Exhibit 4.1
POOLING AND SERVICING
AGREEMENT
between
BANK ONE, TEXAS, N.A.,
as
Seller and Servicer
and
BANKERS TRUST COMPANY,
as Trustee,
On behalf of the Certificateholders,
and as Collateral Agent
Dated as of May 31, 1997
Banc One Auto Grantor Trust 1997-A
$___________________ Class A _______% Asset Backed Certificates
$__________________ Class B _______% Asset Backed Certificates
TABLE OF CONTENTS
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Page
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ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions..................................................1
SECTION 1.2. Usage of Terms..............................................17
SECTION 1.3. Calculations................................................17
SECTION 1.4. References..................................................17
SECTION 1.5. References to the Trust.....................................17
SECTION 1.6. Action by or Consent of Certificateholders..................17
ARTICLE II.
THE TRUST PROPERTY
SECTION 2.1. Conveyance of Trust Property................................18
SECTION 2.2. Representations and Warranties as to Each Receivable........18
SECTION 2.3. Repurchase upon Breach......................................21
SECTION 2.4. Custody of Receivable Files.................................22
SECTION 2.5. Duties of Servicer as Custodian.............................22
SECTION 2.6. Instructions; Authority To Act..............................23
SECTION 2.7. Custodian's Indemnification.................................23
SECTION 2.8. Effective Period and Termination............................24
ARTICLE III.
ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY
SECTION 3.1. Duties of Servicer..........................................25
SECTION 3.2. Collection and Allocation of Receivable Payments............25
SECTION 3.3. Realization upon Receivables................................26
SECTION 3.4. Physical Damage Insurance...................................26
SECTION 3.5. Maintenance of Security Interests in Financed Vehicles......26
SECTION 3.6. Covenants of Servicer.......................................26
SECTION 3.7. Purchase of Receivables upon Breach.........................27
SECTION 3.8. Servicing Fee...............................................27
SECTION 3.9. Servicer's Certificate......................................27
SECTION 3.10. Annual Statement as to Compliance; Notice of Default........27
SECTION 3.11. Annual Independent Certified Public Accountants' Report.....28
SECTION 3.12. Access to Certain Documentation and Information Regarding
Receivables.................................................28
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SECTION 3.13. Servicer Expenses...........................................28
SECTION 3.14. Appointment of Subservicer..................................28
ARTICLE IV.
DISTRIBUTIONS; RESERVE FUND;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 4.1. Establishment of Accounts...................................29
SECTION 4.2. Collections.................................................32
SECTION 4.3. Additional Deposits.........................................32
SECTION 4.4. Net Deposits................................................32
SECTION 4.5. Distributions...............................................32
SECTION 4.6. Reserve Fund................................................34
SECTION 4.7. Statements to Certificateholders............................35
ARTICLE V.
[INTENTIONALLY OMITTED]
ARTICLE VI.
THE CERTIFICATES
SECTION 6.1. The Certificates............................................37
SECTION 6.2. Authentication and Delivery of Certificates.................37
SECTION 6.3. Registration of Transfer and Exchange of Certificates.......38
SECTION 6.4. Reserved....................................................39
SECTION 6.5. Reserved....................................................39
SECTION 6.6 Mutilated, Destroyed, Lost or Stolen Certificates...........39
SECTION 6.7. Persons Deemed Owners.......................................39
SECTION 6.8. Access to List of Certificateholders' Names and Addresses...39
SECTION 6.9. Maintenance of Office or Agency.............................39
SECTION 6.10. Book-Entry Certificates.....................................40
SECTION 6.11. Notices to Clearing Agency..................................41
SECTION 6.12. Definitive Certificates.....................................41
ARTICLE VII.
THE SELLER
SECTION 7.1. Representations of Seller...................................42
SECTION 7.2. Continued Existence.........................................43
SECTION 7.3. Liability of Seller; Indemnities............................43
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SECTION 7.4. Merger or Consolidation of, or Assumption of
the Obligations of, Seller.................................44
SECTION 7.5. Limitation on Liability of Seller and Others................45
SECTION 7.6. Seller May Own Certificates.................................45
ARTICLE VIII.
THE SERVICER
SECTION 8.1. Representations of Servicer.................................45
SECTION 8.2. Indemnities of Servicer.....................................47
SECTION 8.3. Merger or Consolidation of, or Assumption of
the Obligations of, Servicer...............................47
SECTION 8.4. Limitation on Liability of Servicer and Others..............48
SECTION 8.5. Bank One, Texas, N.A. Not To Resign as Servicer.............48
SECTION 8.7. Tax Accounting..............................................49
ARTICLE IX.
SERVICING TERMINATION
SECTION 9.1. Events of Servicing Termination.............................49
SECTION 9.2. Appointment of Successor....................................51
SECTION 9.3. Payment of Servicing Fee....................................51
SECTION 9.4. Notification to Certificateholders..........................51
SECTION 9.5. Waiver of Past Events of Servicing Termination..............51
ARTICLE X.
THE TRUSTEE
SECTION 10.1. Acceptance by Trustee.......................................52
SECTION 10.2. Duties of Trustee...........................................52
SECTION 10.3. Trustee's Certificate.......................................53
SECTION 10.4. Trustee's Assignment of Purchased Receivables...............54
SECTION 10.5. Certain Matters Affecting the Trustee.......................54
SECTION 10.6. Trustee Not Liable for Certificates or Receivables..........55
SECTION 10.7. Trustee May Own Certificates................................56
SECTION 10.8. Trustee's Fees and Expenses.................................56
SECTION 10.9. Eligibility Requirements for Trustee........................57
SECTION 10.10. Resignation or Removal of Trustee...........................57
SECTION 10.11. Successor Trustee...........................................58
SECTION 10.12. Merger or Consolidation of Trustee..........................58
SECTION 10.13. Appointment of Co-Trustee or Separate Trustee...............59
SECTION 10.14. Representations and Warranties of Trustee...................60
SECTION 10.15. Reports by Trustee..........................................60
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SECTION 10.16. Tax Accounting..............................................60
SECTION 10.17. Trustee May Enforce Claims Without
Possession of Certificates................................61
ARTICLE XI.
TERMINATION
SECTION 11.1. Termination of the Trust....................................61
SECTION 11.2. Optional Purchase of All Receivables........................62
ARTICLE XII.
