR CERTIFICATES WITH A
FACE AMOUNT OF LESS THAN $1,000,000
FOR EACH SUCH THIRD PARTY.
AEGIS AUTO RECEIVABLES TRUST 199
AUTOMOBILE RECEIVABLE PASS THROUGH CERTIFICATES
CLASS A CERTIFICATE
[PPN:]
[CUSIP:]
NUMBER R-
Original Certificate Balance:
Class A Rate:
$_______________________
Final Scheduled Distribution Date:
Initial Class A Certificate Balance of all Class A
Certificates: $
THIS CERTIFIES THAT
___________________ is the registered owner of
this _________ DOLLARS Class A Certificate.
This Certificate evidences a fractional undivided
interest in the Aegis Auto Receivables Trust 199_-_
(the "Trust") (excluding the Residual Interest in the
Trust), formed by Aegis Auto Funding Corp. IV, a
Delaware corporation (the "Seller"). The Trust was
created pursuant to a Pooling and Servicing
Agreement dated as of _________________ (the
"Agreement") among the Seller, Norwest Bank
Minnesota, National Association, as backup servicer
(the "Backup Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the
"Trustee"). The property of the Trust includes,
among other assets, a pool of motor vehicle retail
installment sale contracts secured by new and used
automobiles and light-duty trucks. (This Class A
Certificate does not represent an interest in or
obligation of the Seller or any of the respective
Affiliates thereof, except to the extent described
below.) A summary of certain of the pertinent
provisions of the Agreement is set forth below. To
the extent not otherwise defined herein, the
capitalized terms used herein have the meanings
assigned to them in the Agreement. The Certificate
Balance of this Class A Certificate will be decreased
by the payments on this Class A Certificate in
respect of principal as described in the Agreement.
Accordingly, following the initial issuance of the
Class A Certificates, the Certificate Balance of this
Class A Certificate will over time be less than the
original denomination shown above. Anyone
acquiring this Class A Certificate may ascertain its
current Certificate Balance by inquiry of the
Trustee.
This Certificate is one of the duly authorized
Certificates designated as "Automobile Receivable
Pass-Through Certificates," issued in two Classes
(Class A and Class B collectively, the
"Certificates"). To the extent described in the
Agreement the Class B Certificates are subordinate
in payment to the Class A Certificates. This Class
A Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class A
Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. The
property of the Trust includes, without limitation,
a pool of motor vehicle retail installment sale
contracts (the "Receivables") acquired on the
Closing Date and on Funding Dates (both as defined
in the Agreement) secured by new and used
automobiles and light-duty trucks (the "Financed
Vehicles"), all moneys due thereunder after the
applicable Cutoff Dates (as defined in the
Agreement), proceeds from claims on certain
insurance policies and certain other rights under the
Agreement, all right, title and interest of the Seller
in and to the Purchase Agreement and any and all
proceeds of the foregoing.
This Class A Certificate does not purport to
summarize the Agreement and reference is made to
the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the
Agreement and all amendments thereto will be
provided to any Certificateholder, at its expense,
upon a written request to the Trustee.
Under the Agreement, there will be
distributed on the 20th day of each month or, if
such 20th day is not a Business Day, the next
Business Day (the "Distribution Date"),
commencing on _________________, to the person
in whose name this Class A Certificate is registered
at the close of business on the last day of the
Collection Period preceding a Distribution Date or
termination of the Trust (the "Record Date") an
amount equal to the product of the Percentage
Interest evidenced by this Certificate and the
amount, if any required to be distributed to the
holders of all Class A Certificates.
All payments to Certificateholders shall be
made on each Distribution Date to each
Certificateholder of record on the related Record
Date by check, or, if requested by a
Certificateholder holding Certificates with Original
Certificate Balances in aggregate in excess of
$1,000,000, by wire transfer to the account
designated in writing by such Holder in the form of
Exhibit G to the Agreement (or such other account
as such Certificateholder may designate in writing)
delivered to the Trustee prior to the Determination
Date, in immediately available funds. Except as
otherwise provided in the Agreement and
notwithstanding the above, the final distribution on
this Class A Certificate will be made after due
notice by the Trustee of the pendency of such
distribution, which notice shall request that the
Certificateholder present and surrender this Class A
Certificate at the office or agency maintained for
that purpose by the Trustee in Minneapolis,
Minnesota. Surrender of this Class A Certificate
shall not be a condition of payment of the final
distribution; however, the Holder, by accepting this
Class A Certificate, hereby agrees to indemnify and
hold harmless the Trustee, the Seller and the
Certificate Registrar from and against any and all
claims arising from such failure to present and
surrender this Class A Certificate, including but not
limited to claims by third parties claiming to be
bona fide purchasers.
Unless the certificate of authentication
hereon shall have been executed by an authorized
officer of the Trustee, by manual signature, this
Class A Certificate shall not entitle the Holder
hereof to any benefit under the Agreement or be
valid for any purpose.
The Class A Certificates do not represent a
recourse obligation of, or an interest in, the Seller,
the Backup Servicer, the Trustee or any Affiliate of
any of them. The Class A Certificates are limited
in right of payment to certain collections and
recoveries respecting the Receivables, all as more
specifically set forth in the Agreement. A copy of
the Agreement may be examined during normal
business hours at the principal office of the Seller,
and at such other places, if any, designated by the
Seller, by any Certificateholder upon request.
The Agreement permits, with certain
exceptions therein provided, the amendment thereof
and the modification of the rights and obligations of
the Seller and the rights of the Certificateholders
under the Agreement at any time by the Seller and
the Trustee with the consent of the Holders of the
Certificates affected thereby voting as a class
evidencing not less than 51% of the Voting Interests
of all affected Certificates. Any such consent by
the Holder of this Class A Certificate shall be
conclusive and binding on such Holder and on all
future Holders of this Class A Certificate and of
any Class A Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent is made
upon this Class A Certificate. The Agreement also
permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders
of any of the Class A Certificates.
As provided in the Agreement and subject to
certain limitations set forth therein, the transfer of
this Class A Certificate is registrable in the
Certificate Register upon surrender of this Class A
Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor
Certificate Registrar, in Minneapolis, Minnesota, or
such other office of the Trustee maintained for such
purpose and designated by the Trustee in writing,
accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Class A
Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Class A
Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be
issued to the designated transferee.
The Class A Certificates are initially issuable
only as registered Class A Certificates without
coupons in denominations of $1,000,000 and
integral multiples of $1,000 in excess thereof,
except that one Class A Certificate may be issued in
a different denomination. As provided in the
Agreement and subject to certain limitations set
forth therein, Class A Certificates are exchangeable
for new Class A Certificates evidencing the same
aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be
made to the Holder for any such registration of
transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or
governmental charges payable in connection
therewith.
The Trustee, the Certificate Registrar, and
any agent of the Trustee or the Certificate Registrar
may treat the person in whose name this Class A
Certificate is registered as the owner hereof for all
purposes, and neither the Trustee, the Certificate
Registrar, nor any such agent shall be affected by
any notice to the contrary.
The Trust created by the Agreement shall
terminate upon the earliest of (i) payment to the
Certificateholders of all amounts required to be paid
to them pursuant to the Agreement and the
disposition of all property held as part of the Trust
Property, (ii) the purchase as of any Distribution
Date by the Seller of the corpus of the Trust, as
described below, or (iii) the Final Scheduled
Distribution Date. The Seller may, at its option,
purchase the corpus of the Trust, in whole, at a
price specified in the Agreement, and such purchase
will effect early retirement of the Certificates;
however, such right of purchase is exercisable only
on a Distribution Date following the last day of any
Collection Period as of which the Pool Balance is
less than or equal to 10% of the Original Pool
Balance.
IN WITNESS WHEREOF, the Trustee, not
in its individual capacity but on behalf of the Trust,
has caused this Class A Certificate to be duly
executed.
AEGIS AUTO RECEIVABLES TRUST 199
By:
NORWEST BANK MINNESOTA,NATIONAL ASSOCIATION,
as Trustee
By
Name:
Title:
This is one of the Class A Certificates referred to
in the within-mentioned Agreement.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By
Name:
Title:
Dated as of
_________________, 199
ASSIGNMENT
FOR VALUE RECEIVED the undersigned
hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Class A Certificate, and all rights
thereunder, hereby irrevocably constituting and
appointing
Attorney
to transfer said Class A Certificate on the books of
the Certificate Registrar, with full power of
substitution in the premises.
Dated:
Name:
_______________
*NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Class A Certificate in every
particular, without alteration, enlargement or any
change whatever.
