Common use of Secondary Reserve Account Clause in Contracts

Secondary Reserve Account. (a) The Servicer shall establish, on or before the Closing Date, and maintain in the name of the Indenture Trustee at an Eligible Institution (which shall initially be the Indenture Trustee) a segregated trust account designated as the Secondary Reserve Account (the “Secondary Reserve Account”). The Secondary Reserve Account shall be held in trust for the benefit of the Noteholders and the Certificateholders. The Secondary Reserve Account shall be under the sole dominion and control of the Indenture Trustee; provided, however, that the Servicer may make deposits to and direct the Indenture Trustee in writing to make withdrawals from the Secondary Reserve Account in accordance with this Agreement and the Indenture. The Secondary Reserve Account and all amounts, securities, investments, financial assets and other property deposited in or credited to the Secondary Reserve Account (the “Secondary Reserve Account Property”) has been conveyed by the Depositor to the Trust pursuant to Section 2.1. Pursuant to the Indenture, the Trust will pledge all of its right, title and interest in, to and under the Secondary Reserve Account and the Secondary Reserve Account Property to the Indenture Trustee on behalf of the Noteholders and the Certificateholders to secure its obligations under the Notes and the Indenture. (b) The Secondary Reserve Account Property shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Secondary Reserve Account in Permitted Investments that mature not later than the Business Day preceding the next Distribution Date. All such Permitted Investments shall be held to maturity. On any Distribution Date, all interest and other income (net of losses and investment expenses) on funds on deposit in the Secondary Reserve Account, to the extent that funds on deposit therein, as certified by the Servicer, exceed the Required Secondary Reserve Account Amount, shall, at the written direction of the Servicer, (i) first, be deposited into the Reserve Account to the extent of any unfunded Reserve Account Deficiency on such Distribution Date (after giving effect to all deposits to and withdrawals from the Reserve Account on such Distribution Date), (ii) second, be deposited into the Note Payment Account, for payment of principal of the Notes in the priority set forth in Section 2.8(b) of the Indenture, to the extent of any unfunded Regular Principal Distributable Amount, if any, on such Distribution Date (after giving effect to the application of Available Funds on such Distribution Date) and (iii) third, be deposited into the Certificate Payment Account for payment to the Certificateholders. If the Secondary Reserve Account is no longer to be maintained at the Indenture Trustee, the Servicer shall, with the Indenture Trustee’s assistance as necessary, promptly (and in any case within ten (10) calendar days or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent) cause the Secondary Reserve Account to be moved to an Eligible Institution. The Servicer shall promptly notify the Indenture Trustee and the Owner Trustee in writing of any change in the account number or location of the Secondary Reserve Account. (c) With respect to any Secondary Reserve Account Property: (i) any Secondary Reserve Account Property that is a “financial asset” (as defined in Section 8-102(a)(9) of the Relevant UCC) shall be physically delivered to, or credited to an account in the name of, the Eligible Institution maintaining the Secondary Reserve Account, in accordance with such institution’s customary procedures such that such institution establishes a “securities entitlement” in favor of the Indenture Trustee with respect thereto; (ii) any Secondary Reserve Account Property that is held in deposit accounts shall be held solely in the name of the Indenture Trustee at one or more depository institutions having the Required Rating and each such deposit account shall be subject to the exclusive custody and control of the Indenture Trustee and the Indenture Trustee shall have sole signature authority with respect thereto; and (iii) except for any deposit accounts specified in clause (ii) above, the Secondary Reserve Account shall only be invested in securities or in other assets which the Eligible Institution maintaining the Secondary Reserve Account agrees to treat as “financial assets” (as defined in Section 8-102(a)(9) of the Relevant UCC). (d) If the Secondary Reserve Account Amount for any Distribution Date (after giving effect to the withdrawal of the Secondary Reserve Account Draw Amount for such Distribution Date) exceeds the Required Secondary Reserve Account Amount for such Distribution Date, the Servicer shall instruct the Indenture Trustee in writing to distribute the amount of such excess (i) first, to the Reserve Account to the extent of any unfunded Reserve Account Deficiency on such Distribution Date (after giving effect to all deposits to and withdrawals from the Reserve Account on such Distribution Date), (ii) second, be deposited into the Note Payment Account, for payment of principal of the Notes in the priority set forth in Section 2.8(b) of the Indenture, to the extent of any unfunded Regular Principal Distributable Amount, if any, on such Distribution Date (after giving effect to the application of Available Funds on such Distribution Date) and (iii) third, to the Certificate Payment Account for payment to the Certificateholders. The Indenture Trustee and the Owner Trustee hereby release, on each Distribution Date, their security interest in, to and under Secondary Reserve Account Property distributed to the Certificateholders. (e) If the Note Balance, and all other amounts owing or to be distributed hereunder or under the Indenture or the Trust Agreement to the Noteholders, or the Certificateholders, have been paid in full and the Trust has been terminated, any remaining Secondary Reserve Account Property shall be distributed to the Certificateholders.