MISCELLANEOUS PROVISIONS
SECTION 12.1. Amendment...................................................62
SECTION 12.2. Protection of Title to Trust................................63
SECTION 12.3. Limitation on Rights of Certificateholders..................65
SECTION 12.4. Governing Law...............................................65
SECTION 12.5. Notices.....................................................66
SECTION 12.6. Severability of Provisions..................................66
SECTION 12.7. Assignment..................................................66
SECTION 12.8. Certificates Nonassessable and Fully Paid...................66
SECTION 12.9. Intention of Parties........................................66
SECTION 12.10. Counterparts................................................67
SECTION 12.11. Collateral Agent Protection.................................67
SECTION 12.12. Limitation of Liability of Trustee and Collateral Agent.....67
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SCHEDULES
Schedule A - Schedule of Receivables
Schedule B - Location of Receivable
EXHIBITS
Exhibit A - Form of Class A Certificate
Exhibit B - Form of Class B Certificate
Exhibit C - Form of Servicer's Certificate
Exhibit D - Form of Monthly Statement to Certificateholders
Exhibit E - Form of Benefit Plan Affidavit
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POOLING AND SERVICING AGREEMENT dated as of May 31,
1997 (the "Agreement"), between Bank One, Texas, N.A., a
national banking association (in its capacity as
Seller, the "Seller" or in its capacity as Servicer, the
"Servicer"), and Bankers Trust Company, a New York
banking corporation, as trustee hereunder (the "Trustee")
and as collateral agent with respect to the Reserve Fund
(the "Collateral Agent").
In consideration of the premises and of the mutual agreements
herein contained, and other good and valuable consideration, the receipt of
which is acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
ARTICLE I.
Definitions
SECTION 1.1. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, whenever
capitalized shall have the following meanings:
"Accounts" has the meaning specified in Section 4.1(a)(ii).
"Account Property" means all amounts and investments held from
time to time in any Account or the Reserve Fund, as the case may be (whether in
the form of deposit accounts, Physical Property, book-entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Affiliated Bank" means each of Bank One, N.A., Bank One,
Wisconsin, Bank One, Indiana, N.A. and Bank One, Illinois, N.A.
"Aggregate Net Losses" means, with respect to a Collection
Period, the aggregate principal balance of all Receivables newly designated
during such Collection Period as Liquidated Receivables minus Liquidation
Proceeds collected during such Collection Period with respect to all Liquidated
Receivables and any Recoveries collected during such Collection Period.
"Agreement" means, this Pooling and Servicing Agreement, as the
same may be amended and supplemented from time to time.
"Amount Financed" means, with respect to any Receivable, the
amount advanced under such Receivable toward the purchase price of the related
Financed Vehicle, the payment of any physical damage or theft insurance premiums
and any related costs and shown as such in the Contract evidencing such
Receivable.
"APR" or "Annual Percentage Rate" of a Receivable means the
annual rate of finance charges stated in the related Contract expressed as a
percentage.
"Authorized Officer" means (i) with respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any vice
president, assistant vice president, second vice president, secretary, assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject and (ii) with respect to the Servicer, any officer of the
Servicer who is authorized to act for the Servicer in matters relating to the
Trust and who is identified on the list of Authorized Officers delivered by the
Servicer to the Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
"Book-Entry Certificates" mean beneficial interests in the
definitive Certificates described in Section 6.10, the ownership of which shall
be evidenced, and transfers of which shall be made, through book entries by a
Clearing Agency as described in Section 6.10.
"Business Day" means a day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in New York, New York or
Dallas, Texas or the city in which the Corporate Trust Office is located are
authorized by law, regulation, executive order or governmental decree to be
closed.
"Certificate" means any Class A Certificate or Class B
Certificate.
"Certificate Owner" means, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules, regulations and procedures of such
Clearing Agency).
"Certificate Register" means the register maintained by the
Trustee for the registration of Certificates and of transfers and exchanges of
Certificates as provided in Section 6.3.
"Certificateholder" or "Holder" means the Person in whose name a
Certificate shall be registered in the Certificate Register, except that, solely
for the purpose of giving any consent, request or waiver pursuant to this
Agreement, the interest evidenced by any Certificate registered in the name of
the Seller, the Servicer or any Person actually known to an Authorized Officer
of the Trustee to be an Affiliate of the Seller or the Servicer, shall not be
taken into
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account in determining whether the requisite percentage necessary to effect any
such consent, request or waiver shall have been obtained.
"Charge-off Rate" means, with respect to a Collection Period the
Aggregate Net Losses with respect to the Receivables expressed, on an annualized
basis, as a percentage of the average of (x) the Pool Balance on the last day of
the immediately preceding Collection Period and (y) the Pool Balance on the last
day in such Collection Period.
"Class A Certificate" means a certificate executed by the Trustee
on behalf of the Trust and authenticated by the Trustee, substantially in the
form of Exhibit A hereto.
"Class A Certificateholder" or "Class A Holder" means the Person
in whose name a Class A Certificate shall be registered in the Certificate
Register, except that, solely for the purpose of giving any consent, request or
waiver pursuant to this Agreement, the interest evidenced by any Class A
Certificate registered in the name of the Seller, the Servicer or any Person
actually known to an Authorized Officer of the Trustee to be an Affiliate of the
Seller or the Servicer, shall not be taken into account in determining whether
the requisite percentage necessary to effect any such consent, request or waiver
shall have been obtained.
"Class A Distribution Account" means the account established and
maintained as such pursuant to Section 4.1.
"Class A Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of Class A Monthly Interest for the preceding
Distribution Date and any outstanding Class A Interest Carryover Shortfall on
such preceding Distribution Date, over the amount in respect of interest that is
actually deposited in the Class A Distribution Account on such preceding
Distribution Date, plus 30 days of interest on such excess, to the extent
permitted by law, at the Class A Pass-Through Rate.
"Class A Interest Distribution" means, with respect to any
Distribution Date, the sum of Class A Monthly Interest for such Distribution
Date and the Class A Interest Carryover Shortfall for such Distribution Date.
"Class A Monthly Interest" means, with respect to any
Distribution Date, one-twelfth (or, in the case of the first Distribution Date,
a fraction, the numerator of which is ___ and the denominator of which is 360)
of the product of the Class A Pass-Through Rate and the Class A Principal
Balance as of the Distribution Date occurring in the preceding Collection Period
(after giving effect to any payments made on such Distribution Date) or, in the
case of the first Distribution Date, the Original Class A Principal Balance.
"Class A Monthly Principal" means, with respect to any
Distribution Date, the Class A Percentage of Principal Collections for such
Distribution Date plus the Class A Percentage of Realized Losses with respect to
Receivables which became Liquidated Receivables during the related Collection
Period.
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"Class A Pass-Through Rate" means _____% per annum, calculated on
the basis of a 360-day year consisting of twelve 30-day months.
"Class A Percentage" means _____%.
"Class A Pool Factor" as of the close of business on a
Distribution Date means a seven-digit decimal figure equal to the Class A
Principal Balance (after giving effect to any distributions made on such
Distribution Date) divided by the Original Class A Principal Balance.
"Class A Principal Balance" equals the Original Class A Principal
Balance, as reduced by all amounts allocable to principal on the Class A
Certificates previously distributed to Class A Certificateholders.
"Class A Principal Carryover Shortfall" means, with respect to
any Distribution Date, the excess of Class A Monthly Principal for the preceding
Distribution Date and any outstanding Class A Principal Carryover Shortfall on
such preceding Distribution Date over the amount in respect of principal that is
actually deposited in the Class A Distribution Account on such preceding
Distribution Date.