EXHIBIT A-2
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED
IN RIGHT OF PAYMENT AS DESCRIBED IN
THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"),OR UNDER THE
SECURITIES OR BLUE SKY LAWS OF ANY
STATE IN THE UNITED STATES OR ANY
FOREIGN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS CERTIFICATE THE
HOLDER OF THIS CERTIFICATE IS DEEMED
TO REPRESENT TO THE SELLER AND THE
TRUSTEE (i) THAT IT IS AN INSTITUTIONAL
INVESTOR THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D
PROMULGATED UNDER THE SECURITIES
ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") AND THAT IT IS ACQUIRING
THIS CERTIFICATE FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN
ITS FIDUCIARY CAPACITY) FOR
INVESTMENT AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION
WITH, THE PUBLIC DISTRIBUTION HEREOF
OR (II) THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT
AND IS ACQUIRING SUCH CERTIFICATE FOR
ITS OWN ACCOUNT (AND NOT FOR THE
ACCOUNT OF OTHERS) OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS
ALSO ARE QUALIFIED INSTITUTIONAL
BUYERS).
NO SALE, PLEDGE OR OTHER TRANSFER OF
THIS CERTIFICATE MAY BE MADE BY ANY
PERSON UNLESS EITHER (i) SUCH SALE,
PLEDGE OR OTHER TRANSFER IS MADE TO
THE SELLER, (ii) SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO AN
INSTITUTIONAL ACCREDITED INVESTOR
THAT EXECUTES A CERTIFICATE,
SUBSTANTIALLY IN THE FORM SPECIFIED
IN THE AGREEMENT, TO THE EFFECT THAT
IT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACTING FOR ITS OWN ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE
INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN
ITS FIDUCIARY CAPACITY), (iii) SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, SUCH SALE, PLEDGE OR
OTHER TRANSFER IS MADE TO A PERSON
WHOM THE ISSUER REASONABLY BELIEVES
AFTER DUE INQUIRY IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A), ACTING FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT
FOR OTHERS (WHICH OTHERS ALSO ARE
QUALIFIED INSTITUTIONAL BUYERS) TO
WHOM NOTICE IS GIVEN THAT THE SALE,
PLEDGE OR TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (iv) SUCH
SALE, PLEDGE OR OTHER TRANSFER IS
OTHERWISE MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT,
IN WHICH CASE (A) THE TRUSTEE SHALL
REQUIRE THAT BOTH THE PROSPECTIVE
TRANSFEROR AND THE PROSPECTIVE
TRANSFEREE CERTIFY TO THE TRUSTEE
AND THE SELLER IN WRITING THE FACTS
SURROUNDING SUCH TRANSFER, WHICH
CERTIFICATION SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE
TRUSTEE AND THE SELLER, AND (B) THE
TRUSTEE SHALL REQUIRE A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT
BE AT THE EXPENSE OF THE SELLER OR
THE TRUSTEE) SATISFACTORY TO THE
SELLER AND THE TRUSTEE TO THE EFFECT
THAT SUCH TRANSFER WILL NOT VIOLATE
THE SECURITIES ACT. NO SALE, PLEDGE OR
OTHER TRANSFER MAY BE MADE TO ANY
ONE PERSON FOR CERTIFICATES WITH A
FACE AMOUNT OF LESS THAN $1,000,000
AND, IN THE CASE OF ANY PERSON ACTING
ON BEHALF OF ONE OR MORE THIRD
PARTIES (OTHER THAN A BANK (AS
DEFINED IN SECTION 3(a)(2) OF THE
SECURITIES ACT) ACTING IN ITS FIDUCIARY
CAPACITY), FOR CERTIFICATES WITH A
FACE AMOUNT OF LESS THAN [$1,000,000]
FOR EACH SUCH THIRD PARTY.
THIS CERTIFICATE MAY NOT BE
PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED
("ERISA") OR A PLAN SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED ("SECTION 4975") (A
"PLAN") OR A PERSON THAT IS USING THE
ASSETS OF A PLAN TO ACQUIRE THIS
CERTIFICATE. ACCORDINGLY, TRANSFER
OF THIS CERTIFICATE IS SUBJECT TO
CERTAIN RESTRICTIONS SET FORTH IN THE
AGREEMENT.
AEGIS AUTO RECEIVABLES TRUST 199_-_
AUTOMOBILE RECEIVABLE PASS-
THROUGH CERTIFICATES
CLASS B CERTIFICATE
[PPN:]
[CUSIP:]
NUMBER R-
Original Certificate Balance:
Class B Rate:
$_______________________
Final Scheduled Distribution Date:
Initial Class B Certificate Balance of all Class B
Certificates: $
THIS CERTIFIES THAT
___________________ is the registered owner of
this _________ DOLLARS Class B Certificate.
This Certificate evidences a fractional undivided
interest in the Aegis Auto Receivables Trust 199_-_
(the "Trust") (excluding the Residual Interest in the
Trust), formed by Aegis Auto Funding Corp. IV, a
Delaware corporation (the "Seller"). The Trust was
created pursuant to a Pooling and Servicing
Agreement dated as of ________________ (the
"Agreement") among the Seller, Norwest Bank
Minnesota, National Association, as backup servicer
(the "Backup Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the
"Trustee"). The property of the Trust includes,
among other assets, a pool of motor vehicle retail
installment sale contracts secured by new and used
automobiles and light-duty trucks. (This Class B
Certificate does not represent an interest in or
obligation of the Seller or any of the respective
Affiliates thereof, except to the extent described
below.) A summary of certain of the pertinent
provisions of the Agreement is set forth below. To
the extent not otherwise defined herein, the
capitalized terms used herein have the meanings
assigned to them in the Agreement. The Certificate
Balance of this Class B Certificate will be decreased
by the payments on this Class B Certificate in
respect of principal as described in the Agreement.
Accordingly, following the initial issuance of the
Class B Certificates, the Certificate Balance of this
Class B Certificate will over time be less than the
original denomination shown above. Anyone
acquiring this Class B Certificate may ascertain its
current Certificate Balance by inquiry of the
Trustee.
This Certificate is one of the duly authorized
Certificates designated as "Automobile Receivable
Pass-Through Certificates", issued in two Classes
(Class A and Class B, collectively, the
"Certificates"). To the extent described in the
Agreement the Class B Certificates are subordinate
in payment to the Class A Certificates. This Class
B Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Class B
Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. The
property of the Trust includes, without limitation,
a pool of motor vehicle retail installment sale
contracts (the "Receivables") acquired on the
Closing Date and on Funding Dates (both as defined
in the Agreement) secured by new and used
automobiles and light-duty trucks (the "Financed
Vehicles"), all moneys due thereunder after the
applicable Cutoff Dates (as defined in the
Agreement), proceeds from claims on certain
insurance policies and certain other rights under the
Agreement, all right, title and interest of the Seller
in and to the Purchase Agreement and any and all
proceeds of the foregoing.
This Class B Certificate does not purport to
summarize the Agreement and reference is made to
the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the
Agreement and all amendments thereto will be
provided to any Certificateholder, at its expense,
upon a written request to the Trustee.
Under the Agreement, there will be
distributed on the 20th day of each month or, if
such 20th day is not a Business Day, the next
Business Day (the "Distribution Date"),
commencing on ________________, to the person
in whose name this Class B Certificate is registered
at the close of business on the last day of the
Collection Period preceding a Distribution Date or
termination of the Trust (the "Record Date") an
amount equal to the product of the Percentage
Interest evidenced by this Certificate and the
amount, if any required to be distributed to the
holders of all Class B Certificates.
All payments to Certificateholders shall be
made on each Distribution Date to each
Certificateholder of record on the related Record
Date by check, or, if requested by a
Certificateholder holding Certificates with Original
Certificate Balances in aggregate in excess of
$1,000,000, by wire transfer to the account
designated in writing by such Holder in the form of
Exhibit G to the Agreement (or such other account
as such Certificateholder may designate in writing)
delivered to the Trustee prior to the Determination
Date, in immediately available funds. Except as
otherwise provided in the Agreement and
notwithstanding the above, the final distribution on
this Class B Certificate will be made after due
notice by the Trustee of the pendency of such
distribution, which notice shall request that the
Certificateholder present and surrender this Class B
Certificate at the office or agency maintained for
that purpose by the Trustee in Minneapolis,
Minnesota. Surrender of this Class B Certificate
shall not be a condition of payment of the final
distribution; however, the Holder, by accepting this
Class B Certificate, hereby agrees to indemnify and
hold harmless the Trustee, the Seller and the
Certificate Registrar from and against any and all
claims arising from such failure to present and
surrender this Class B Certificate, including but not
limited to claims by third parties claiming to be
bona fide purchasers.
Unless the certificate of authentication
hereon shall have been executed by an authorized
officer of the Trustee, by manual signature, this
Class B Certificate shall not entitle the Holder
hereof to any benefit under the Agreement or be
valid for any purpose.
The Class B Certificates do not represent a
recourse obligation of, or an interest in, the Seller,
the Backup Servicer, the Trustee or any Affiliate of
any of them. The Class B Certificates are limited
in right of payment to certain collections and
recoveries respecting the Receivables, all as more
specifically set forth in the Agreement. A copy of
the Agreement may be examined during normal
business hours at the principal office of the Seller,
and at such other places, if any, designated by the
Seller, by any Certificateholder upon request.
