EXHIBIT 4.1
FORM OF POOLING AND SERVICING AGREEMENT FOR GRANTOR TRUSTS
INCLUDING FORM OF CERTIFICATES
EXHIBIT 4.1
BAY VIEW SECURITIZATION CORPORATION
Depositor
CALIFORNIA THRIFT & LOAN
Servicer
and
_____________________________
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of ________, 199_
$__________
BAY VIEW 199_-_ GRANTOR TRUST
$__________
_____% Class A Automobile Receivable Pass-Through Certificates
and
$__________
_____% Class B Automobile Receivable Pass-Through Certificates
TABLE OF CONTENTS
Page
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ARTICLE I. Creation of Trust............................................. 1
ARTICLE II. Conveyance of Receivables..................................... 1
SECTION 2.01 Conveyance of Initial Receivables............................. 1
SECTION 2.02 Conveyance of Subsequent Receivables.......................... 2
SECTION 2.03 Acceptance by Trustee......................................... 5
ARTICLE III. [Reserved].................................................... 6
ARTICLE IV. Acceptance by Trustee......................................... 6
ARTICLE V. Incorporation of Standard Terms and Conditions of Agreement... 6
ARTICLE VI. Special Definitions and Terms................................. 6
ARTICLE VII. Additional Representations and Warranties of the Depositor.... 8
ARTICLE VIII. Information Delivered to the Rating Agency.................... 10
ARTICLE IX. Agent for Service............................................. 11
Exhibit A - Form of Class A Automobile Receivable Pass-Through
Certificate
Exhibit B - Form of Class B Automobile Receivable Pass-Through
Certificate
Exhibit C - Form of Letter of Representations
Schedule A - Schedule of Receivables
Schedule B - Location of Receivables
Schedule C - Yield Supplement Amount
This POOLING AND SERVICING AGREEMENT, dated as of _______, 199_, is made
with respect to the formation of the BAY VIEW 199_-_ Grantor Trust, among BAY
VIEW SECURITIZATION CORPORATION, a Delaware corporation as depositor (the
"Depositor"), CALIFORNIA THRIFT & LOAN, a California corporation as servicer
(the "Servicer"), and _____________________, a ________ corporation, as trustee
(the "Trustee").
WITNESSETH THAT: 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 Pooling and Servicing Agreement by the parties
hereto, there is hereby created the Bay View 199_-_ Grantor Trust.
The parties hereto intend that this Agreement be construed so as to create
an "investment trust" formed to facilitate the direct investment by
Certificateholders in the assets of the Trust (other than the portion of such
assets beneficially owned by the Servicer or Depositor for federal income tax
purposes), within the meaning of Section 301.7701-4(c) of the regulations of the
U.S. Department of the Treasury, and not as a partnership or association taxable
as a corporation, and that the Servicer be treated as the beneficial owner of
the Cash Collateral Account and the Yield Supplement Amount for federal income
tax purposes.
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 CONVEYANCE OF INITIAL RECEIVABLES. In consideration of the
Trustee's delivery on the Closing Date to or upon the order of the Sellers of
Class A Certificates in an initial aggregate principal amount of $_________ and
Class B Certificates in an initial aggregate principal amount of $_______, the
Depositor does hereby sell, transfer, assign, set over and otherwise convey to
the Trustee in trust for the benefit of the Certificateholders, without recourse
(subject to the obligations set forth herein), all right, title and interest of
the Depositor in and to:
(a) the Initial Receivables and all moneys due thereon on or after the
Initial Cutoff Date, in the case of Precomputed Receivables, or all moneys
received thereon on and after the Initial Cutoff Date, in the case of Simple
Interest Receivables (but excluding Accrued Interest paid or due prior to the
Closing Date);
(b) the security interest in the Financed Vehicles granted by Obligors
pursuant to the Initial Receivables and any other interest of each Seller in
such Financed Vehicles;
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(c) any proceeds with respect to the Initial Receivables from claims on
any physical damage, lenders' collateral protection, theft, credit life or
disability insurance policies covering Financed Vehicles or Obligors;
(d) any Financed Vehicle that shall have secured any such Initial
Receivable and shall have been acquired by or on behalf of a Seller, the
Servicer or the Trust;
(e) the Pre-Funded Amount;
(f) all other assets comprising the estate of the Trust; and
(g) the proceeds of any and all of the foregoing.
SECTION 2.02. CONVEYANCE OF SUBSEQUENT RECEIVABLES.