"Class A Principal Distribution" means, with respect to any
Distribution Date (including the Final Scheduled Distribution Date), the sum of
Class A Monthly Principal for such Distribution Date and the Class A Principal
Carryover Shortfall for such Distribution Date; provided, however, that the
Class A Principal Distribution shall not exceed the Class A Principal Balance
immediately prior to such Distribution Date. In addition, on the Final Scheduled
Distribution Date, the principal required to be deposited in the Class A
Distribution Account will include the lesser of (a) any principal due and
remaining unpaid on each Receivable in the Trust as of the Final Scheduled
Maturity Date or (b) the portion of the amount required to be deposited under
clause (a) above that is necessary (after giving effect to the other amounts to
be deposited in the Class A Distribution Account on such Distribution Date and
allocable to principal) to reduce the Class A Principal Balance to zero.
"Class B Certificate" means a certificate executed by the Trustee
on behalf of the Trust and authenticated by the Trustee, substantially in the
form of Exhibit B hereto.
"Class B Certificateholder" or "Class B Holder" means the Person
in whose name a Class B Certificate shall be registered in the Certificate
Register, except that, solely for the purpose of giving any consent, request or
waiver pursuant to this Agreement, the interest evidenced by any Class B
Certificate registered in the name of the Seller, the Servicer or any Person
actually known to an Authorized Officer of the Trustee to be an Affiliate of the
Seller or the Servicer, shall not be taken into account in determining whether
the requisite percentage necessary to effect any such consent, request or waiver
shall have been obtained.
"Class B Distribution Account" means the account established and
maintained as such pursuant to Section 4.1.
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"Class B Interest Carryover Shortfall" means, with respect to any
Distribution Date, the excess of Class B Monthly Interest for the preceding
Distribution Date and any outstanding Class B Interest Carryover Shortfall on
such preceding Distribution Date, over the amount in respect of interest that is
actually deposited in the Class B Distribution Account on such preceding
Distribution Date, plus 30 days of interest on such excess, to the extent
permitted by law, at the Class B Pass-Through Rate.
"Class B Interest Distribution" means, with respect to any
Distribution Date, the sum of Class B Monthly Interest for such Distribution
Date and the Class B Interest Carryover Shortfall for such Distribution Date.
"Class B Monthly Interest" means, with respect to any
Distribution Date, one-twelfth (or, in the case of the first Distribution Date,
a fraction, the numerator of which is ___ and the denominator of which is 360)
of the product of the Class B Pass-Through Rate and the Class B Principal
Balance as of the Distribution Date occurring in the preceding Collection Period
(after giving effect to any payments made on such Distribution Date) or, in the
case of the first Distribution Date, the Original Class B Principal Balance.
"Class B Monthly Principal" means, with respect to any
Distribution Date, the Class B Percentage of Principal Collections for such
Distribution Date plus the Class B Percentage of Realized Losses with respect to
Receivables which became Liquidated Receivables during the related Collection
Period.
"Class B Pass-Through Rate" means _____% per annum, calculated on
the basis of a 360-day year consisting of twelve 30-day months.
"Class B Percentage" means ____%.
"Class B Pool Factor" as of the close of business on a
Distribution Date means a seven-digit decimal figure equal to the Class B
Principal Balance (after giving effect to any distributions made on such
Distribution Date) divided by the Original Class B Principal Balance.
"Class B Principal Balance" equals the Original Class B Principal
Balance, as reduced by all amounts allocable to principal on the Class B
Certificates previously distributed to Class B Certificateholders.
"Class B Principal Carryover Shortfall" means, with respect to
any Distribution Date, the excess of Class B Monthly Principal for the preceding
Distribution Date and any outstanding Class B Principal Carryover Shortfall on
such preceding Distribution Date over the amount in respect of principal that is
actually deposited in the Class B Distribution Account on such preceding
Distribution Date.
"Class B Principal Distribution" means, with respect to any
Distribution Date (including the Final Scheduled Distribution Date), the sum of
Class B Monthly Principal for such Distribution Date and the Class B Principal
Carryover Shortfall for such Distribution Date; provided, however, that the
Class B Principal Distribution shall not exceed the Class B Principal
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Balance immediately prior to such Distribution Date. In addition, on the Final
Scheduled Distribution Date, the principal required to be distributed to Class B
Certificateholders will include the lesser of (a) any principal due and
remaining unpaid on each Receivable in the Trust as of the Final Scheduled
Maturity Date or (b) the portion of the amount required to be deposited under
clause (a) above that is necessary (after giving effect to the other amounts to
be deposited in the Class B Distribution Account on such Distribution Date and
allocable to principal) to reduce the Class B Principal Balance to zero, and, in
the case of clauses (a) and (b), remaining after any required distribution of
the amount described in clause (a) to the Class A Distribution Account.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The initial Clearing Agency shall be DTC.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means June ___, 1997.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" means Bankers Trust Company, a New York
banking corporation, in its capacity as collateral agent with respect to the
Reserve Fund for the Certificateholders.
"Collection Account" means the account or accounts established
and maintained as such pursuant to Section 4.1.
"Collection Period" means, with respect to any Distribution Date,
the calendar month immediately preceding the calendar month in which such
Distribution Date occurs.
"Collections" mean, for a Distribution Date, the sum of the
Interest Collections and Principal Collections for such Distribution Date.
"Computer Tape" means the computer tape furnished by the Seller
describing certain characteristics of the Receivables as of the Cutoff Date.
"Contract" means a motor vehicle retail installment sale
contract.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders, the
Seller and the Servicer, or the principal corporate trust office of any
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successor Trustee (the address of which the successor Trustee will notify the
Certificateholders, the Seller and the Servicer).
"Customary Practices and Procedures" means, with respect to the
servicing of any Receivable, the customary standards, practices and procedures
of the Servicer (or, if there is a Subservicer with respect to such Receivable,
such Subservicer) with respect to the servicing of comparable automotive
receivables that such Person services for itself or others and with respect to
the functions performed as custodian of a Receivable File, the customary
standards, practices and procedures of the Servicer (or, if there is a
Subcustodian with respect to such Receivable File, such Subcustodian) with
respect to the functions performed as custodian of comparable automobile
receivable files for which such Person serves as custodian for itself or others.
"Cutoff Date" means May 31, 1997.
"Cutoff Date Principal Balance" means, with respect to a
Receivable, the Amount Financed minus the sum of (i) that portion of all
payments (including prepayments) made by or on behalf of the related Obligor
prior to the Cutoff Date and allocable to principal using the Simple Interest
Method, (ii) any portion of extended warranty contract costs or of physical
damage, theft, credit life or disability insurance premiums included in the
Amount Financed that was refunded prior to the Cutoff Date and (iii) any
prepayment in full or any partial prepayments applied to reduce the principal
balance of the Receivable, but only to the extent not included in clause (i).