The Agreement permits, with certain
exceptions therein provided, the amendment thereof
and the modification of the rights and obligations of
the Seller and the rights of the Certificateholders
under the Agreement at any time by the Seller and
the Trustee with the consent of the Holders of the
Certificates affected thereby voting as a class
evidencing not less than 51% of the Voting Interests
of all affected Certificates. Any such consent by
the Holder of this Class B Certificate shall be
conclusive and binding on such Holder and on all
future Holders of this Class B Certificate and of any
Class B Certificate issued upon the transfer hereof
or in exchange hereof or in lieu hereof whether or
not notation of such consent is made upon this Class
B Certificate. The Agreement also permits the
amendment thereof, in certain limited
circumstances, without the consent of the Holders
of any of the Class B Certificates.
As provided in the Agreement and subject to
certain limitations set forth therein, the transfer of
this Class B Certificate is registrable in the
Certificate Register upon surrender of this Class B
Certificate for registration of transfer at the offices
or agencies maintained by the Trustee in its capacity
as Certificate Registrar, or by any successor
Certificate Registrar, in Minneapolis, Minnesota, or
such other office of the Trustee maintained for such
purpose and designated by the Trustee in writing,
accompanied by a written instrument of transfer in
form satisfactory to the Trustee and the Class B
Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Class B
Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be
issued to the designated transferee.
The Class B Certificates are initially issuable
only as registered Class B Certificates without
coupons in denominations of $1,000,000 and
integral multiples of $1,000 in excess thereof,
except that one Class B Certificate may be issued in
a different denomination. As provided in the
Agreement and subject to certain limitations set
forth therein, Class B Certificates are exchangeable
for new Class B Certificates evidencing the same
aggregate denomination, as requested by the Holder
surrendering the same. No service charge will be
made to the Holder for any such registration of
transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or
governmental charges payable in connection
therewith.
The Trustee, the Certificate Registrar, and
any agent of the Trustee or the Certificate Registrar
may treat the person in whose name this Class B
Certificate is registered as the owner hereof for all
purposes, and neither the Trustee, the Certificate
Registrar, nor any such agent shall be affected by
any notice to the contrary.
The Trust created by the Agreement shall
terminate upon the earliest of (i) payment to the
Certificateholders of all amounts required to be paid
to them pursuant to the Agreement and the
disposition of all property held as part of the Trust
Property, (ii) the purchase as of any Distribution
Date by the Seller of the corpus of the Trust as
described below, or (iii) the Final Scheduled
Distribution Date. The Seller may, at its option,
purchase the corpus of the Trust, in whole, at a
price specified in the Agreement, and such purchase
will effect early retirement of the Certificates;
however, such right of purchase is exercisable only
on a Distribution Date following the last day of any
Collection Period as of which the Pool Balance is
less than or equal to 10% of the Original Pool
Balance.
IN WITNESS WHEREOF, the Trustee, not
in its individual capacity but on behalf of the Trust,
has caused this Class B Certificate to be duly
executed.
AEGIS AUTO RECEIVABLES TRUST 199_-_
By:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By
Name:
Title:
This is one of the Class B Certificates referred to
in the within-mentioned Agreement.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By
Name:
Title:
Dated as of
______, 199_
ASSIGNMENT
FOR VALUE RECEIVED the undersigned
hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Class B Certificate, and all rights
thereunder, hereby irrevocably constituting and
appointing
Attorney
to transfer said Class B Certificate on the books of
the Certificate Registrar, with full power of
substitution in the premises.
Dated:
*
Name:
_______________
*NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Class B Certificate in every
particular, without alteration, enlargement or any
change whatever.
EXHIBIT B
[RESERVED]
EXHIBIT C
TRUSTEE'S STATEMENT TO CERTIFICATEHOLDERS
Aegis Auto Funding Corp. IV
Aegis Auto Receivables Trust 199_-_
Automobile Receivable Pass-Through
Certificates
Distribution Date:
Last Day of Collection Period:
I. COLLECTIONS INTEREST PRINCIPAL
TOTALS
Scheduled Payments
Full & Partial Prepayments
Recoveries
Risk Default Insurance Proceeds
Receivable Repurchased by Seller
Miscellaneous Servicer Collections
Available Interest Distribution Amount
Available Principal Distribution Amount
Total Available Distribution Amount
Reinvestment Income on Collection Account
Withdrawals from
Reserve Fund
Total Amount Available
II. DISTRIBUTIONS
Backup Servicer Fee
Servicing Fee
Trustee and Custodian Fees
Allocation of Expenses by Class
Class A
Class B
Class A Interest Distribution
Class A Interest Carryover Shortfall
Class A Principal Distribution
Class A Principal Carryover Shortfall
Class B Interest Distribution
Class B Interest Carryover Shortfall
Class B Principal Distribution
Class B Principal Carryover Shortfall
Funding Account-Prepayment Distribution
Deposits to Reserve Fund
Releases to Seller from Reserve Fund
Total Funds Distributed
III. CLASS CERTIFICATE BALANCE
Original Class A Certificate Balance
Beginning Class A Certificate Balance
Ending Class A Certificate Balance
Class A Interest Carryover Shortfall
Class A Principal Carryover Shortfall
Class A Certificate Factor
Original Class B Certificate Balance
Beginning Class B Certificate Balance
Ending Class B Certificate Balance
Class B Interest Carryover Shortfall
Class B Principal Carryover Shortfall
Class B Certificate Factor
IV. POOL BALANCE INFORMATION
Original Pool Balance:
Beginning of Period
End of Period
Pool Balance
Pool Factor
Weighted Average Coupon (WAC)
Weighted Average Remaining Maturity (WAM) (in months)
Remaining Number of Receivables
V. RESERVE FUND
Amount
Beginning Balance
Plus: Deposits
Plus: Reinvestment Income
Withdrawals to Certificateholders
Class A
Class B
Withdrawals for expenses
[Withdrawals for other Series]
Released to Seller
Ending Balance
VI. RECEIVABLES REPURCHASED/SUBSTITUTED BY SELLER
Number of Receivables Repurchased
Principal Amount
Number of Receivables Substituted
Principal Amount
VII. DELINQUENCY INFORMATION*
# of Principal
% of
Contracts Balance
Pool Balance
30-59 Days Delinquent
60-89 days Delinquent
*Excluding Liquidated and Defaulted Receivables
VIII. REPOSSESSION INFORMATION Current Period
Inventory
Number of Receivables as to which Vehicles have been
Repossessed (and not yet liquidated)
Principal Balances of Receivables relating to Vehicles
which have been Repossessed (and not yet liquidated)
IX. LIQUIDATED AND DEFAULTED RECEIVABLES Current Period
Cumulative
Number of Liquidated Receivables
Principal Balances of Liquidated Receivables*
(Prior to Liquidation)
Number of Defaulted Receivables**
Principal Balances of Defaulted Receivables
Total Principal Balance of Liquidated
and Defaulted Receivables
* Excludes receivables previously characterized
as Defaulted Receivables
**Refers to Receivables that have become
90 days delinquent and are not Liquidated Receivables
X. RECOVERIES Current Period
Cumulative
Liquidation Proceeds
Rebate of Servicer Cancelled Warranty Contracts
VSI Physical Damage/Loss Insurance Proceeds
Consumer Insurance
Other
Total Recoveries
XI. RETENTION AMOUNT
Beginning Balance
Plus: (Additional Receivables)
Plus: Quarterly Reserve Loss Deficiency
Less: Claims approved
Less: Quarterly Reserve Loss Surplus
Ending Balance
XII. RISK DEFAULT INSURANCE PROCEEDS Current Period
Cumulative
Risk Default Insurance Proceeds
XIII. NET LOSSES Current Period
Cumulative
Principal Balance of Liquidated and
Defaulted Receivables
Less: Recoveries
Less: Risk Default Insurance Proceeds
Net Losses
XIV. INSURANCE CLAIMS
Current Period
Cumulative
Number of Risk Default Insurance Claims
Amount of Risk Default Insurance Claims
Number of VSI Physical Damage/Loss Insurance Claims
Amount of VSI Physical Damage/Loss Insurance Claims
Number of Risk Default Insurance Claims Rejected
Principal Balance of Receivables Rejected
XV. FUNDING ACCOUNT
Beginning Balance
Withdrawals (Additional Receivables)
Withdrawals (Reserve Fund)
Reinvestment Income Retained
Ending Balance
EXHIBIT D
[RESERVED]
EXHIBIT E
LOCATION OF SERVICER FILES
American Lenders Facilities, Inc.
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Systems and Services Technology, Inc.
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EXHIBIT F
[RESERVED]
EXHIBIT G
WIRING INSTRUCTIONS FORM
______________, 19____
Norwest Bank Minnesota, National Association
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Re: Aegis Auto Funding Corp. IV Automobile
Receivable Pass-Through Certificates
Class ___ Issued by Aegis Automobile
Receivables Trust 199_-_
Dear Sirs:
In connection with the sale of the above-captioned
Certificate by to
("Transferee") you, as Trustee with respect to the
related Certificates, are instructed to make all remittances to
Transferee as Certificateholder as of , 19 and you are
directed to send all notices to the appropriate party at the address
set forth on Schedule 1 hereto. You are further instructed to treat
the Transferee as the record holder for purposes of the
, 199__ Distribution Date.