(a) Subject to the conditions set forth in paragraph (b) below, in
consideration of the Trustee's delivery on the related Subsequent Transfer Date
to or upon the order of the Sellers of the amount described in Section 14.11 of
the Standard Terms, the Depositor does hereby sell, transfer, assign, set over
and otherwise convey to the Trustee in trust for the benefit of the
Certificateholders, without recourse (subject to the obligations set forth
herein), all right, title and interest of the Depositor in and to:
(1) the Subsequent Receivables listed on Schedule I to the related
Subsequent Transfer Assignment and all moneys due thereon on or after the
related Subsequent Cutoff Date, in the case of Precomputed Receivables, or
all money received thereon on and after the related Subsequent Cutoff Date,
in the case of Simple Interest Receivables;
(2) the security interests in the Finance Vehicles granted by Obligors
pursuant to such Subsequent Receivables and any other interest of Depositor
in such Financed Vehicles;
(3) any proceeds with respect to such Subsequent Receivables from
claims on any physical damage, credit life or disability insurance policies
covering the related Financed Vehicles or Obligors;
(4) any Financed Vehicle that shall have secured any such Subsequent
Receivable and shall have been acquired by or on behalf of Depositor, the
Servicer or the Trust; and
(5) the proceeds of any and all of the foregoing.
(b) (1) The Depositor shall transfer to the Trustee for the benefit of
the Certificateholders the Subsequent Receivables and the other property and
rights related thereto described in paragraph (a) above only upon the
satisfaction of each of the following conditions precedent on or prior to the
related Subsequent Transfer Date:
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(A) the Depositor shall have delivered to the Trustee a duly executed
Subsequent Transfer Assignment, which shall include supplements
to Schedule I listing the Subsequent Receivables conveyed to the
Trustee on such date;
(B) the Depositor shall have deposited in the Collection Account, to
the extent required by Section 5.01, all collections in respect
of the Subsequent Receivables;
(C) as of each Subsequent Transfer Date, (A) the Depositor shall not
be insolvent and shall not become insolvent as a result of the
transfer of Subsequent Receivables on such Subsequent Transfer
Date, (B) the Depositor shall not intend to incur or believe that
it will incur debts that would be beyond its ability to pay as
such debts mature, (C) such transfer shall not have been made
with actual intent to hinder, delay or defraud any Person and (D)
the assets of the Depositor shall not constitute reasonably small
capital to carry out its business as conducted;
(D) the applicable Reserve Account Initial Deposit for such
Subsequent Transfer Date shall have been made pursuant to Section
14.11 of the Standard Terms;
(E) the Funding Period shall not have terminated;
(F) the Subsequent Receivables transferred to the Trustee pursuant
hereto, including the Subsequent Receivables to be conveyed to
the Trustee on such Subsequent Transfer Date, shall meet the
following criteria (based on the characteristics of the Initial
Receivables on the Initial Cutoff Date and the Subsequent
Receivables on their respective Subsequent Cutoff Dates): (1) not
more than ___% of the Principal Balances of the Receivables
transferred to the Trustee shall represent used vehicles; (2) the
weighted average APR of the Receivables transferred to the
Trustee shall not be less than ___%; and (3) the weighted average
remaining term of the Receivables transferred to the Trustee,
including the Subsequent Receivables to be conveyed to the
Trustee on such Subsequent Transfer Date, shall not be greater
than ___ months;
(G) each of the representations and warranties made by the Sellers
pursuant to Section 12.01 of the Standard Terms shall be true and
correct with respect to the Subsequent Receivables as of the
related Subsequent Transfer Date, and the Depositor shall have
performed all obligations to be performed by them hereunder on or
prior to such Subsequent Transfer Date;
(H) the Depositor shall, at its own expense, on or prior to the
Subsequent Transfer Date, indicate in it its computer files that
the Subsequent Receivables identified in Schedule 1 to the
Subsequent Transfer Assignment have been sold to the Trustee
pursuant to this Agreement;
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(I) the Depositor shall have taken any action required to maintain
the first perfected ownership interest of the Trustee in the
Trust property, other than causing the certificates of title with
respect to the Financed Vehicles to be endorsed or otherwise
amended to identify the Trustee as the new secured party;
(J) no selection procedures believed by the Depositor to be adverse
to the interests of the Certificateholders shall have been
utilized in selecting the Subsequent Receivables;
(K) the addition of any such Subsequent Receivables shall not result
in a material adverse federal tax consequence to the Trust or the
Certificateholders; and
(L) the Depositor shall have delivered to the Trustee an Officers'
Certificate confirming the satisfaction of each condition
precedent specified in this paragraph (b)(1).
(2) In addition, any such conveyance of Subsequent Receivables made
on one or more Subsequent Transfer Dates occurring during any Collection Period
shall also be subject to the satisfaction of the following conditions
subsequent:
(A) On or before the fifteenth day (or if such fifteenth day is not a
Business Day, the next succeeding Business Day) of the month
following the end of such Collection Period;
(i) the Depositor shall have delivered to the Trustee and
the Rating Agencies a statement listing the aggregate Principal
Balance of the Subsequent Receivables conveyed to the Trustee
during such Collection Period and any other information
reasonably requested by any of the foregoing with respect to such
Subsequent Receivables; and
(ii) the Depositor shall have delivered (x) to the Rating
Agencies and Opinion of Counsel with respect to the transfer of
such Subsequent Receivables substantially in the form of, or
confirming, the Opinion of Counsel, delivered to the Rating
Agencies on the Closing Date and (y) to the Trustee the Opinion
of Counsel required by Section 22.02(i).