"Dealer" means a dealer who sold a Financed Vehicle and who
originated and assigned the Receivable for such Financed Vehicle to the related
Affiliated Bank under a Dealer Agreement.
"Dealer Agreement" means any agreement between the related
Affiliated Bank and a Dealer relating to the acquisition of Receivables.
"Definitive Certificates" shall have the meaning specified in
Section 6.10.
"Delinquency Percentage" means, with respect to a Collection
Period the ratio of (a) the outstanding principal balance of the Receivables
[60] days or more delinquent (which amount shall include Receivables in respect
of Financed Vehicles that have been repossessed but not yet sold or otherwise
liquidated), as of the last day of such Collection Period, determined in
accordance with Customary Practices and Procedures, divided by (b) the
outstanding principal balance of all Receivables on the last day of such
Collection Period.
"Delivery" when used with respect to Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the UCC and
are susceptible of physical delivery, transfer thereof to the Trustee or
Collateral Agent (all references to the Collateral Agent in this
definition relate to the Reserve Fund), as applicable, or their
respective nominee, agent or custodian by physical delivery to the
Trustee or Collateral Agent, as applicable, or its nominee, agent or
custodian endorsed to, or registered in the name of, the Trustee or
Collateral Agent, as applicable, or their respective nominee,
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agent or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102 of the UCC) transfer
thereof (i) by delivery of such certificated security endorsed to, or
registered in the name of, the Trustee or Collateral Agent, as
applicable, or their respective nominee, agent or custodian or endorsed
in blank to a financial intermediary (as defined in Section 8-313 of the
UCC) and the making by such financial intermediary of entries on its
books and records identifying such certificated securities as belonging
to the Trustee or Collateral Agent, as applicable, or their respective
nominee, agent or custodian and the sending by such financial
intermediary of a confirmation of the purchase of such certificated
security by the Trustee or Collateral Agent, as applicable, or their
respective nominee, agent or custodian, or (ii) by delivery thereof to a
"clearing corporation" (as defined in Section 8-102(3) of the UCC) and
the making by such clearing corporation of appropriate entries on its
books reducing the appropriate securities account of the transferor and
increasing the appropriate securities account of a financial
intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated
securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the Trustee or Collateral
Agent, as applicable, or their respective nominee, agent or custodian of
such securities and the making by such financial intermediary of entries
on its books and records identifying such certificated securities as
belonging to the Trustee or Collateral Agent, as applicable, or their
respective nominee, agent or custodian (all of the foregoing, "Physical
Property"), and, in any event, any such Physical Property in registered
form shall be in the name of the Trustee or Collateral Agent, as
applicable, or their respective nominee, agent or custodian; and such
additional or alternative procedures as may hereafter become appropriate
to effect the complete transfer of ownership of any such Account
Property to the Trustee or Collateral Agent, as applicable, or their
respective nominee, agent or custodian, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to any securities issued by the U.S. Treasury,
the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book-entry security held through the
Federal Reserve System pursuant to Federal book-entry regulations, the
following procedures, all in accordance with applicable law, including
applicable Federal regulations and Articles 8 and 9 of the UCC:
book-entry registration of such Account Property to an appropriate
book-entry account maintained with a Federal Reserve Bank by a financial
intermediary which is also a "depository" pursuant to applicable Federal
regulations and issuance by such financial intermediary of a deposit
advice or other written confirmation of such book-entry registration to
the Trustee or Collateral Agent, as applicable, or its nominee, agent or
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custodian of the purchase by the Trustee or Collateral Agent, as
applicable, or its nominee, agent or custodian of such book-entry
securities; the making by such financial intermediary of entries in its
books and records identifying such book-entry security held through the
Federal Reserve System pursuant to Federal book-entry regulations as
belonging to the Trustee or Collateral Agent, as applicable, or its
nominee, agent or custodian and indicating that such custodian holds
such Account Property solely as agent for the Trustee or Collateral
Agent, as applicable, or its nominee, agent or custodian; and such
additional or alternative procedures as may hereafter become appropriate
to effect complete transfer of ownership of any such Account Property to
the Trustee or Collateral Agent, as applicable, or its nominee, agent or
custodian, consistent with changes in applicable law or regulations or
the interpretation thereof; and
(c) with respect to any item of Account Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of
the issuer thereof in the name of the financial intermediary, the
sending of a confirmation by the financial intermediary of the purchase
by the Trustee or Collateral Agent, as applicable, or its nominee, agent
or custodian of such uncertificated security and the making by such
financial intermediary of entries on its books and records identifying
such uncertificated certificates as belonging to the Trustee or
Collateral Agent, as applicable, or its nominee, agent or custodian.
"Depository Agreement" means the agreement among the Seller, the
Trustee and DTC, dated June ___, 1997.
"Determination Date" with respect to any Distribution Date, means
the later of the tenth Business Day and the sixteenth calendar day of the
calendar month in which such Distribution Date occurs.
"Distribution Date" means, with respect to each Collection
Period, the 20th day of the following month (or, if such 20th day is not a
Business Day, the next following Business Day), the first such Distribution Date
being July 21, 1997.
"Distribution Date Statement" means, the statement described in
Section 4.7
"DTC" means The Depository Trust Company.
"Eligible Deposit Account" means either (a) a segregated account
with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution (other than the Seller or
any affiliate of the Seller) organized under the laws of the United States of
America or any one of the States thereof or the District of Columbia (or any
domestic branch of a foreign bank), having corporate trust powers and acting as
trustee for funds deposited in such account, so long as any of the securities of
such depository institution shall have a credit rating from each Rating Agency
in one of its generic rating categories which signifies investment grade.
"Eligible Institution" means any depository institution (other
than the Seller or any affiliate of the Seller) organized under the laws of the
United States of America or any one of
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the States thereof or the District of Columbia (or any domestic branch of a
foreign bank), which (i) has (A) either a long-term senior unsecured debt rating
of AAA or a short-term senior unsecured debt or certificate of deposit rating of
A-1+ or better by Standard & Poor's and (B)(1) a long-term senior unsecured debt
rating of A-1 or better and (2) a short-term senior unsecured debt rating of P-1
or better by Moody's, or any other long-term, short-term or certificate of
deposit rating acceptable to the Rating Agencies and (ii) whose deposits are
insured by the FDIC. If so qualified, the Trustee and Collateral Agent may be
considered an Eligible Institution.