[Transferee]
By
Title:
Acknowledged
[Seller]
By
Title:
EXHIBIT H
[RESERVED]
EXHIBIT I
RISK DEFAULT INSURANCE POLICIES
Issuer:
Policy Name:
Policy No.:
Date:
Named Insured:
Endorsements:
Issuer:
Policy Name:
Policy No:
Date:
Named Insured:
Endorsements:
EXHIBIT J
VSI INSURANCE POLICY
1. Issuer: Guaranty National Insurance Company
Policy Name: Lenders Comprehensive Single Interest Insurance
Policy
Policy No.: ZYG 1500103
Date: February 1, 1994
Named Insured: Aegis Capital Markets
Endorsements: 42621-0 (10/93), 42623-0 (10/93), 42624-0
(10/93),
42627-0 (10/93), 42629-0 (10/93), 42630-0
(10/93),
41510-0 (6/90), Nos. 7, 8, Coverage Endorsements
dated 3/23/94,
9/08/94 and 9/26/94, Nos. 16-24, 30-31
EXHIBIT K
FORM OF INVESTMENT/TRANSFEREE LETTER
(Rule 144A Transfer)
[Date]
Aegis Auto Funding Corp. IV
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Norwest Bank Minnesota, National Association
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Attention: Corporate Trust Services Asset Backed
Administration
Aegis Auto Funding Corp. IV
Aegis Auto Receivables Trust 199_-_
Automobile Receivable Pass-Through Certificates,
Class ___
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase
one or more Automobile Receivable Pass-Through Certificates,
Class ___ (the "Certificates") issued by Aegis Auto Receivables
Trust 199_-_ (the "Trust") pursuant to that certain Pooling and
Servicing Agreement dated as of _________________ (the
"Pooling and Servicing Agreement") by and among Aegis Auto
Funding Corp. IV, a Delaware corporation, as seller ("Seller"),
Norwest Bank Minnesota, National Association, as Backup
Servicer, and Norwest Bank Minnesota, National Association, as
Trustee. Unless the context or use indicates another or different
meaning, each capitalized term used herein and not otherwise
defined herein shall have the meaning ascribed to it in the Pooling
and Servicing Agreement.
1. The undersigned hereby certifies that, as indicated
below, the undersigned is the President, Chief Executive/Financial
Officer, Senior Vice President or other executive officer or
investment officer of the Purchaser.
2. In connection with the purchase by the Purchaser of
the Certificates, the undersigned hereby certifies to you that the
Purchaser is a "qualified institutional buyer" as defined in Rule
144A ("Rule 144A") promulgated under the Securities Act of
1933, as amended, because:
[ ] (a) The Purchaser owned or invested on a discretionary
basis $100 million in securities (except for the excluded
securities referred to below) as of the end of the
Purchaser's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and the
Purchaser satisfies the criteria in the subcategory marked
below (check one):
[ ] Insurance Company. The Purchaser is an insurance
company whose primary and predominant business
activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and
which is subject to supervision by the insurance
commissioner or a similar official or agency of a
State or territory or the District of Columbia.
[ ] Investment Company. The Purchaser is (i) an
investment company registered under the Investment
Company Act of 1940, as amended (the "Investment
Company Act") or (ii) a business development
company as defined in Section 2(a)(48) of that Act.
[ ] Small Business Investment Company. The
Purchaser is a Small Business Investment Company
licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
[ ] Corporation, Etc. The Purchaser is an organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended, a corporation
(other than a bank, savings and loan association or
similar institution), partnership or Massachusetts or
similar business trust.
[ ] State or Local Plan. The Purchaser is a plan
established and maintained by a State or its political
subdivisions, or any agency or instrumentality of a
State or its political subdivisions, for the benefit of
its employees.
[ ] ERISA Plan. The Purchaser is an employee benefit
plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
[ ] Trust Fund. The Purchaser is a trust fund whose
trustee is a bank or trust company and whose
participants are exclusively plans established and
maintained by a State or its political subdivision, or
any agency or instrumentality of a State or its
political subdivisions, for the benefit of its
employees.
[ ] Business Development Company. The Purchaser is
a business development company as defined in
Section 202(a)(22) of the Investment Adviser Act of
1940.
[ ] Investment Advisor. The Purchaser is an
investment advisor registered under the Investment
Advisers Act of 1940, as amended.
[ ] (b) The Purchaser is a dealer registered pursuant too
Section 15 of the Exchange Act, acting for its own account
or the accounts of other qualified institutional buyers, that
in the aggregate owns and invests on a discretionary basis
at least $10 million of securities of issuers that are not
affiliated with the dealer, provided that securities
constituting the whole or a part of an unsold allotment to
or subscription by a dealer as a participant in a public
offering shall not be deemed to be owned such dealer.
[ ] (c) The Purchaser is a dealer registered pursuant to
Section 15 of the Exchange Act acting in a riskless
principal transaction on behalf of a qualified institutional
buyer.
[ ] (d) The Purchaser is an investment company registered
under the Investment Company Act, acting for its own
account or for the accounts of other qualified institutional
buyers, that is part of a family of investment companies
which own in the aggregate at least $100 million in
securities of issuers other than issuers that are affiliated
with the investment company or are part of such family of
investment companies. "Family of investment companies"
means any two or more investment companies registered
under the Investment Company Act, except for a unit
investment trust whose assets consist solely of shares of
one or more registered investment companies, that have the
same investment adviser (or, in the case of unit investment
trusts, the same depositor), provided that, for purposes of
this section:
(A) each series of a series company (as defined in
Rule 18f-2 under the Investment Company Act (17
CFR 270.18f-2)) shall be deemed to be a separate
investment company; and
(B) investment companies shall be deemed to have
the same adviser (or depositor) if their advisers (or
depositors) are majority-owned subsidiaries of the
same parent, or if on investment company's adviser
(or depositor) is a majority-owned subsidiary of the
other investment company's adviser (or depositor).
[ ] (e) The Purchaser is an entity, all of the equity owners of
which are qualified institutional buyers, acting for its own
account or the accounts of other qualified institutional
buyers.
[ ] (f) The Purchaser is a bank as defined in Section 3(a)(2)
of the Act, any savings and loan association or other
institution as referenced in Section 3(a)(5)(A) of the Act, or
any foreign bank or savings and loan association or
equivalent institution, acting for its own account or the
accounts of other qualified institutional buyers, that in the
aggregate owns and invests on a discretionary basis at least
$100 million in securities of issuers that are not affiliated
with it and that has an audited net worth of at least $25
million ad demonstrated in its latest annual financial
statements, as of a date not more than 16 months preceding
the date of sale under the Rule in the case of a U.S. bank
or savings and loan association, and not more than 18
months preceding such date of sale for a foreign bank or
savings and loan association or equivalent institution.
The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Purchaser, (ii)
securities that are part of an unsold allotment to or subscription by
the Purchaser (if the Purchaser is a dealer), (iii) bank deposit notes
and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of
securities owned or invested on a discretionary basis by the
Purchaser, the Purchaser used the cost of such securities to the
Purchaser and did not include any of the securities referred to in
the preceding paragraph.
Further, in determining such aggregate amount, the
Purchaser may have included securities owned by subsidiaries of
the Purchaser, but only if such subsidiaries are consolidated with
the Purchaser in its financial statements prepared in accordance
with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the
Purchaser's direction. However, such securities were not included
if the Purchaser is a majority-owned, consolidated subsidiary of
another enterprise and the Purchaser is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
3. The Purchaser certifies and acknowledges that it is
familiar with Rule 144A and understands that you and your
customers (if you act as a broker for one or more customers) are
relying on the statements made therein.
4. The Purchaser certifies that the Purchaser is
purchasing the Certificates in the capacity marked below (check
one):
[ ] The Purchaser certifies that the Purchaser is purchasing the
Certificates for its own account only; or
[ ] The Purchaser certifies that the Purchaser is purchasing the
Certificates for the account of [one] [specify number:]
other qualified institutional buyer(s), [each of] which is a
"qualified institutional buyer." (Draw a line through
inapplicable words and brackets.)
5. The Purchaser certifies that, to the extent it has
requested same, it has received from the Seller the information that
satisfies the requirements of paragraph (d)(4) of Rule 144A (the
"Rule 144A Information").
6. The Purchaser certifies that it will comply with all
applicable federal and state securities laws in connection with any
subsequent resale by the Purchaser of the Certificates. The
Purchaser acknowledges that no Certificates may be exchanged for
any new Certificates having an initial principal balance of less than
$1,000,000.