(B) On or before the fifteenth day (or if such fifteenth day is not a
Business Day, the next succeeding Business Day) of the month
following the month in which the Funding Period ends:
(i) each of the Rating Agencies shall have notified the
Depositor in writing that, following the conveyance of all the
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Subsequent Receivables to the Trustee, the Certificates continue
to be rated ________________ by such Rating Agency; and
(ii) the Depositor shall have delivered to the Trustee an
Officers' Certificate confirming the satisfaction of each
condition specified in this paragraph (b)(2).
The Depositor covenants that in the event any of the foregoing conditions
subsequent are not satisfied with respect to any Subsequent Receivable conveyed
by the Depositor to the Trustee on or prior to the date specified above, the
Depositor will immediately repurchase such Subsequent Receivable from the
Trustee, at a price equal to the Purchase Amount thereof, in the manner
specified in Section 12.02.
SECTION 2.03. ACCEPTANCE BY TRUSTEE. The Trustee hereby acknowledges the
sale, transfer and assignment of the Receivables, the Pre-Funded Amount and the
other assets of the Trust referred to in Section 2.01 and 2.02 and declares that
the Trustee holds and will hold the Receivables, the Pre-Funded Amount and such
other assets in trust, upon the terms herein set forth, for the use and benefit
of all present and future Certificateholders.
During the Funding Period, the Depositor shall sell to the Trust, and the
Trust shall purchase from the Depositor, Subsequent Receivables having an
aggregate principal balance equal to the Initial Pre-Funded Amount to the extent
that such Subsequent Receivables are available.
The Depositor covenants to transfer to the Trustee, pursuant to the
preceding paragraph, Subsequent Receivables with an aggregate Principal Balance
equal to the Initial Pre-Funded Amount. In the event that the Depositor shall
fail to deliver and sell to the trust any or all of such Subsequent Receivables,
any funds remaining in the Pre-Funding Account shall be distributed in
accordance with Section 14.11 to the Certificateholders as Monthly Principal on
the Distribution Date next following the end of the Funding Period; provided,
however, that the foregoing shall be the sole remedy of the Trustee or the
Certificateholders with respect to a failure of the Depositor to comply with
such covenant.
ARTICLE III
[RESERVED]
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ARTICLE IV
ACCEPTANCE BY TRUSTEE
The Trustee does hereby accept all consideration conveyed by the Depositor
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
Pooling and Servicing Agreement.
ARTICLE V
INCORPORATION OF STANDARD TERMS AND
CONDITIONS OF AGREEMENT
This Pooling and Servicing Agreement does hereby incorporate by reference
the Bay View Grantor Trusts Standard Terms and Conditions of Agreement dated as
of ___________, 199_ (the "Standard Terms"), in the form attached hereto.
ARTICLE VI
SPECIAL DEFINITIONS AND TERMS
Whenever used in the Standard Terms and in this Pooling and Servicing
Agreement, the following words and phrases shall have the following meanings:
"ACCRUED INTEREST" means all interest accrued on the Receivables prior to
the opening of business on the day following the Cutoff Date.
"ALTERNATIVE CASH COLLATERAL PERCENTAGE" shall mean, for any Distribution
Date, a percentage determined by deducting from [____]% the following fraction,
expressed as a percentage: (a) one minus (b) a fraction, the numerator of which
is the Class A Principal Balance with respect to such Distribution Date and the
denominator of which is the Pool Balance of the Receivables as of the last day
of the preceding Collection period.
"CLASS A PASS-THROUGH RATE" means ____% per annum, payable monthly at one-
twelfth of the annual rate.
"CLASS B PASS-THROUGH RATE" means ____% per annum, payable monthly at one-
twelfth of the annual rate.
"CLOSING DATE" means ________, 199_.
"CORPORATE TRUST OFFICE" at the date hereof is located at
_______________________, Attention: __________________________; the telecopy
number for the Corporate Trust Office on the date of the execution of this
Agreement is ( ) ___-____.
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"DISTRIBUTION DATE" shall be ____________.
"FUNDING PERIOD" means the period beginning on and including the Closing
Date and ending on the first to occur of (i) (a) the date on which the amount on
deposit in the Pre-Funding Account (after giving effect to any transfers
therefrom in connection with the transfer of Subsequent Receivables to the Trust
on such Distribution Date) is less than $100,000, (b) the date on which an Event
of Default occurs, or (c) an Insolvency Event occurs with respect to the
Depositor or (ii) the close of business on ___________, 199_.