Secondary Reserve Account. (a) The Servicer shall establish, on or before the Closing Date, and maintain in the name of the Indenture Trustee at an Eligible Institution (which shall initially be the Indenture Trustee) a segregated trust account designated as the Secondary Reserve Account (the “Secondary Reserve Account”). The Secondary Reserve Account shall be held in trust for the benefit of the Noteholders and the Certificateholders. The Secondary Reserve Account shall be under the sole dominion and control of the Indenture Trustee; provided, however, that the Servicer may make deposits to and direct the Indenture Trustee in writing to make withdrawals from the Secondary Reserve Account in accordance with this Agreement and the Indenture. The Secondary Reserve Account and all amounts, securities, investments, financial assets and other property deposited in or credited to the Secondary Reserve Account (the “Secondary Reserve Account Property”) has been conveyed by the Depositor to the Trust pursuant to Section 2.1. Pursuant to the Indenture, the Trust will pledge all of its right, title and interest in, to and under the Secondary Reserve Account and the Secondary Reserve Account Property to the Indenture Trustee on behalf of the Noteholders and the Certificateholders to secure its obligations under the Notes and the Indenture. (b) The Secondary Reserve Account Property shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Secondary Reserve Account in Permitted Investments that mature not later than the Business Day preceding the next Distribution Date. All such Permitted Investments shall be held to maturity. On any Distribution Date, all interest and other income (net of losses and investment expenses) on funds on deposit in the Secondary Reserve Account, to the extent that funds on deposit therein, as certified by the Servicer, exceed the Required Secondary Reserve Account Amount, shall, at the written direction of the Servicer, (i) first, be deposited into the Reserve Account to the extent of any unfunded Reserve Account Deficiency on such Distribution Date (after giving effect to all deposits to and withdrawals from the Reserve Account on such Distribution Date), ) and (ii) second, be deposited into the Note Payment Account, for payment of principal of the Notes in the priority set forth in Section 2.8(b) of the Indenture, to the extent of any unfunded Regular Principal Distributable Amount, if any, on such Distribution Date (after giving effect to the application of Available Funds on such Distribution Date) and (iii) third, be deposited into the Certificate Payment Account for payment paid to the Certificateholders. If the Secondary Reserve Account is no longer to be maintained at the Indenture Trustee, the Servicer shall, with the Indenture Trustee’s assistance as necessary, promptly (and in any case within ten (10) calendar days or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent) cause the Secondary Reserve Account to be moved to an Eligible Institution. The Servicer shall promptly notify the Indenture Trustee and the Owner Trustee in writing of any change in the account number or location of the Secondary Reserve Account. (c) With respect to any Secondary Reserve Account Property: (i) any Secondary Reserve Account Property that is a “financial asset” (as defined in Section 8-102(a)(9) of the Relevant UCC) shall be physically delivered to, or credited to an account in the name of, the Eligible Institution maintaining the Secondary Reserve Account, in accordance with such institution’s customary procedures such that such institution establishes a “securities entitlement” in favor of the Indenture Trustee with respect thereto; (ii) any Secondary Reserve Account Property that is held in deposit accounts shall be held solely in the name of the Indenture Trustee at one or more depository institutions having the Required Rating and each such deposit account shall be subject to the exclusive custody and control of the Indenture Trustee and the Indenture Trustee shall have sole signature authority with respect thereto; and (iii) except for any deposit accounts specified in clause (ii) above, the Secondary Reserve Account shall only be invested in securities or in other assets which the Eligible Institution maintaining the Secondary Reserve Account agrees to treat as “financial assets” (as defined in Section 8-102(a)(9) of the Relevant UCC). (d) If any Class of Notes has not been paid in full on any Distribution Date on or after its Class Final Distribution Date (after giving effect to the distribution of Available Funds, the Secondary Reserve Account Draw Amount and any remaining amounts on deposit in the Reserve Account on such Distribution Date), the Servicer shall instruct the Indenture Trustee to distribute to the Holders of that Class of Notes, from amounts on deposit in the Secondary Reserve Account, an amount