7. The Purchaser understands and acknowledges that
the Certificates have not been and will not be registered under the
Securities Act of 1933, as amended, or any state securities laws
and may be resold only if (a) the Certificates are registered
pursuant to the provisions of the Securities Act of 1933, as
amended, and such state securities laws, or (b) if an exemption
from such registration is available. The Purchaser understands and
acknowledges that the Seller is not required to register the
Certificates and that any transfer must comply with Section 7.03
of the Agreement. The Trustee is not obligated to provide Rule
144A Information.
8. The Purchaser understands that there is no market,
nor is there any assurance that a market will develop, for the
Certificates and that the Seller does not have any obligation to
make or facilitate any such market (or to otherwise repurchase the
Certificates from the Purchaser) under any circumstances.
9. The Purchaser has consulted with its own legal
counsel, independent accountants and financial advisors to the
extent it deems necessary regarding the tax consequences to it of
ownership of the Certificates, is aware that its taxable income with
respect to the Certificates in any accounting period may not
correspond to the cash flow (if any) from the Certificates for such
period, and is not purchasing the Certificates in reliance on any
representations of the Seller or its counsel with respect to tax
matters.
10. [For III Finance and III Global only: The purchaser
acknowledges that it or its affiliate has acted as a warehouse lender
to the originator of the Receivables backing the Certificates and,
as such, it has had substantial access to information relating to the
Trust and the assets backing the Certificates] The Purchaser
has had the opportunity to review the documents providing for the
issuance of the Certificates and to ask questions and receive
answers concerning the terms and conditions of the transactions
contemplated thereby and to obtain additional information
necessary to verify the accuracy and completeness of any
information furnished to the Purchaser or to which the Purchaser
had access. The Purchaser acknowledges that no offering
memorandum or other offering literature has been prepared in
connection with the offering of the Certificates and that it is not
relying on any party for furnishing or verifying information
relating to the Seller, the Trust or other parties to this transaction
or their respective financial condition, or with respect to any assets
of the Trust or which relates in any way to the Certificates or any
security relating to the Certificates. The Purchaser has been
represented by its own legal counsel to the extent it deems
necessary in connection with the offering of the Certificates and is
not relying on counsel to the Trust or counsel to any other party
with respect to the matters relating, directly or indirectly, to the
furnishing or verifying of information relating to the Seller, the
Trust or any parties to the transaction or their respective financial
condition or with respect to any assets of the Trust or which
relates in any way to the Certificates or any security relating to the
Certificates.
11. The Purchaser hereby further agrees to be bound by
all the terms and conditions of the Certificates as provided in the
Pooling and Servicing Agreement.
12. If the Purchaser sells any of the Certificates, the
Purchaser will obtain from any subsequent purchaser the same
representations contained in this Letter.
Very truly yours,
[PURCHASER]
By
Name
Title EXHIBIT L
FORM OF INVESTOR/TRANSFEREE LETTER
(Non-Rule 144A Transfer)
[Date]
Aegis Auto Funding Corp. IV
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Norwest Bank Minnesota, National Association
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Attention: Corporate Trust Services Asset Backed
Administration
Aegis Auto Funding Corp. IV
Aegis Auto Receivables Trust 199_-_
Automobile Receivable Pass-Through Certificates,
Class ___
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase
certain Automobile Receivable Certificates, Class ____ (the
"Certificates") issued by Aegis Auto Receivables Trust 199_-_ (the
"Trust) pursuant to a Pooling and Servicing Agreement dated as of
_________________ (the "Pooling and Servicing Agreement"),
among Aegis Auto Funding Corp. IV, as Seller, Norwest Bank
Minnesota, National Association, as Backup Servicer, and Norwest
Bank Minnesota, National Association as Trustee. Unless the
context or use indicates another or different meaning, each
capitalized term used herein and not otherwise defined herein shall
have the meaning ascribed to it in the Pooling and Servicing
Agreement.
The Purchaser represents and warrants that:
(a) Information. [For III Finance and III Global only:
The Purchaser acknowledges that it or its affiliate has acted as a
warehouse lender to the originator of the Receivables and, as such,
it has had substantial access to information relating to the Trust
and the assets backing the Certificates.] The Purchaser
acknowledges that no offering memorandum or other offering
literature has been prepared in connection with the offering of the
Certificates and that it is not relying on any party for furnishing or
verifying information relating to the Seller, the Trust or other
parties to this transaction or their respective financial condition, or
with respect to any assets of the Trust or which relates in any way
to the Certificates or any security relating to the Certificates. The
Purchaser acknowledges that it has made such investigation as the
Purchaser deems necessary to evaluate the merits and risks
involved with an investment in the Certificates, and has had an
opportunity to review the documents providing for the issuance of
the Certificates and to meet with officers and employees of the
Seller and to ask questions and receive answers regarding an
investment in the Certificates and has asked any question he
desired to ask and has received answers with respect to such
questions to the full satisfaction of the Purchaser, and the
Purchaser confirms that all requested documents, records and
books pertaining to the investment in the Certificates have been
made available or delivered to the Purchaser, and the Purchaser
has relied exclusively on such information. The Purchaser has
been represented by its own legal counsel to the extent it deems
necessary in connection with the offering of the Certificate and is
not relying on counsel to the Trust or counsel to any other party
with respect to any matters relating, directly or indirectly, to the
furnishing or verifying of information relating to the Seller, the
Trust or other parties to the transaction or their respective financial
condition or with respect to any assets of the Trust or which
relates in any way to the Certificates or any security relating to the
Certificates.
(b) No Reliance on Other Purchasers. In making its
investment decision with respect to subscribing for the Certificates,
the Purchaser has not relied upon any statement, representation or
advice of any other Purchaser of the Certificates.
(c) Purchase for Investment. The Purchaser is
purchasing the Certificates without a view to any distribution,
assignment, resale or other disposition of the Certificates in any
manner which would violate the Securities Act of 1933, as
amended (the "Securities Act"), or applicable state securities or
"Blue Sky" laws, subject, nevertheless, to the understanding that
the disposition of the Purchaser's property shall at all times be and
remain within the Purchaser's control, and the Certificates are
being purchased solely for the Purchaser's own account for
investment purposes only and not for the account of any other
person.
(d) Institutional Accredited Investor. The Purchaser is
an institutional "accredited investor" as defined in Rule 501 under
the Securities Act as follows (check one):
( ) A bank as defined in Section 3(a)(2) of the
Securities Act, whether acting in its individual or fiduciary
capacity;
( ) A savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the Securities
Act, whether acting in its individual or fiduciary capacity;
( ) A broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934;
( ) An insurance company as defined in Section
2(13) of the Securities Act;
( ) An investment company registered under the
Investment Company Act of 1940 or a business
development company as defined in Section 2(a)(48) of that
Act;
( ) A Small Business Investment Company
licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act
of 1958;
( ) An employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act
of 1974 ("ERISA"), if the investment decision is made by
a plan fiduciary (as defined in Section 3(21) of ERISA)
which is a bank, savings and loan association, insurance
company or registered investment advisor, or if the plan
has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by
accredited investors;
( ) A plan established or maintained by a state,
its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of
$5,000,000;
( ) A private business development company as
defined in Section 202(a)(22) of the Investment Advisers
Act of 1940;
( ) An organization described in Section
501(c)(3) of the Internal Revenue Code, corporation,
Massachusetts or similar business trust or partnership, not
formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
( ) A trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is directed
by a person having such knowledge and experience in
financial and business matters to be capable of evaluating
the merits and risks of an investment in the Certificates; or
( ) An entity in which all of the equity owners
fall within one of the foregoing categories of "accredited
investors."
(e) Exempt Offering. The Purchaser understands that
the Certificates are not being registered under the Securities Act or
any state securities or "Blue Sky" laws and are being sold in
reliance on exemptions from the registration requirements of the
Securities Act and any such laws for non-public offerings. The
Purchaser understands that the exemptions from the registration
requirements under state securities laws upon which the
Certificates is relying require that the Purchaser be one of the
types of investors specified in subsection (d) above under the
applicable state securities law and the Purchaser is such an
investor. The Purchaser further understands that the Certificates
must be held indefinitely unless subsequently registered under the
Securities Act, any applicable state securities or "Blue Sky" laws
or unless exemptions from the registration requirements of the
Securities Act and such laws are available. The Purchaser
represents, warrants and agrees that, if at some future time the
Purchaser wishes to dispose of or exchange any of the Certificates,
the Purchaser will not do so unless before any such sale, transfer
or other disposition the Purchaser shall have furnished to the
Trustee either (a) a certificate of the transferee that the transferee
is a "qualified institutional buyer" within the meaning of Rule
144A promulgated pursuant to the Securities Act or (b) a
certificate of the transferee that the transferee is an institutional
"accredited investor" as defined in Rule 501(a) of the Securities
Act and, in the case of (b) only, an opinion of counsel satisfactory
in form and substance to the Trustee and the transferor, to the
effect that the sale, transfer or other disposition of such Certificate
has been registered under the Securities Act, or that such sale,
transfer or other disposition does not require registration under the
Securities Act.