"Eligible Investments" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution (including the Seller or any Affiliate of the
Seller) or trust company incorporated under the laws of the United
States of America or any State thereof or the District of Columbia (or
any domestic branch of a foreign bank) and subject to supervision and
examination by Federal or State banking or depository institution
authorities (including depository receipts issued by any such
institution or trust company as custodian with respect to any obligation
referred to in clause (a) above or portion of such obligation for the
benefit of the holders of such depository receipts); provided, however,
that at the time of the investment or contractual commitment to invest
therein (which shall be deemed to be made again each time funds are
reinvested following each Distribution Date), the commercial paper or
other short-term senior unsecured debt obligations (other than such
obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) of such depository
institution or trust company shall have a credit rating from S&P of A-1+
and from Moody's of P-1;
(c) commercial paper (including commercial paper of the Seller
or any Affiliate of the Seller) having, at the time of the investment or
contractual commitment to invest therein, a rating from S&P of A-1+ and
from Moody's of P-1;
(d) investments in money market funds (including funds for which
the Seller or the Trustee or any of their respective Affiliates is
investment manager or advisor) having a rating from S&P of AAA-m or
AAAm-G and from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) referred to in clause (b) above; and
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(g) any other investment which would not cause either Rating
Agency to downgrade or withdraw its then current rating of either the
Class A Certificates or the Class B Certificates, as directed in writing
by either Rating Agency to the Trustee.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Entity" means (i) an employee benefit plan, retirement
arrangement, individual retirement account or Xxxxx subject to either Title I of
ERISA or Section 4975 of the Code, or (ii) an entity whose source of funds to be
used for the purchase of a Class B Certificate includes the assets of any such
plan, arrangement or account.
"Event of Servicing Termination" means an event specified in
Section 9.1.
"FDIC" means the Federal Deposit Insurance Corporation.
"Final Scheduled Distribution Date" means the _______________
Distribution _________________________________ Date.
"Final Scheduled Maturity Date" means May 31, 2003.
"Financed Vehicle" means a new or used automobile, van or light
duty truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"Independent Counsel" means, when used with respect to any
specified Person, that the Person (a) is in fact independent of the Servicer,
the Trust, the Seller and any Affiliate of any of the foregoing Persons and (b)
is not an officer or employee of the Servicer, the Trust, the Seller or any
Affiliate of any of the foregoing Persons.
"Insolvency Event" means, with respect to a specified Person, (a)
the filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable Federal or State bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver
(including any receiver appointed under the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended), liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or liquidation of
such Person's affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or (b) the commencement by such
Person of a voluntary case under any applicable Federal or State bankruptcy,
insolvency or other similar law now or hereafter in effect, or the consent by
such Person to the entry of an order for relief in an involuntary case under any
such law, or the consent by such Person to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its property,
or the making by such Person of any general assignment for the benefit of
creditors, or the failure by
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such Person generally to pay its debts as such debts become due, or the taking
of action by such Person in furtherance of any of the foregoing.
"Insurance" has the meaning specified in Section 3.4.
"Interest Collections" for a Distribution Date shall be the sum
of the following amounts with respect to the preceding Collection Period: (i)
that portion of all collections on the Receivables allocable to interest in
respect of such Collection Period; (ii) Liquidation Proceeds attributable to
interest on the Receivables which became Liquidated Receivables during such
Collection Period in accordance with the Servicer's customary servicing
procedures, to the extent not included in clause (i) above; (iii) the Purchase
Amount of each Receivable that became a Purchased Receivable during such
Collection Period to the extent attributable to accrued interest on such
Receivable; and (iv) Recoveries received during such Collection Period. Interest
Collections for any Distribution Date shall exclude all payments and proceeds
(including Liquidation Proceeds) of any Receivable, the Purchase Amount of which
has been included in Collections in a prior Collection Period.
"Lien" means a security interest, lien, charge, pledge, or
encumbrance of any kind, other than tax liens, mechanics' liens and any liens
that may attach to a Financed Vehicle or Receivable by operation of law as a
result of any act or omission by the related Obligor.
"Liquidated Receivable" means any defaulted Receivable liquidated
by the Servicer through the sale of a Financed Vehicle or otherwise or which the
Servicer has, after using all reasonable efforts to realize upon such
Receivable, charged-off.
"Liquidation Proceeds" means, with respect to any Liquidated
Receivable, the moneys collected in respect thereof, from whatever source (other
than any proceeds from any Dealer reserve) on a Liquidated Receivable during the
Collection Period in which such Receivable became a Liquidated Receivable, net
of the sum of any amounts expended by the Servicer in connection with such
liquidation and any amounts required by law to be remitted to the Obligor on
such Liquidated Receivable.
"Moody's" means Xxxxx'x Investors Service, Inc., or its
successors in interest.
"Obligor" on a Receivable means the purchaser or the
co-purchasers of the Financed Vehicle and any other Person who is obligated for
the indebtedness arising from such Receivable.
"Officer's Certificate" means a certificate signed by the
chairman of the board, the president, the vice chairman of the board, any
executive vice president, any senior vice president or any vice president.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Agreement, be
employees of or counsel to the Seller or the Servicer and who shall be
reasonably satisfactory to the Trustee, and which opinion or opinions shall be
addressed to the Trustee as Trustee, and shall be in form and substance
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satisfactory to the Trustee; provided, however, that any opinion regarding the
status of the Trust as a grantor trust for federal income tax purposes shall be
delivered by Independent Counsel.
"Original Class A Principal Balance" means $__________________.
"Original Class B Principal Balance" means $_________________.
"Original Pool Balance" means the aggregate Cutoff Date Principal
Balance of the Receivables, which is $800,271,576.72.
"Original Principal Balance" means the sum of the Original Class
A Principal Balance and the Original Class B Principal Balance.
"Person" means any individual, corporation, estate, partnership,
joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Plan" has the meaning specified in Section 6.3.
"Pool Balance" as of the close of business on the last day of a
Collection Period means the aggregate Principal Balance of the Receivables
(excluding Purchased Receivables and Liquidated Receivables).
"Principal Balance" of a Receivable, as of the close of business
on the last day of a Collection Period, means the Amount Financed minus the sum
of (i) that portion of all payments made by or on behalf of the related Obligor
on or prior to such day and allocable to principal using the Simple Interest
Method, (ii) any refunded portion of extended warranty contract costs or of
physical damage, theft, credit life or disability insurance premiums included in
the Amount Financed, (iii) any payment of the Purchase Amount with respect to
the Receivable allocable to principal and (iv) any prepayment in full or any
partial prepayments applied to reduce the principal balance of the Receivable,
but only to the extent not included in clause (i).
"Principal Collections" for a Distribution Date shall be the sum
of the following amounts with respect to the preceding Collection Period: (i)
that portion of all collections on the Receivables allocable to principal in
respect of such Collection Period; (ii) all Liquidation Proceeds attributable to
the principal amount of Receivables which became Liquidated Receivables during
such Collection Period in accordance with the Customary Practices and Procedures
only to the extent not included in clause (i) above; (iii) the Purchase Amount
of each Receivable repurchased by the Seller or purchased by the Servicer during
such Collection Period, to the extent attributable to principal; and (iv)
partial prepayments on Receivables in respect of such Collection Period relating
to refunds of extended warranty contract costs or of credit life or disability
insurance policy premiums, but only if such costs or premiums were financed by
the
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respective Obligor and only to the extent not included in clause (i) above.