equal to the lesser of (i) the amount on deposit in the Secondary Reserve Account and (ii) the outstanding principal amount of that Class of Notes. If the Secondary Reserve Account Amount for any Distribution Date (after giving effect to the withdrawal of the Secondary Reserve Account Draw Amount for such Distribution DateDate and the distribution described in the preceding sentence) exceeds the Required Secondary Reserve Account Amount for such Distribution Date, the Servicer shall instruct the Indenture Trustee in writing to distribute the amount of such excess (i) first, to the Reserve Account to the extent of any unfunded Reserve Account Deficiency on such Distribution Date (after giving effect to all deposits to and withdrawals from the Reserve Account on such Distribution Date), ) and (ii) second, be deposited into the Note Payment Account, for payment of principal of the Notes in the priority set forth in Section 2.8(b) of the Indenture, to the extent of any unfunded Regular Principal Distributable Amount, if any, on such Distribution Date (after giving effect to the application of Available Funds on such Distribution Date) and (iii) third, to the Certificate Payment Account for payment to the Certificateholders. The Indenture Trustee and the Owner Trustee hereby release, on each Distribution Date, their security interest in, to and under Secondary Reserve Account Property distributed to the Certificateholders. (e) If the Note Balance, and all other amounts owing or to be distributed hereunder or under the Indenture or the Trust Agreement to the Noteholders, or the Certificateholders, have been paid in full and the Trust has been terminated, any remaining Secondary Reserve Account Property shall be distributed to the Certificateholders.

Secondary Reserve Account. (a) The Servicer shall establish, on or before the Closing Date, and maintain in the name of the Indenture Trustee at an Eligible Institution (which shall initially be the Indenture Trustee) a segregated trust account designated as the Secondary Reserve Account (the “Secondary Reserve Account”). The Secondary Reserve Account shall be held in trust for the benefit of the Noteholders and the Certificateholders. The Secondary Reserve Account shall be under the sole dominion and control of the Indenture Trustee; provided, however, that the Servicer may make deposits to and direct the Indenture Trustee in writing to make withdrawals from the Secondary Reserve Account in accordance with this Agreement and the Indenture. On the Closing Date, the Depositor shall deposit the Initial Secondary Reserve Account Deposit into the Secondary Reserve Account from the net proceeds of the sale of the Notes. The Secondary Reserve Account and all amounts, securities, investments, financial assets and other property deposited in or credited to the Secondary Reserve Account (the “Secondary Reserve Account Property”) has been conveyed by the Depositor to the Trust pursuant to Section 2.1. Pursuant to the Indenture, the Trust will pledge all of its right, title and interest in, to and under the Secondary Reserve Account and the Secondary Reserve Account Property to the Indenture Trustee on behalf of the Noteholders and the Certificateholders to secure its obligations under the Notes and the Indenture. (b) The Secondary Reserve Account Property shall, to the extent permitted by applicable law, rules and regulations, be invested, as directed in writing by the Servicer, by the bank or trust company then maintaining the Secondary Reserve Account in Permitted Investments that mature not later than the Business Day preceding the next Distribution Date. All such Permitted Investments shall be held to maturity. On any Distribution Date, all interest and other income (net of losses and investment expenses) on funds on deposit in the Secondary Reserve Account, to the extent that funds on deposit therein, as certified by the Servicer, exceed the Required Secondary Reserve Account Amount, shall, at the written direction of the Servicer, (i) first, be deposited into the Reserve Account to the extent of any unfunded Reserve Account Deficiency on such Distribution Date (after giving effect to all deposits to and withdrawals from the Reserve Account on such Distribution Date), (ii) second, be deposited into the Note Payment Account, for payment of principal of the Notes in the priority set forth in Section 2.8(b) of the Indenture, to the extent of any unfunded Regular Principal Distributable Amount, if any, on such Distribution Date (after giving effect to the application of Available Funds on such Distribution Date) and (iii) third, be deposited into the Certificate Payment Account for payment to the Certificateholders. If the Secondary Reserve Account is no longer to be maintained at the Indenture Trustee, the Servicer shall, with the Indenture Trustee’s assistance as necessary, promptly (and in