(f) Legal Investment. The Purchaser understands that
there may be restrictions on the ability of certain investors,
including, without limitation, depository institutions, either to
purchase the Certificates or to purchase investments having
characteristics similar to those of the Certificates representing
more than a specified percentage of the investor's assets, and the
Purchaser further represents and warrants that it has consulted, and
relied on the advice of, its own legal advisor in determining
whether and to what extent the Certificates constitute a legal
investment for the Purchaser.
(g) The Purchaser (i) has no need for liquidity with
respect to the Certificates, (ii) is able to bear the economic risks
of an investment in the Certificates for an indefinite period and
(iii) is able to afford a complete loss of such investment. The
Purchaser has such knowledge and experience in financial and
business matters to use the information made available in
connection with the offering of the Certificates, to evaluate the
merits and risks of the prospective investment in the Certificates
and to make an informed business decision with respect thereto.
The Purchaser understands that the Seller will rely upon the
information supplied by the Purchaser pursuant to this Agreement
in order to verify this representation and warranty and represents
that such information is true and correct in all respects. The
Purchaser understands that a false representation may constitute a
violation of law, that any person which suffers damage as a result
of a false representation may have a claim against the undersigned
for damages for which the undersigned will indemnify the Seller
and its affiliates pursuant to the terms of this Agreement.
(h) The Purchaser recognizes that an investment in the
Certificates involves significant risks.
(i) The Purchaser understands that no offering
memorandum has been prepared for filing with or review by any
state securities administrators because of the representations made
by the Seller as to the private or limited nature of the offering.
(j) The Purchaser understands that there is no
established market for the Certificates and that none may develop
and, accordingly, that the Purchaser must bear the economic risk
of an investment in the Certificates for an indefinite period of
time.
(k) The Purchaser agrees that it is bound by and will
abide by the provisions of the Pooling and Servicing Agreement
pursuant to which the Certificates are issued.
(l) All information which the Purchaser has provided
to the Seller concerning the Purchaser is correct and complete as
of the date hereof, and if there should be any adverse change in
such information before receiving notification that this subscription
has been accepted, the Purchaser will immediately provide the
Seller with such information.
Very truly yours,
[PURCHASER]
By
Name
Title
EXHIBIT M
FORM OF ERISA REPRESENTATION LETTER
________________
(Date)
Aegis Auto Funding Corp. IV
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Norwest Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attention: Corporate Trust Services Asset Backed
Administration
Re: Aegis Auto Funding Corp. IV
Aegis Auto Receivables Trust 199_-_
Auto Receivable Pass-Through Certificates, Class
____
Ladies and Gentlemen:
[NAME OF OFFICER] _______________________
HEREBY CERTIFIES THAT:
1. [That he [she] is [Title of Officer]
________________________ of [Name of Transferee]
___________________________________ (the "Transferee"), a
[savings institution] [corporation] duly organized and existing
under the laws of [the State of _____________] [the United
States], on behalf of which he [she] makes this affidavit.
2. The Transferee (i) is not, and on _________ [insert
date of transfer of Certificate to Transferee] will not be, and on
such date will not be investing the funds of, an employee benefit
plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or a plan subject to Section 4975 of
the Code or (ii) is an insurance company investing assets of its
general account and the exemption provided by Section III(a) of
Department of Labor Prohibited Transaction Class Exemption 95-
60, 60 Fed. Reg. 35925 (July 12, 1995) (the "Exemption") applies
to the transferee's acquisition and holding of such Certificate.
3. The Transferee hereby acknowledges that under the
terms of the Pooling and Servicing Agreement (the "Agreement")
among Aegis Auto Funding Corp. IV, and Norwest Bank
Minnesota, National Association, as Backup Servicer and as
Trustee, dated as of _________________, no transfer of any Class
B or Class C Certificates shall be permitted to be made to any
person unless the Trustee has received (i) a certificate from such
transferee to the effect that such transferee (A) is not an employee
benefit plan subject to ERISA or a plan subject to Section 4975 of
the Code (a "Plan") and is not using assets of any such employee
benefit or other plan to acquire any such Certificate or (B) is an
insurance company investing assets of its general account and the
Exemption applies to the transferee's acquisition and holding of
such Certificate or (ii) an opinion of counsel satisfactory to the
Trustee to the effect that the purchase and holding of any such
Certificate will not constitute or result in the assets of the Trust
created by the Agreement begin deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA or
Section 4975 of the Code and will not subject the Trustee or the
Seller to any obligation in addition to those undertaken in the
Agreement (provided, however, that the Trustee will not require
such certificate or opinion in the event that, as a result of changed
of law or otherwise, counsel satisfactory to the Trustee has
rendered an opinion to the effect that the purchase and holding of
any such Certificate by a Plan or a Person that is purchasing or
holding any such Certificate with the assets of a Plan will not
constitute or result in a prohibited transaction under ERISA or
Section 4975 of the Code).
IN WITNESS WHEREOF, the Transferee has caused this
instrument to be executed on its behalf, pursuant to authority of its
Board of Directors, by its [Title of Officer] __________________,
this day of _____, 199_.
_______________________________________________
[name
of Transferee]
By:_____________________________________________
Name:
Title:
EXHIBIT N
NOTICE OF FUNDING
In accordance with the Pooling and Servicing Agreement
dated as of _________________ by and among Norwest Bank
Minnesota, National Association, as backup servicer and as
trustee, and Aegis Auto Funding Corp. IV, a Delaware corporation
(the "Pooling and Servicing Agreement"), the undersigned hereby
gives notice of a Funding Date to occur on ____________, 19
for each of the Receivables listed on Schedule I to the Assignment
executed by the undersigned and accompanying this Notice of
Funding. Unless otherwise defined herein, capitalized terms have
the meanings set forth in the Pooling and Servicing Agreement.
Such Receivables represent the following amounts:
Principal Balance of Receivables
as of the Cutoff Date: $______________
Amount to be transferred
to the Reserve Fund from
the Funding Account: $______________
Amount to be wired to the undersigned or its
designee (Aegis Finance) in payment for such
Receivables: $______________
The undersigned hereby certifies that, in connection with
the Funding Date specified above, the undersigned has complied
with all terms and provisions specified in Section 3.08 of the
Pooling and Servicing Agreement, including, but not limited to,
delivery of the Officers' Certificate, as specified therein.
Date: ________________, 199
AEGIS
AUTO FUNDING CORP. IV,
a
Delaware Corporation, as Seller
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
EXHIBIT O
OFFICER'S CERTIFICATE
re: Funding Date
AEGIS AUTO FUNDING CORP. IV
To: Norwest Bank Minnesota, National Association
Corporate Trust Services Asset Backed Administration
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
This Officer's Certificate is being issued in accordance with
Section 3.08 of the Pooling and Servicing Agreement dated as of
_________________ (the "Pooling and Servicing Agreement") by
and among Aegis Auto Funding Corp. IV, a Delaware corporation,
as seller ("Seller"), and Norwest Bank Minnesota, National
Association, as Backup Servicer and as Trustee. Terms not
otherwise defined herein shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement.
By his signature below, the undersigned certifies that:
(a) The matters set forth in Section 3.01(b) of
the Purchase Agreement by and between Aegis Auto
Finance, Inc., as the transferor named therein, and Seller,
as transferee, are true and correct. All Receivables
acquired on the Funding Date to occur on ________, 199
constitute Additional Receivables meeting the criteria
specified in the Purchase Agreement; and
(b) The representations and warranties set forth
in Sections 3.01(a) and (b) of the Pooling and Servicing
Agreement are true and correct as of the date hereof; and
(c) The documents listed in Sections 3.08(b)(i)
and (ii) of the Pooling and Servicing Agreement are being
delivered to the Trustee in its capacity as Custodian on or
before the Funding Date specified herein.
Dated: __________, 199_
AEGIS AUTO
FUNDING CORP. IV,
a Delaware
corporation, as Seller
By
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, President
EXHIBIT P
ASSIGNMENT
In accordance with the Pooling and Servicing Agreement
dated as of _________________ by and among Aegis Auto
Funding Corp. IV, a Delaware corporation (the "Seller"), and
Norwest Bank Minnesota, National Association, as trustee (the
"Trustee") and as backup servicer (the "Backup Servicer") (the
"Pooling and Servicing Agreement"), the Seller hereby assigns,
transfers and otherwise conveys unto the Trustee in trust for the
benefit of the Certificateholders, without recourse (capitalized
terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling and Servicing
Agreement): (i) all right, title and interest of the Seller in and to
the Receivables identified on Schedule I attached hereto (the
"Receivables"), and all moneys received thereon, on and after the
Cutoff Date; (ii) the interest of the Seller in the security interests
in the Financed Vehicles granted by the Obligors pursuant to the
Receivables and all certificates of title to such Financed Vehicles;
(iii) the interest of the Seller in any Risk Default Insurance
Proceeds or any proceeds from claims on Insurance Policies
(including the VSI Insurance Policy) covering the Receivables, the
Financed Vehicles or Obligors from the Cutoff Date; (iv) the right
of the Seller to realize upon any property (including the right to
receive future liquidation Proceeds) that shall have secured a
Receivable and have been repossessed by or on behalf of the
Trustee; (v) the interest of the Seller in any Dealer Recourse; (vi)
all right, title and interest in the Seller in and to the Purchase
Agreement; (vii) all right, title and interest of the Seller in and to
the Funding Account and any monies and investments on deposit
therein and (viii) the proceeds of any and all of the foregoing.