Principal Collections on any Distribution Date shall exclude all payments and
proceeds (including Liquidation Proceeds) of any Receivable, the Purchase Amount
of which has been included in Collections in a prior Collection Period.
"Purchase Amount" means the amount, as of the close of business
on the last day of a Collection Period, required to prepay in full a Receivable
under the terms thereof including interest at the APR to the end of the month of
purchase.
"Purchased Receivable" means, on any date of determination, a
Receivable as to which payment of the Purchase Amount has been made by the
Seller or the Servicer pursuant to this Agreement.
"Rating Agency" means either S&P or Moody's. If no such
organization or successor is any longer in existence, "Rating Agency" shall be a
nationally recognized statistical rating organization or other comparable Person
designated by the Seller, notice of which designation shall be given to the
Trustee, the Collateral Agent and the Servicer.
"Rating Agency Condition" means, with respect to any action, that
each Rating Agency shall have been given 10 days' prior notice thereof (or such
shorter period as shall be acceptable to the Rating Agencies) and that neither
of the Rating Agencies shall have notified the Seller, the Servicer or the
Trustee in writing prior to the expiration of such 10-day period that such
action will, in and of itself, result in a reduction or withdrawal of the then
current rating of either class of Certificates. With respect to Section 4.2, the
Rating Agency Condition shall be deemed to be satisfied on the Closing Date
after receipt of a letter from each Rating Agency dated such date stating that
the Class A Certificates are rated in the highest investment rating category and
the Class B Certificates are rated at least "A" or its equivalent.
"Realized Losses" means, for any period, the excess of the
Principal Balance of any Liquidated Receivable over Liquidation Proceeds to the
extent allocable to principal.
"Receivable" means any Contract listed on Schedule A (which
Schedule may be in the form of microfiche), but excluding Liquidated Receivables
and Purchased Receivables.
"Receivable File" means, with respect to a Receivable, the
documents, specified in Section 2.4.
"Record Date" means, in respect of each Collection Period and the
related Distribution Date, the last day of the calendar month immediately
preceding such Distribution Date.
"Recoveries" with respect to any Collection Period, means all
monies received by the Servicer with respect to any Liquidated Receivable during
any Collection Period following the Collection Period in which such Receivable
became a Liquidated Receivable, net of the sum of (i) any expenses incurred by
the Servicer in connection with the collection of such Receivable
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and the disposition of the Financed Vehicle (to the extent not previously
reimbursed) and (ii) any payments required by law to be remitted to the Obligor,
but, in any event, not less than zero.
"Repossession Status" means _____________________________.
"Reserve Fund" means the fund established and maintained as such
pursuant to Section 4.1(b).
"Reserve Fund Deposit" means, with respect to the Closing Date,
$----------------.
"Sale and Servicing Agreements" means, the sale and servicing
agreements dated as of July 1, 1996 among the Seller and (i) Bank One, N.A., as
originator, administrator and servicer, (ii) Bank One, N.A., as administrator,
Bank One, Wisconsin, as originator and servicer, (iii) Bank One, N.A., as
administrator, Bank One, Wisconsin, as servicer and Bank One, Indiana, N.A., as
origiantor and (iv) Bank One, N.A., as administrator, Bank One, Wisconsin, as
servicer and Bank One, Illinois, N.A., as origiantor.
"S&P" or "Standard & Poor's" means Standard & Poor's Ratings
Services, a Division of The XxXxxx-Xxxx Companies, Inc., or its successors in
interest.
"Schedule of Receivables" means each list attached hereto as
Schedule A identifying the Receivables conveyed by the Seller, which list may be
in the form of microfiche, or computer readable tape or diskette.
"Seller" means Bank One, Texas, N.A., as the seller of the
Receivables, and each successor to Bank One, Texas, N.A., (in the same capacity)
pursuant to Section 7.4.
"Servicer" means Bank One, Texas, N.A., the servicer of the
Receivables, and each successor to Bank One, Texas, N.A. (in the same capacity)
pursuant to Section 8.3, and each successor Servicer appointed and acting
pursuant to Section 9.2.
"Servicer's Certificate" has the meaning specified in Section
3.9.
"Servicing Fee" means, with respect to any Distribution Date, the
fee payable to the Servicer for services rendered during such Collection Period,
determined pursuant to Section 3.8.
"Servicing Fee Rate" shall be 1.0% per annum, calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"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 the period of time
elapsed since the preceding payment of interest was made and the remainder of
such payment is allocable to principal.
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"Specified Reserve Balance" means, with respect to any
Distribution Date, the greater of (a) _____% of the sum of the Class A Principal
Balance and the Class B Principal Balance on such Distribution Date (after
giving effect to all distributions with respect to the Certificates to be made
on such Distribution Date) except that, if on any Distribution Date (x) the
average of the Charge-off Rates for the three preceding Collection Periods
exceeds _____% or (y) the average of the Delinquency Percentages for the three
preceding Collection Periods exceeds ____%, then the Specified Reserve Balance
shall be an amount equal to the greater of ____% of the sum of the Class A
Principal Balance and the Class B Principal Balance on such Distribution Date
(after giving effect to all distributions with respect to the Certificates to be
made on such Distribution Date) and the amount specified in clause (b) below or
(b) ____% of the sum of the Original Class A Principal Balance and the Original
Class B Principal Balance. In no circumstances will the Seller be required to
deposit any amounts in the Reserve Fund other than the Reserve Fund Deposit.
"STAMP" has the meaning specified in Section 6.3.
"State" means any state in the United States of America.
"Subcustodian" has the meaning specified in Section 2.4(b).
"Subservicer" has the meaning specified in Section 3.14.
"Transfer Date" means, with respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Trust" means the Banc One Auto Grantor Trust 1997-A created by
this Agreement.
"Trustee" means Bankers Trust Company, a New York banking
corporation, as Trustee under this Agreement, or any successor, and any
successor Trustee appointed and acting pursuant to Sections 10.10 and 10.11.
"Trust Property" means the (i) Receivables; (ii) all monies
received under the Receivables on and after the Cutoff Date; (iii) such amounts
as from time to time may be held in the Collection Account, the Class A
Distribution Account and the Class B Distribution Account (including the Account
Property related thereto); (iv) security interests in the Financed Vehicles; (v)
the Seller's rights, if any, to receive proceeds from claims on physical damage,
credit life, theft and disability insurance policies covering the Financed
Vehicles or the Obligors; (vi) the rights of the Trustee for the benefit of the
Certificateholders under this Agreement; (vii) the rights to receive payments
under the circumstances specified herein from the Reserve Fund; (viii) the
Seller's rights against the Subservicers, as servicers, pursuant to the Sale and
Servicing Agreements and relating to the Receivables; and (ix) all proceeds
(within the meaning of Section 9-306 of the UCC) of the foregoing.