any case within ten (10) calendar days or such longer period not to exceed thirty (30) calendar days as to which each Rating Agency may consent) cause the Secondary Reserve Account to be moved to an Eligible Institution. The Servicer shall promptly notify the Indenture Trustee and the Owner Trustee in writing of any change in the account number or location of the Secondary Reserve Account. (c) With respect to any Secondary Reserve Account Property: (i) any Secondary Reserve Account Property that is a “financial asset” (as defined in Section 8-102(a)(9) of the Relevant UCC) shall be physically delivered to, or credited to an account in the name of, the Eligible Institution maintaining the Secondary Reserve Account, in accordance with such institution’s customary procedures such that such institution establishes a “securities entitlement” in favor of the Indenture Trustee with respect thereto; (ii) any Secondary Reserve Account Property that is held in deposit accounts shall be held solely in the name of the Indenture Trustee at one or more depository institutions having the Required Rating and each such deposit account shall be subject to the exclusive custody and control of the Indenture Trustee and the Indenture Trustee shall have sole signature authority with respect thereto; and (iii) except for any deposit accounts specified in clause (ii) above, the Secondary Reserve Account shall only be invested in securities or in other assets which the Eligible Institution maintaining the Secondary Reserve Account agrees to treat as “financial assets” (as defined in Section 8-102(a)(9) of the Relevant UCC). (d) If a tax is imposed on the Trust under HB3, which tax becomes due and payable after the Closing Date and is not paid by the Seller pursuant to Section 4.11(f), the Indenture Trustee shall, at the written direction of the Servicer or the Depositor, withdraw the amount of such tax from the Secondary Reserve Account Amount for any Distribution Date (after giving effect and pay such amount to the withdrawal Depositor. The Depositor shall pay such amount (or cause such amount to be paid) when due to the applicable taxing authority on behalf of the Secondary Reserve Account Draw Amount for such Distribution Date) exceeds the Required Secondary Reserve Account Amount for such Distribution Date, the Servicer shall instruct Trust. Neither the Indenture Trustee in writing to distribute nor the amount of such excess (i) first, Owner Trustee shall have any responsibility with respect to the Reserve Account to the extent calculation of any unfunded Reserve Account Deficiency on such Distribution Date (after giving effect to all deposits to tax due and withdrawals from payable under HB3 or the Reserve Account on such Distribution Date), (ii) second, be deposited into the Note Payment Account, for payment of principal of the Notes in the priority set forth in Section 2.8(b) of the Indenture, to the extent of any unfunded Regular Principal Distributable Amount, if any, on such Distribution Date (after giving effect to the application of Available Funds on such Distribution Date) and (iii) third, to the Certificate Payment Account for payment to the Certificateholderstax. The Indenture Trustee and the Owner Trustee hereby release, on each Distribution Date, release their security interest interests in, to and under any Secondary Reserve Account Property distributed paid to the CertificateholdersDepositor pursuant to this Section 4.11(d). Notwithstanding anything to the contrary contained herein, nothing in this Agreement should be read to imply that the Trust is doing business in Texas or has sufficient nexus with Texas in order for HB3 to apply to the Trust. (e) If (i) the Servicer obtains and delivers to the Indenture Trustee an Opinion of Counsel to the effect that the Trust is not subject to taxation under HB3 or (ii) the Note Balance, Balance and all other amounts owing or to be distributed hereunder or under the Indenture or the Trust Agreement to the Noteholders, or Noteholders and the Certificateholders, Certificateholders have been paid in full and the Trust has been terminated, the Indenture Trustee shall promptly withdraw from the Secondary Reserve Account and pay to the Certificateholders any remaining Secondary Reserve Account Property shall be distributed Property. (f) The Seller covenants and agrees that it will pay or will cause any member of its “combined group” (as such term is used under HB3) to pay when due all taxes imposed on it or any such other member under HB3. Notwithstanding anything to the Certificateholderscontrary contained herein, the Seller shall indemnify, defend and hold harmless the Trust from and against any loss, liability or expense incurred by reason of the Seller’s failure to perform its duties under this Section 4.11(f) (including any failure to cause any other member of its “combined group” to perform).