The foregoing sale does not constitute and is not intended to result
in any assumption by the Trustee of any obligation of the
undersigned to the Obligors, insurers or any other person in
connection with the Receivables, Custodian Files, Servicer Files,
any insurance policies or any agreement or instrument relating to
any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements contained in the
Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of , 199 .
AEGIS
AUTO FUNDING CORP. IV,
a
Delaware corporation
By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
EXHIBIT Q
[RESERVED]
EXHIBIT R
TRUSTEE'S CERTIFICATE
Norwest Bank Minnesota, National Association, as trustee
(the "Trustee") of the Aegis Auto Receivables Trust Series 199_-_
created pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of
_________________ among Aegis Auto Funding Corp. IV (the
"Seller"), Norwest Bank Minnesota, National Association, as
backup servicer (the "Backup Servicer") and as trustee (the
"Trustee"), does hereby sell, transfer, assign and otherwise convey
to the Seller, without recourse, representation or warranty, all of
the Trustee's right, title and interest in and to all of the
Receivables (as defined in the Pooling and Servicing Agreement)
identified in the attached Servicer's Certificate of "Purchased
Receivables," which are to be repurchased by the Seller pursuant
to Section 3.02 of the Pooling and Servicing Agreement, and all
security and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this
day of 199 .
Norwest Bank Minnesota, National
Association, as Trustee
By
[Name]
[Title]
EXHIBIT S
[RESERVED]
APPENDIX B
TO THE MASTER TRUST AGREEMENT
FORM OF POOLING AND SERVICING AGREEMENT
AEGIS AUTO FUNDING CORP. IV,
a Delaware Corporation, Seller
and
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Trustee and Backup Servicer
POOLING AND SERVICING AGREEMENT
Dated as of _________________
$______________
AEGIS AUTO RECEIVABLES TRUST 199_-_
AUTOMOBILE RECEIVABLE PASS-THROUGH
CERTIFICATES
TABLE OF CONTENTS
Page
ARTICLE I. CREATION OF TRUST
1
ARTICLE II. CONVEYANCE OF RECEIVABLES
1
ARTICLE III. ACCEPTANCE BY TRUSTEE
3
ARTICLE IV. INCORPORATION OF STANDARD TERMS
AND
CONDITIONS
3
ARTICLE V. SPECIAL DEFINITIONS AND TERMS
4
ARTICLE VI. ADDITIONAL SELLER REPRESENTATIONS
5
TESTIMONIUM
SIGNATURES
APPENDIX A Schedule of Receivables
APPENDIX B Schedule of Identified Additional Receivables
APPENDIX C Standard Terms and Conditions
APPENDIX D VSI Insurance Policy Endorsement
POOLING AND SERVICING AGREEMENT
This POOLING AND SERVICING AGREEMENT is dated
as of ____________ (this "Agreement") among Aegis Auto
Funding Corp. IV, a Delaware corporation, as Seller (the "Seller")
and Norwest Bank Minnesota, National Association, a national
banking association, as trustee for the Trust (the "Trustee") and as
Backup Servicer (the "Backup Servicer") and is made with respect
to the formation of the Aegis Auto Receivables Trust 199_-_ (the
"Trust").
WHEREAS, the Seller and the Trustee desire to form a
trust pursuant to the Master Trust Agreement dated as of March 1,
1997 (the "Master Trust Agreement") by and between the Seller
and the Trustee, and provide for the issuance of a series of
Automobile Pass-Through Certificates by such trust;
NOW, THEREFORE, in consideration of the premises and
of the mutual agreements herein contained, the parties hereto agree
as follows:
ARTICLE I
CREATION OF TRUST
Upon the execution of this Agreement by the parties hereto,
there is hereby created the Aegis Auto Receivables Trust 199_-_.
The situs and administration of the Trust shall be in Minneapolis,
Minnesota or in such other city in which the Corporate Trust
Office is located from time to time.
ARTICLE II
CONVEYANCE OF RECEIVABLES
[Note: Delete bracketed provisions if no Funding Period is
applicable. Remove brackets if there will be a Funding Period]
Section 2.01. Conveyance by Seller.
(a) In consideration of the Trustee's delivery of
the Certificates to or upon the order of the Seller in an
aggregate principal amount equal to the aggregate Principal
Balance of the Initial Receivables [plus the Original Pre-
Funded Amount,] the Seller does hereby irrevocably sell,
assign, and otherwise convey to the Trustee, in trust for the
benefit of the Certificateholders, without recourse (subject
to the obligations herein):
(i) all right, title and interest of the Seller in and to the Initial
Receivables identified on Appendix A hereto, all Excess Interest
Collections thereon and all other moneys received thereon on and
after the Cutoff Date;
(ii) the interest of the Seller in the
security interests in the Financed Vehicles granted
by the Obligors pursuant to the Initial Receivables;
(iii) the interest of the Seller in any Risk
Default Insurance Proceeds and any proceeds from
claims on any Insurance Policies (including the VSI
Insurance Policy) covering the Initial Receivables,
the Financed Vehicles or the Obligors from the
Cutoff Date;
(iv) all right, title and interest of the
Seller in and to the Funding Account and all
moneys and investments from time to time on
deposit therein;
(v) the right of the Seller to realize upon
any property (including the right to receive future
Liquidation Proceeds) that shall have secured an
Initial Receivable and have been repossessed by or
on behalf of the Trustee;
(vi) the interest of the Seller in any
Dealer Recourse relating to the Initial Receivables;
(vii) all right, title and interest of the
Seller in and to the Purchase Agreement; and
(viii) the proceeds of any and all of the
foregoing.
[(b) Subject to the conditions set forth in Section
3.08 of the Standard Terms incorporated herein, in
consideration of the Trustee's delivery on the related
Funding Dates to or upon the order of the Seller of all or
a portion of the balance in the Funding Account in an
amount equal to the aggregate Receivables Cash Purchase
Price of the Additional Receivables to be acquired on the
Funding Date, the Seller shall on such Funding Date sell,
transfer, assign, set over and otherwise convey to the
Trustee, without recourse (subject to the obligations
herein):
(i) all right, title and interest of the Seller in and to the
Additional Receivables, all Excess Interest Collections thereon and
all other moneys received thereon on and after the related Cutoff
Date;
(ii) the interest of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Additional
Receivables;
(iii) the interest of the Seller in any Risk Default Insurance
Proceeds or any proceeds from claims on any Insurance Policies
(including the VSI Insurance Policy) covering the Additional
Receivables, the Financed Vehicles or the Obligors from the
related Cutoff Date;
(iv) the right of the Seller to realize upon any property
(including the right to receive future Liquidation Proceeds) that
shall have secured an Additional Receivable and have been
repossessed by or on behalf of the Trustee;
(v) the interest of the Seller in any Dealer Recourse relating to
the Additional Receivables;
(vi) all right, title and interest of the Seller in and to the
Purchase Agreement; and
(vii) the proceeds of any and all of the foregoing.]
Section 2.02. Nature of Conveyance. It is the intention of
the Seller and the Trustee that the transfer and assignment of the
Seller's right, title and interest in and to the assets identified in
clauses (i) through (vii) of Section 2.01(a) [and clauses (i) through
(vii) of Section 2.01(b)] (collectively, the "Trust Property") shall
constitute an absolute sale by the Seller to the Trustee in trust for
the benefit of the Certificateholders. In the event a court of
competent jurisdiction were to recharacterize the transfer of the
Trust Property as a secured borrowing rather than a sale, contrary
to the intent of the Seller and the Trustee, the Seller does hereby
grant, assign and convey to the Trustee and the Trust, as security
for all amounts payable to the Certificateholders, a security in and
lien upon all of its right, title and interest in and to the Trust
Property, including all amounts deposited to the Lock-Box
Account, the Collection Account, the Certificate Account [and the
Funding Account,] said security interest to be effective from the
date of execution of this Agreement.
The Trustee and the Certificateholders acknowledge and
agree that the Seller is the holder of the Residual Interest.
ARTICLE III
ACCEPTANCE BY TRUSTEE
The Trustee, on behalf of the Trust, hereby accepts all
consideration conveyed by the Seller pursuant to Article II, and
declares that the Trustee shall hold such consideration upon the
trusts herein set forth for the benefit of all present and future
Certificateholders, subject to the terms and provisions of this
Agreement and the Master Trust Agreement.
ARTICLE IV
INCORPORATION OF STANDARD TERMS AND
CONDITIONS
This Agreement hereby incorporates by reference the
Standard Terms provided for by the Master Trust Agreement in
the form attached hereto as Appendix C, except to the extent
expressly modified hereby.