"INITIAL CASH COLLATERAL AMOUNT" shall be $_________.
"INITIAL CLASS A PRINCIPAL BALANCE" means $______.
"INITIAL CLASS B PRINCIPAL BALANCE" means $______.
"INITIAL PRE-FUNDED AMOUNT" shall be $______.
"INITIAL CUTOFF DATE" means _________, 199_.
"ORIGINAL POOL BALANCE" means $________.
"REQUIRED CASH COLLATERAL AMOUNT" means on each Distribution Date, ____% of
the Certificate Principal Balance (after giving effect to any payment of Monthly
Principal on such Distribution Date) but not less than $________; provided
--------
however, that the Required Cash Collateral Amount shall be calculated using the
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Alternative Cash Collateral Percentage rather than ___%, (1) for each
Distribution Date on which either the average of the Net Loss Rates for the
three preceding Collection Periods exceeds [____]% or the average of the
Delinquency Rates for the three preceding Collection Periods exceeds [____]% and
(2) for each of the three Distribution Dates immediately following each
Distribution Date described in clause (1) above; provided further, that in no
----------------
event will the Required Cash Collateral Amount be greater than the Certificate
Principal Balance.
"SERVICING RATE" means 1.00% per annum, payable monthly at one-twelfth of
the annual rate, subject to adjustment with respect to a successor Servicer
pursuant to Section 19.02 of the Standard Terms.
"STATED FINAL DISTRIBUTION DATE" means ___________, 200_ in the case of the
Initial Receivables.
"TOTAL YIELD SUPPLEMENTAL DEPOSIT" means the amount specified as such in
Schedule C hereto.
"YIELD SUPPLEMENT AMOUNT" means, on any Distribution Date, the amount set
forth for such Distribution Date in Schedule C hereto.
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ARTICLE VII
ADDITIONAL REPRESENTATIONS AND WARRANTIES
OF THE DEPOSITOR
The Depositor does hereby make the following representations and warranties
on which the Trustee relies in accepting the Receivables in trust and executing
and authenticating the Certificates. Such representations and warranties speak
as of the execution and delivery of this Agreement and as of the Closing Date,
in the case of the Initial Receivables, and as of the applicable Subsequent
Transfer Date, in the case of the Subsequent Receivables, but shall survive the
sale, transfer and assignment of any Initial Receivables and Subsequent
Receivables to the Trustee.
(i) ORIGINAL NUMBER OF SCHEDULED PAYMENTS. Each Initial Receivable
shall have not less than 12 nor greater than __ monthly payments
scheduled at origination;
(ii) REMAINING MATURITY OF RECEIVABLES. Each Initial Receivable shall
have a remaining maturity of not more than __ months.
(iii) MINIMUM NOTE RATE. Each Initial Receivable shall have a contract
rate of interest (exclusive of prepaid finance charges) equal to
or greater than ___% (which, as supplemented by amounts available
from the Yield Supplement Account, is equal to or greater than
the sum of the weighted average of the Class A Pass-Through Rate
and the Class B Pass-Through Rate and the Servicing Rate) and
less than or equal to ___%;
(iv) WEIGHTED AVERAGE MATURITY. The Initial Receivables shall have a
scheduled weighted average maturity of not more than ___ months.
(v) SCHEDULED PAYMENTS. Each Initial Receivable shall be not more
than 30 days overdue as of the Cutoff Date;
(vi) INTEREST METHOD. Each Receivable shall provide for accrual of
interest according to the simple interest method or shall be a
Precomputed Receivable;
(vii) STATE OF ORIGINATION. Each Receivable shall have been originated
in the States of Arizona, California, Colorado, Illinois, New
Mexico, Nevada, Oregon or Texas.
(viii) LATEST FIRST PAYMENT DATE. No Initial Receivable shall have had a
first payment due after _____________.
(ix) LOCATION OF RECEIVABLE FILES. The Receivable Files shall be kept
at one or more of the locations listed in Schedule B hereto;
(x) COMPOSITION OF INITIAL RECEIVABLES. Each and every Initial
Receivable listed on Schedule A hereto shall arise from loans
originated only on automobiles, light
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trucks, motorcycles, vans or van conversions, at least ____% of
which (securing at least ___% of the Receivables by principal
balance) are new vehicles;
(xi) MARKING RECORDS. By the Closing Date, the Depositor will have
caused the portions of the electronic ledger or similar computer
records relating to the Initial Receivables conveyed by it to the
Trust hereunder to be clearly and unambiguously marked to show
that such Initial Receivables constitute part of the Trust in
accordance with the terms of the Trust created hereunder; and
(xii) PRECOMPUTED RECEIVABLES. Each Precomputed Receivable, in the
event of prepayment, provides for a prepayment amount that fully
pays the Principal Balance of such Receivables and includes a
full month's interest, in the month of prepayment, at the Note
Rate.