"UCC" means the Uniform Commercial Code as in effect in the
relevant jurisdiction.
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SECTION 1.2. Usage of Terms.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement, in any instrument governed hereby
and in any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms not defined in this Agreement or in any such
instrument, certificate or other document, and accounting terms partly defined
in this Agreement or in any such instrument, certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles as in effect on the date of this
Agreement or any such instrument, certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such instrument, certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Agreement or in any such instrument, certificate
or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Article, Section,
Schedule and Exhibit references contained in this Agreement are references to
Articles, Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation."
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
SECTION 1.3. Calculations. Except as otherwise specifically provided
herein, all calculations of the amount of interest accrued on the Certificates
during any Collection Period and all calculations of the amount of the Servicing
Fee payable with respect to a Collection Period shall be made on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 1.4. References. All references to the first day of a Collection
Period shall refer to the opening of business on such day. All references to the
last day of a Collection Period shall refer to the close of business on such
day.
SECTION 1.5. References to the Trust. Whenever any provision of this
Agreement refers to actions to be taken by the Trust, matters to be consented to
by the Trust or deliveries or notices to the Trust, such provision shall be
deemed to refer to actions to be taken by the Trustee, matters to be consented
to by the Trustee or deliveries or notices to the Trustee.
SECTION 1.6. Action by or Consent of Certificateholders. Whenever any
provision of this Agreement refers to action to be taken or consented to by
Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Record Date
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immediately preceding the date on which such action is to be taken or consented
to by Certificateholders.
ARTICLE II.
The Trust Property
SECTION 2.1. Conveyance of Trust Property. In consideration of the
Trustee's delivery to, or upon the written order of, the Seller of authenticated
Certificates, in authorized denominations, in an aggregate amount equal to the
Original Principal Balance, the Seller does hereby sell, transfer, assign and
convey to the Trustee, upon the terms and conditions hereof, the Trust Property
to the Trustee, without recourse.
SECTION 2.2. Representations and Warranties as to Each Receivablee. The
Seller makes the following representations and warranties as to each Receivable
conveyed by the Seller to the Trustee hereunder on which the Trustee shall rely
in accepting the Trust Property in trust and authenticating the Certificates.
Unless otherwise indicated, such representations and warranties are being made
as of the execution and delivery of this Agreement, but shall survive the sale,
transfer and assignment of the Receivables and the other Trust Property to the
Trustee.
(a) Title. It is the intention of the Seller that the transfer
and assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Trustee and that the beneficial interest in and title to such
Receivables not be part of the receivership in the event of the filing of a
petition for receivership by or against the Seller. 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, immediately upon the transfer thereof, the Trustee shall have
good and marketable title to each such Receivable, free and clear of all Liens;
and the transfer of the Receivables to the Trustee has been perfected under the
UCC.
(b) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Trustee a first priority perfected
ownership interest in the Receivables, and to give the Trustee a first priority
perfected security interest therein, shall have been made.
(c) Characteristics of Receivables. Each Receivable (A) has been
originated by a Dealer in the regular course of such Dealer's business,
purchased from such Dealer by an Affiliated Bank in the ordinary course of such
Affiliated Bank's business and purchased by the Seller from such Affiliated Bank
in the ordinary course of the Seller's business, and each Obligor was approved
in accordance with each applicable Affiliated Bank's standard underwriting
procedures in effect at the time such Receivable was originated or purchased,
(B) has created or shall create a valid, subsisting and enforceable first
priority security interest in
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favor of the related Affiliated Bank in the Financed Vehicle, which security
interest has been assigned by such Affiliated Bank to the Seller and is
assignable by the Seller to the Trustee; (C) contains customary and enforceable
provisions under the laws of the State governing such Receivables such that the
rights and remedies of the holder thereof are adequate for realization against
the collateral of the benefits of the security; and (D) provides for equal
monthly payments at a fixed rate of interest calculated based on the Simple
Interest Method that fully amortizes the Amount Financed by maturity and yields
interest at the Annual Percentage Rate assuming payments are made on the due
date thereof.
(d) Schedule of Receivables. The information set forth in
Schedule A is true and correct in all material respects as of the opening of
business on the Cutoff Date and no selection procedures believed by the Seller
to be adverse to the Certificateholders were utilized in selecting the
Receivables. The Computer Tape regarding the Receivables is true and correct in
all material respects as of the Cutoff Date.
(e) Compliance With Law. Each Receivable complied at the
time it was originated or made and at the Closing Date complies in all material
respects with all requirements of applicable Federal, State and local laws and
regulations thereunder, including usury laws, the Federal Truth-in-Lending Act,
the Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit
Reporting Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx Warranty Act,
the Federal Reserve Board's Regulations B, Z and AA, State adaptations of the
Uniform Consumer Code and other consumer credit laws and equal credit
opportunity and disclosure laws.
(f) Binding Obligation. As of the Cutoff Date, each
Receivable represents the legal, valid and binding payment obligation in writing
of the Obligor thereunder, enforceable by the holder thereof in accordance with
its terms except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and similar laws
now or hereafter in effect related to or affecting creditors' rights generally
and subject to general principles of equity (whether applied in a proceeding at
law or in equity).
(g) No Government Obligor. As of the Cutoff Date, none of
the Receivables is due from the United States of America or any State or from
any agency, department or instrumentality of the United States of America or any
State.
(h) Security Interest in Financed Vehicle. Immediately
prior to the sale, assignment and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest in the Financed
Vehicle in favor of the related Affiliated Bank as secured party or all
necessary and appropriate actions have been commenced that would result in the
valid perfection of a first security interest in the Financed Vehicle in favor
of the related Affiliated Bank as secured party.
(i) Receivables in Force. As of the Cutoff Date, no
Receivable has been satisfied, subordinated or rescinded, nor has any Financed
Vehicle been
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released from the Lien granted by the related Receivable in whole or in part
unless another vehicle has been substituted as collateral securing the
Receivable without any other modification to such Receivable.
(j) No Waiver. As of the Cutoff Date, no provision of a
Receivable has been waived except as reflected in the Receivable File relating
to such Receivable.
(k) No Defenses. As of the Cutoff Date, neither the Seller
nor the related Affiliated Bank has received notice that any right of
rescission, setoff, counterclaim or defense has been asserted or threatened with
respect to any Receivable.
(l) No Liens. Neither the Seller nor the related Affiliated
Bank has received notice of any Liens or claims, including Liens for work,
labor, materials or unpaid State or Federal taxes relating to any Financed
Vehicle securing the related Receivable, that are or may be prior to or equal to
the Lien granted by such Receivable.
(m) No Default. No Receivable has a payment that is more
than 30 days overdue as of the Cutoff Date and, except as permitted in this
paragraph, no default, breach, violation or event (in any such case) 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 (in any such case) permitting acceleration under the
terms of any Receivable has arisen as of the Cutoff Date; and the Seller has not
waived and shall not waive any of the foregoing.