ARTICLE V
SPECIAL DEFINITIONS AND TERMS
Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Standard Terms and
Conditions. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Backup Servicer Fee" means, with respect to any
Distribution Date, one-twelfth of the product of (i) 0.02% per
annum and (ii) the outstanding Pool Balance as of the first day of
the preceding Collection Period or, in the case of the first
Distribution Date, as of the Closing Date.
"Class A Percentage" means _________%.
"Class A Rate" means _________% of interest per annum.
"Class B Percentage" means _________%.
"Class B Rate" means _________% of interest per annum.
"Closing Date" means _____________.
"Custodian Fee" means $1.75 per file boarded.
"Cutoff Date" means ____________.
"Discount Rate" means % per annum.
"Final Scheduled Distribution Date" means
______________.
["Funding Account Interest Amount" means
________________________.]
["Funding Period" means the period beginning on the
Closing Date and ending on the earlier to occur of (i) the Final
Funding Date or (ii) the expiration of the fifteen day period
commencing on the Closing Date.]
"Initial Distribution Date" means _____________.
"Original Class Certificate Balance" means, as to the Class
A Certificates, $_____________, and as to the Class B
Certificates, $______________.
["Original Pre-Funded Amount" means $ , the
amount deposited in the Funding Account on the Closing Date.]
"Reserve Fund Initial Deposit" means $______________.
"Trustee Fee" means, with respect to any Distribution Date,
one-twelfth of the product of (i) 0.01% per annum and (ii) the
aggregate Class Certificate Balance as of the close of business on
the preceding Distribution Date (or, in the case of the Initial
Distribution Date, the original aggregate Class Certificate
Balance).
ARTICLE VI
ADDITIONAL SELLER REPRESENTATIONS
The Seller hereby makes the following additional
representations with respect to the Receivables:
(i) Schedule of Receivables. The information set forth
in Appendix A hereto is true, complete and correct in all material
respects as of the opening of business on the applicable Cutoff
Dates, as the case may be, and no selection procedures adverse to
the Certificateholders have been utilized in selecting the
Receivables.
(ii) Scheduled Payments. No Receivables had a payment
that was more than 59 days overdue as of the applicable Cutoff
Date; and each Receivable has a final scheduled payment due no
later than the Final Scheduled Distribution Date.
(iii) Annual Percentage Rate. The addition of the
Additional Receivables on each Funding Date will not decrease the
weighted average APR of all Receivables sold hereunder by more
than 10 basis points.
(iv) States of Origination. After the addition of all
Additional Receivables to the Trust, not more than 25% of the
Receivables will have been originated in any one state.
(v) Insurance Policy Endorsements. Attached hereto as
Appendices E and F, respectively, are true and correct copies of
the endorsements to the Risk Default Insurance Policy and VSI
Insurance Policy required by the Standard Terms.
ARTICLE VII
CERTIFICATE DELIVERY AND REGISTRATION
The Certificates shall be designated as the "Aegis Auto
Receivables Trust _________, Automobile Receivable Pass-
Through Certificates, Series _____ (the "Certificates"), and issued
with an initial aggregate Certificate Balance of $___________ in
two Classes as follows: Class A Certificates with an initial
Balance of $______________ and Class B Certificates with an
initial Certificate Balance of $_____________.
The Seller hereby directs the Trustee to register the
Certificates in the names and denominations specified in the
direction attached hereto as Appendix E, and to execute,
authenticate and deliver the Certificates to the initial purchasers
specified in such direction upon receipt by the Trustee of the
following:
(i) $_____________ in immediately available
funds from the purchasers for the account of the
Seller;
(ii) Investor letters executed by each of the
initial purchasers;
(iii) An executed copy of the Supplemental
Conveyance from Aegis Finance in the form attached as
Appendix A to the Purchase Agreement with respect to the
Receivables conveyed to the Trust on the Closing Date;
(iv) An executed copy of the certificate of the
Seller required by Section 7 of the Master Certificate
Purchase Agreement substantially in the form attached
hereto as Appendix F; and
(v) Executed opinions of counsel to the Seller
required by Section 7 of the Master Certificate Purchase
Agreement.
ARTICLE VIII
APPLICATION OF PROCEEDS
The proceeds of the Certificates, receipt of which the
Trustee hereby acknowledges, shall be applied as follows:
(i) $___________ shall be deposited into
the Reserve Fund as the Reserve Fund Initial
Deposit;
[(ii) $____________ shall be deposited
into the Funding Account as the Original Pre-
Funded Amount]; and
(iii) The remainder of $____________
shall be paid to the Seller or upon the Seller's
order.
IN WITNESS WHEREOF, the parties hereto have caused
this Pooling and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
AEGIS AUTO
FUNDING CORP. IV,
as Seller
By:
Name:
Title:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee and
as Backup Servicer
By:
Name:
Title:
[Signature Page to Pooling and Servicing Agreement]
APPENDIX A
SCHEDULE OF RECEIVABLES
Delivered to the Trustee on the Closing Date
[(This Schedule shall be deemed to be amended on each Funding
Date to add
Additional Receivables and shall be deemed to be amended to
account for any
substitution of Receivables permitted by the Agreement upon the
occurrence of any such substitution.)]
(See Attached)
APPENDIX B
STANDARD TERMS AND CONDITIONS
APPENDIX C
RISK DEFAULT INSURANCE POLICY ENDORSEMENT
APPENDIX D
VSI INSURANCE POLICY ENDORSEMENT
Appendix E
$[AMOUNT]
Aegis Auto Receivables Trust ________
Automobile Receivable Pass-Through Certificates,
Series _________
DIRECTION AS TO
REGISTRATION OF CERTIFICATES
The undersigned purchasers of the above-referenced Certificates hereby
direct the Trustee to register such Certificates in the names and
denominations specified below:
CLASS A CERTIFICATES
Certificate
Number Name
Amount Purchased
R-1
$[CLASS A AMOUNT]
CLASS B CERTIFICATES
Certificate
Number Name
Amount Purchased
R-1
$[CLASS B AMOUNT]
Total
$[AMOUNT]
IN WITNESS WHEREOF, the undersigned have duly
executed this Direction as to Registration of Certificates as of the
date set forth below.
Dated: _____________________
III FINANCE LTD.
By
Name:
Title:
III GLOBAL LTD.
By
Name:
Title:
III LIMITED PARTNERSHIP
By
Name:
Title:
Appendix F
$[AMOUNT]
Aegis Auto Receivables Trust _________
Automobile Receivable Pass-Through Certificates,
Series _________
GENERAL CERTIFICATE
OF
AEGIS AUTO FUNDING CORP. IV
The undersigned, on behalf of Aegis Auto Funding
Corp. IV, a Delaware corporation ("Seller"), hereby certifies this
_________________, as follows in connection with the issuance of
the above-referenced Certificates (the "Certificates") pursuant to
the terms of the Pooling and Servicing Agreement dated as of
________________ (the "Agreement") among the Seller, Norwest
Bank Minnesota, National Association, as backup servicer and
Norwest Bank Minnesota, National Association, as Trustee, and
the Master Trust Agreement dated as of March 1, 1997 (the
"Master Trust Agreement") between the Seller and the Trustee
(capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Standard Terms and
Conditions attached as Appendix A to the Master Trust
Agreement):
1. The undersigned has carefully examined the
Agreement, the Master Trust Agreement, the Purchase Agreement
and the Master Certificate Purchase Agreement.
2. The representations and warranties of the
Seller contained in the Agreement, the Master Trust Agreement,
the Purchase Agreement and the Master Certificate Purchase
Agreement are true and correct in all material respects as if made
on and as of the date hereof (except for such representations and
warranties specifically made as of another specified date).
3. Neither the Seller nor any of its Affiliates is
in default in the performance of any of their respective obligations
under the documents mentioned in paragraph 2 above or any other
Pooling and Servicing Agreement executed pursuant to the terms
of the Master Trust Agreement.
4. The Seller has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
under the documents specified in paragraph 2 above at or prior to
the date hereof.
5. The Seller did not, either independently or
through any other party, solicit any offer to buy or offer to sell the
Certificates or any similar security by means of any form of
general solicitation or general advertising, including, but not
limited to, (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar
medium or broadcast over television or radio, and (ii) any seminar
or meeting whose attendees have been invited by any general
solicitation or general advertising.
6. The Certificates were sold by the Seller to III
Finance Ltd., III Global Ltd. and III Limited Partnership in a
private placement in transactions exempt from the registration
requirements of the Act.
7. The undersigned is duly authorized by the
Seller to make the foregoing representations on behalf of the Seller
and has conducted such investigation and made such inquiries as
he has deemed necessary and appropriate in order to make such
representations on behalf of the Seller.
IN WITNESS WHEREOF the undersigned has signed this
General Certificate of Aegis Auto Funding Corp. IV as of the date
first written above.
AEGIS AUTO
FUNDING CORP. IV
By:
__________________________
Name:
Title:
Appendix [G]
FORM OF OPINIONS