With respect to the Initial Receivables and the Subsequent Receivables, the
Depositor also makes the representations described in Section 12.01 of the
Standard Terms.
ARTICLE VIII
INFORMATION DELIVERED TO THE RATING AGENCY
(a) The Servicer hereby expresses its intention to deliver promptly to the
Rating Agency (i) a copy of each Servicer's Certificate that it delivers to the
Trustee pursuant to Section 13.09 of the Standard Terms, (ii) a copy of each
annual Officers' Certificate as to compliance and any notice of Default that it
delivers to the Trustee pursuant to Section 13.10 of the Standard Terms, (iii) a
statement for each Collection Period including delinquency and loss information
for the Receivables and the amount of Subsequent Receivables purchased from the
Depositor, (iv) written notice of any merger, consolidation, or other succession
of the Servicer, pursuant to Section 18.03 of the Standard Terms, or the
Depositor, pursuant to Section 17.03 of the Standard Terms, (v) a copy of each
amendment to the Agreement or the Standard Terms and (vi) any Opinion of Counsel
delivered to the Trustee pursuant to Section 22.02(i) of the Standard Terms.
(b) The Trustee hereby expresses its intention to deliver promptly to the
Rating Agency (i) a copy of each statement or notification to Certificateholders
delivered pursuant to Section 14.07, 19.03 or 20.10 of the Standard Terms, (ii)
a copy of each annual certified public accountant's report received by the
Trustee pursuant to Section 13.11 of the Standard Terms, (iii) a copy of each
amendment to the Agreement and (iv) a copy of the notice of termination of the
Trust provided to Certificateholders pursuant to Section 21.01 of the Standard
Terms.
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(c) For purposes of delivery pursuant to paragraphs (a) and (b) of this
Article VIII, the address for the Rating Agencies are:
Structured Finance/Asset Backed Surveillance Group
Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
Attention: ABS Monitoring Department
4th Floor
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(d) The provisions of this Article VIII are included herein for
convenience of reference only and shall not be construed to be contractual
undertakings or obligations. The failure of the Servicer or the Trustee to
comply with any or all of the provisions of this Article VIII shall not
constitute an Event of Default or a default of any kind under this Pooling and
Servicing Agreement or make any remedy available to any Person.
ARTICLE IX
AGENT FOR SERVICE
The agent for service for the Depositor shall be Xxxxxx X. Xxxx, Secretary
of the Depositor. Any and all service on the agent for service of the Depositor
shall be sent to Bay View Securitization Corporation, 0000 Xxxxx Xx Xxxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
The agent for service for the Servicer shall be Xxxxxxx Xxxxxxxx, President
of the Servicer. Any and all service on the agent for service of the Servicer
shall be sent to California Thrift & Loan, 000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx
00000.
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IN WITNESS WHEREOF, the parties hereto have cause this Pooling and
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
BAY VIEW SECURITIZATION CORPORATION
as Depositor
By:_____________________________________
Name:___________________________________
Title:__________________________________
CALIFORNIA THRIFT & LOAN
as Servicer
By:_____________________________________
Name:___________________________________
Title:__________________________________
[____________________]
as Trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
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EXHIBIT A
[FORM OF CLASS A CERTIFICATE]
PRINCIPAL IN RESPECT OF THIS CLASS A CERTIFICATE IS DISTRIBUTABLE MONTHLY AS SET
FORTH HEREIN. ACCORDINGLY, THE UNPAID PRINCIPAL AMOUNT OF THE FRACTIONAL
INTEREST EVIDENCED HEREBY AT ANY TIME MAY BE LESS THAN THE ORIGINAL PRINCIPAL
AMOUNT SET FORTH HEREIN.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
BAY VIEW 199_-_ GRANTOR TRUST
_____% CLASS A AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of simple and precomputed interest
installment loan and security agreements and installment sales contracts
secured by new and used automobiles, light trucks and vans. The contracts
were or will be sold to the Trustee by Bay View Securitization Corporation.
(This Certificate does not represent an interest in or obligation of Bay
View Securitization Corporation or any of its affiliates. Neither this
Certificate nor the underlying Receivables, as defined below, are insured
or guaranteed by any government agency).
NUMBER
R-___ CUSIP _________
$-------------
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THIS CERTIFIES THAT ____________ is the registered owner of a
_____________ dollars nonassessable, fully-paid, fractional undivided interest
in the Bay View 199_-_ Grantor Trust (the "Trust") formed by Bay View
Securitization Corporation, a Delaware corporation (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement dated as of
_____________, 199__ (the "Agreement") between Bay View Securitization
Corporation as Depositor, California Thrift & Loan, as Servicer and
_____________________ (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. A copy of the Agreement may be examined
during normal business hours at the Corporate Trust Office of the Trustee by any
Certificateholder upon request. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in the
Agreement. This Certificate is one of the duly authorized Certificates
designated as "____% Class A Automobile Receivable Pass-Through Certificates"
(the "Class A Certificates"). This Certificate is issued under and is subject
to the terms, provisions, and conditions of the Agreement, to which Agreement
the holder of this Certificate by virtue of the acceptance hereof assents and by
which such holder is bound. The property of the Trust includes a pool of simple
and precomputed interest loan and security agreements and installment sales
contracts for new and used automobiles, motorcycles, light trucks, vans and van
conversions (the "Receivables"), all monies paid thereon, and all monies due
thereon, including Accrued Interest, after _________, 199_ (but excluding
Accrued Interest paid or due prior to the Closing Date), security interests in
the vehicles financed thereby, certain bank accounts and the proceeds thereof,
all documents contained in the Receivable Files, any property that shall have
secured a Receivable and that shall have been acquired by or on behalf of the
Trust, any Liquidation Proceeds, any rights of the Depositor in proceeds from
claims or refunds of premiums on physical damage, collateral protection, credit
life, disability and hospitalization insurance policies, if any, covering
vehicles financed thereby and the obligors thereunder, the interest of the
Depositor in recourse to dealers relating to certain of the Receivables, the
proceeds of all of the foregoing and amounts on deposit from time to time in the
Pre-Funding Account, the Yield Supplement Account and the Cash Collateral
Account.
Under the Agreement, there will be distributed on the first Business
Day after the 10th day of each month (the "Distribution Date"), commencing
_____________, 199__, to the person in whose name this Class A Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), such
Certificateholder's fractional interest in Class A Monthly Interest and Class A
Monthly Principal. Each Class A Certificateholder's "fractional interest" is
equal to the original principal amount of such Class A Certificateholder's
Certificate, as set forth on the face thereof, divided by the aggregate original
principal amount of all of the Certificates.
Distributions on this Class A Certificate will be made by the Trustee
by check mailed to the Person entitled thereto without the presentation or
surrender of this Class A Certificate or the making of any notation hereon,
except that with respect to Certificates registered in the name of CEDE & Co.,
the nominee registrant for The Depository Trust Company, payments will be made
in the form of 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 and only upon presentation and surrender of this Class A
Certificate at the office or agency maintained for that purpose by the Trustee
in the Borough of Manhattan, The City of New York.
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Unless the certificate of authentication hereon shall have been
executed by a Responsible Officer of the Trustee, by manual or facsimile
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 an obligation of, or an
interest in, the Depositor or any affiliate of the Depositor. The Class A
Certificates are limited in right of payment to funds on deposit in the Pre-
Funding Account, certain collections and recoveries respecting the Receivables
and certain amounts in the Yield Supplement Account, all as more specifically
set forth in the Agreement. The Agreement provides for certain amounts to be
deposited into the Cash Collateral Account. The limited amount available from
the Cash Collateral Account may not be sufficient to make required distributions
on the Class A Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Class A Certificateholders under the Agreement
at any time by the Depositor and the Trustee with the consent of the Holders of
Certificates evidencing not less than 51% of the Certificate Principal Balance.
Any such consent by the Holder of this Class A Certificate shall be conclusive
and binding on such Holder and on all future Holders of this Class A Certificate
and of any Class A Certificate issued upon the transfer hereof or in exchange
heretofore 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
therein set forth, 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 the Borough of Manhattan, The City of New York, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Class A
Certificates of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee.
The Class A Certificates are issuable only as registered Class A
Certificates without coupons in denominations of $1,000 and integral multiples
thereof; provided, however, that one Class A Certificate may be issued in a
-----------------
denomination that represents any residual amount and that such Class A
Certificate shall be retained by the Depositor. As provided in the Agreement
and subject to certain limitations therein set forth, Class A Certificates are
exchangeable for new Class A Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the holder surrendering the
same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee 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
-14-
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 obligations and responsibilities to the Class A Certificateholders
created by the Agreement and the Trust created thereby shall terminate upon the
payment to Class A 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. The Servicer of the Receivables may at its option purchase the corpus
of the Trust at a price specified in the Agreement, and such purchase of the
Receivables and other property will effect early retirement of the Class A
Certificates; however, such right of purchase is exercisable only as of a Record
Date as of which the Certificate Principal Balance is less than or equal to 10%
of the original aggregate principal balance of the Receivables.
No recourse shall be had for the payment of the principal of or
interest on this Certificate, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Agreement, against any
incorporator, stockholder, officer or director, as such, past, present, or
future, of the Depositor or Servicer or of any successor at law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
Although this Class A Certificate summarizes certain provisions of the
Agreement, 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 obligations of the Trustee. In the event of any
inconsistency or conflict between the terms of this Class A Certificate and the
terms of the Agreement, the terms of the Agreement shall control.
-15-
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class A Certificate to be duly executed.
Dated: ____________, 199_ BAY VIEW 199_-_ GRANTOR TRUST
BY:_____________________________________
as Trustee
BY:_____________________________________
Responsible Officer
-16-
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A CERTIFICATES
REFERRED TO IN THE WITHIN-MENTIONED
AGREEMENT
[___________________]
AS TRUSTEE
DATED:_____________, 199_ BY:____________________________________
Responsible Officer
-17-
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:
_______________________________________
Signature Guaranteed:
*
________________________________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Class A Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank,
trust company, savings bank or other savings and loan institution.
-18-
EXHIBIT B
[FORM OF CLASS B CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO THE CLASS A
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
PRINCIPAL IN RESPECT OF THIS CLASS B CERTIFICATE IS DISTRIBUTABLE MONTHLY AS SET
FORTH HEREIN. ACCORDINGLY, THE UNPAID PRINCIPAL AMOUNT OF THE FRACTIONAL
INTEREST EVIDENCED HEREBY AT ANY TIME MAY BE LESS THAN THE ORIGINAL PRINCIPAL
AMOUNT SET FORTH HEREIN.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
BAY VIEW 199_-_ GRANTOR TRUST
____% CLASS B AUTOMOBILE RECEIVABLE PASS-THROUGH CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of simple and precomputed interest
installment loan and security agreements and installment sales contracts
secured by new and used automobiles, motorcycles, light trucks and vans.
The contracts were sold to the Trustee by Bay View Securitization
Corporation.
(This Certificate does not represent an interest in or obligation of Bay
View Securitization Corporation or any of its affiliates. Neither this
Certificate nor the underlying Receivables, as defined below, are insured
or guaranteed by any government agency).
NUMBER CUSIP ______________
R-___ $--------------
EXA-2-1
THIS CERTIFIES THAT ____________ is the registered owner of a _____________
dollars nonassessable, fully-paid, fractional undivided interest in the Bay View
199_-_ Grantor Trust (the "Trust") formed by Bay View Securitization
Corporation, a Delaware corporation (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of ______________, 199_
(the "Agreement") between Bay View Securitization Corporation as Depositor,
California Thrift & Loan, as Servicer and _______________ (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth below. A
copy of the Agreement may be examined during normal business hours at the
Corporate Trust Office of the Trustee by any Certificateholder upon request. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in the Agreement. This Certificate is one of the
duly authorized Certificates designated as "____% Class B Automobile Receivable
Pass-Through Certificates" (the "Class B Certificates"). This Certificate is
issued under and is subject to the terms, provisions, and conditions of the
Agreement, to which Agreement the holder of this Certificate by virtue of the
acceptance hereof assents and by which such holder is bound. The property of the
Trust includes a pool of simple and precomputed interest loan and security
agreements and installment sales contracts for new and used automobiles, light
trucks, vans and van conversions (the "Receivables"), monies paid thereon, and
all monies due thereon, including Accrued Interest, after ___________, 199__
(but excluding Accrued Interest paid or due prior to the Closing Date), security
interests in the vehicles financed thereby, certain bank accounts and the
proceeds thereof, all documents contained in the Receivable Files, any property
that shall have secured a Receivable and that shall have been acquired by or on
behalf of the Trust, any Liquidation Proceeds, any rights of the Depositor in
proceeds from claims or refunds of premiums on physical damage, lender's
collateral protection, credit life, disability and hospitalization insurance
policies covering vehicles financed thereby and the obligors thereunder, the
interest of the Depositor in recourse to dealers relating to certain of the
Receivables, the proceeds of all of the foregoing and amounts on deposit from
time to time in the Pre-Funding Account, the Yield Supplement Account and the
Cash Collateral Account.
Under the Agreement, there will be distributed on the first Business Day
after the 10th day of each month (the "Distribution Date"), commencing on
_____________, 199__, to the person in whose name this Class B Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), such
Certificateholder's fractional interest in Class B Monthly Interest and Class B
Monthly Principal to the extent of funds available therefor. Each Class B
Certificateholder's "fractional interest" is equal to the original principal
amount of such Class B Certificateholder's Certificate, as set forth on the face
thereof, divided by the aggregate original principal amount of all of the
Certificates. This Class B Certificate is subordinated in the right of payment
to the Class A Certificates as described in the Agreement.
Distributions on this Class B Certificate will be made by the Trustee by
check mailed to the Person entitled thereto without the presentation or
surrender of this Class B Certificate or the making of any notation hereon,
except that with respect to Certificates registered in the name of CEDE & Co.,
the nominee registrant for The Depository Trust Company, payments will be made
in the form of 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 and only upon presentation and
EXA-2-2
surrender of this Class B Certificate at the office or agency maintained for
that purpose by the Trustee in the Borough of Manhattan, The City of New York.
Unless the certificate of authentication hereon shall have been executed by
a Responsible Officer of the Trustee, by manual or facsimile 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 an obligation of, or an interest
in, the Depositor or any affiliate of the Depositor. The Class B Certificates
are limited in right of payment to certain collections and recoveries respecting
the Receivables and certain amounts in the Yield Supplement Account, all as more
specifically set forth in the Agreement. The Agreement provides for certain
amounts to be deposited into the Cash Collateral Account. The limited amount
available from the Cash Collateral Account may not be sufficient to make
required distributions on the Class B Certificates.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Class B Certificateholders under the Agreement
at any time by the Depositor and the Trustee with the consent of the Holders of
Certificates evidencing not less than 51% of the Certificate Principal Balance.
Any such consent by the Holder of this Class B Certificate shall be conclusive
and binding on such Holder and on all future Holders of this Class B Certificate
and of any Class B Certificate issued upon the transfer hereof or in exchange
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 therein set
forth, 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 the Borough of Manhattan, The City of New York, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Class 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 issuable only as registered Class B
Certificates without coupons in denominations of $1,000 and integral multiples
thereof; provided, however, that one Class B Certificate may be issued in a
-----------------
denomination that represents any residual amount and that such Class B
Certificate shall be retained by the Depositor. As provided in the Agreement
and subject to certain limitations therein set forth, Class B Certificates are
exchangeable for new Class B Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the holder surrendering the
same.
No service charge will be made for any such registration 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.
EXA-2-3
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 obligations and responsibilities to the Class B Certificateholders
created by the Agreement and the Trust created thereby shall terminate upon the
payment to Class B 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. The Servicer of the Receivables may at its option purchase the
corpus of the Trust at a price specified in the Agreement, and such purchase of
the Receivables and other property of the Trust will effect early retirement of
the Class B Certificates; however, such right of purchase is exercisable only as
of a Record Date as of which the Certificate Principal Balance is less than or
equal to 10% of the original aggregate principal balance of the Receivables.
No recourse shall be had for the payment of the principal of or interest on
this Certificate, or for any claim based hereon, or otherwise in respect hereof,
or based on or in respect of the Agreement, against any incorporator,
stockholder, officer or director, as such, past, present, or future, of the
Depositor or Servicer or of any successor at law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Although this Class B Certificate summarizes certain provisions of the
Agreement, 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 obligations of the Trustee. In the event of any
inconsistency or conflict between the terms of this Class B Certificate and the
terms of the Agreement, the terms of the Agreement shall control.
EXA-2-4
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class B Certificate to be duly executed.
Dated: ____________, 199_ BAY VIEW 199_-_ GRANTOR TRUST
BY:_____________________________________
as Trustee
BY:_____________________________________
Responsible Officer
EXA-2-5
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES
REFERRED TO IN THE WITHIN-MENTIONED
AGREEMENT
[_____________________]
AS TRUSTEE
DATED:____________, 199_ BY:_____________________________________
Responsible Officer
EXA-2-6
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:
________________________________
Signature Guaranteed:
_______________________________*
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Class B Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member of the New York Stock Exchange or a commercial bank,
trust company, savings bank or other savings and loan institution.
EXA-2-7
EXHIBIT C
FORM OF LETTER OF REPRESENTATIONS
EXA-2-8
SCHEDULE A
TO THE POOLING AND
SERVICING AGREEMENT
SCHEDULE OF RECEIVABLES
Depositor Name of
Account Number Obligor Amount Financed
-------------- -------- ---------------
(as of the Cutoff Date)
$
A COPY OF THE SCHEDULE OF RECEIVABLES, INCLUDING THE
ABOVE CAPTIONED INFORMATION WITH RESPECT TO EACH
RECEIVABLE, WAS DELIVERED TO THE TRUSTEE WITH A
COUNTERPART OF THE POOLING AND SERVICING AGREEMENT.
EXA-3-1
SCHEDULE B
TO THE POOLING AND
SERVICING AGREEMENT
The Receivables will be held at the following California Thrift & Loan
locations:
000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx 00000-0000
000 X. 00xx Xxxxxx, #000
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
0000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000-0000
0000 Xxxxxxxxx Xxxx., #0
Xxxxxxxx, Xxxxxxxxxx 00000-0000
0000 Xxxxxxx Xxxxxx Xxxx.
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
SCHEDULE C
TO THE POOLING AND
SERVICING AGREEMENT
YIELD SUPPLEMENT AMOUNT
Yield
Distribution Date Supplement Amount
----------------- -----------------
Total Yield
Supplement Deposit: $
EXA-3-3