(n) Maturity of Receivables. The weighted average original
maturity of the Receivables is 58.80 months as of the Cutoff Date; the weighted
average remaining term of the Receivables is 53.30 months as of the Cutoff Date;
and the latest scheduled maturity of any Receivable shall be no later than the
Final Scheduled Maturity Date.
(o) No Bankruptcies. No Obligor on any Receivable was noted
in the related Receivable File as having filed for bankruptcy in a proceeding
which remained undischarged as of the Cutoff Date.
(p) No Repossessions. As of the Cutoff Date, no Financed
Vehicle securing any Receivable is in Repossession Status.
(q) Chattel Paper. Each Receivable constitutes "chattel
paper" as defined in the UCC.
(r) APR. The weighted average APR of the Receivables as of
the Cutoff Date is approximately 10.35%.
(s) Paid Ahead. As of the Cutoff Date, no Receivable is
more than [six months] paid ahead.
(t) Principal Balance. The average principal balance of the
Receivables as of the Cutoff Date is $12,356.93. The aggregate Cutoff Date
Principal Balance of
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the Receivables is $800,271,576.72. As of the Cutoff Date, each Receivable has a
principal balance between $250 and $50,000.
(u) Financing. Approximately 41.01% of the aggregate Cutoff
Date Principal Balance of the Receivables, constituting approximately 31.71% of
the number of Receivables as of the Cutoff Date, represents financing of new
vehicles; the remainder of the Receivables represents financing of used
vehicles.
(v) Insurance. The Affiliated Bank, in accordance with its
customary procedures, has determined that the Obligor, at the time the
Receivable was originated, obtained, applied for or made arrangements to obtain
physical damage insurance covering the Financed Vehicle and under the terms of
the Receivable the Obligor is required to maintain such insurance.
(w) Lawful Assignment. No Receivable has been originated
in, or as of the Cutoff Date is subject to the laws of, any jurisdiction under
which the sale, transfer and assignment of such Receivable or this Agreement is
unlawful, void or voidable.
(x) Insurance Premiums. As of the Cutoff Date, less than
1.00% of the aggregate Cutoff Date Principal Balance of the Receivables,
constituting less than 1.00% of the number of Receivables included amounts
attributable to the payment of any physical damage or theft insurance premium.
(y) One Original. There is only one original executed copy
of each Receivable.
(z) Location of Receivable Files. The Receivable Files are
kept at one or more of the locations listed in Schedule B.
(aa) Computer Records. As of the Closing Date, the
accounting and computer records relating to the Receivables of the Seller have
been marked to show the absolute ownership by the Trustee of the Receivables.
SECTION 2.3. Repurchase upon Breach. The Seller, the Servicer or the
Trustee, as the case may be, shall inform the other parties to this Agreement
promptly, in writing, upon the discovery of any breach of the Seller's
representations and warranties made pursuant to Section 2.2. Unless any such
breach shall have been cured within 60 days following the discovery thereof by
the Trustee or receipt by the Trustee of written notice from the Seller or the
Servicer of such breach, the Seller shall be obligated to repurchase any
Receivable in which the interests of the Certificateholders are materially and
adversely affected by any such breach as of the first day succeeding the end of
such 60 day period that is the last day of a Collection Period (or, at the
Seller's option, the last day of the first Collection Period following the
discovery). In consideration of and simultaneously with the repurchase of the
Receivable, the Seller shall remit to the Collection Account the Purchase Amount
in the manner specified in Section 4.3 and the Trustee shall execute such
assignments and other documents reasonably requested by the Seller in order to
effect such repurchase. The sole remedy of the Trust, the Trustee or the
Certificateholders with respect to a breach of representations and warranties
pursuant to Section
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2.2 and the agreement contained in this Section shall be to require the Seller
to repurchase Receivables pursuant to this Section, subject to the conditions
contained herein. The Trustee shall not have any duty to conduct any affirmative
investigation as to the occurrence of any conditions requiring the repurchase of
any Receivable pursuant to this Section.
SECTION 2.4. Custody of Receivable Files. (a) To assure uniform quality
in servicing the Receivables and to reduce administrative costs, the Trustee
hereby revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, to act as the agent of the Trustee as custodian of the following
documents or instruments (the "Receivable File") with respect to each
Receivable:
(i) the original executed copy of the Receivable;
(ii) a record of the information supplied by the Obligor in
the original credit application;
(iii) the original certificate of title (it being
understood that the original certificates of title generally are not
delivered to the related Affiliated Bank for 90 days but that promptly
upon delivery they shall be delivered to the Servicer as custodian
hereunder) or, if the laws of the state in which the Obligor is located
do not provide for possession of the certificate of title by the
Servicer, such other documents that the Servicer shall keep on file, in
accordance with Customary Practices and Procedures, sufficient in such
state to evidence the security interest of the related Affiliated Bank
in the Financed Vehicle; and
(iv) any and all other documents that the Servicer or a
Subcustodian shall keep on file, in accordance with Customary Practices
and Procedures, relating to a Receivable, an Obligor or a Financed
Vehicle.
(a) To assure uniform quality in servicing the Receivables
and to reduce administrative costs, the Trustee hereby acknowledges that the
Servicer may appoint one or more Subcustodians (each, a "Subcustodian") of the
Receivable Files; provided, however, that if a Subcustodian is a Person other
than Banc One Services Corporation or an Affiliated Bank, the Rating Agency
Condition shall have been satisfied in connection therewith. Such appointment
shall not relieve the Servicer from its obligations as custodian of all the
Receivable Files hereunder.
SECTION 2.5. Duties of Servicer as Custodian. (a) Safekeeping. The
Servicer shall hold, or shall cause a Subcustodian to hold, the Receivable Files
on behalf of the Trustee for the benefit of all present and future
Certificateholders and maintain or cause a Subcustodian to maintain such
accurate and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Servicer and the Trustee to comply with this
Agreement. In performing its duties as custodian the Servicer shall act, and
shall cause a Subcustodian to act, with reasonable care, using that degree of
skill and attention that the Servicer exercises with respect to the receivable
files relating to all comparable automotive receivables that the Servicer
services for itself or others, except that the Servicer shall not be obligated,
and does not intend, to
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(i) pay any premium for force-placed insurance concerning any Financed Vehicle
or (ii) monitor any Obligor's maintenance of Insurance. The Servicer shall
conduct, or cause to be conducted, periodic audits of the Receivable Files held
by it under this Agreement and of the related accounts, records and computer
systems, in such a manner as shall enable the Trustee to verify the accuracy of
the Servicer's record-keeping in the event the Trustee is required to do so
pursuant to the terms of this Agreement. The Servicer shall promptly report to
the Trustee any failure on its part to hold the Receivable Files and maintain
its accounts, records and computer systems as herein provided and promptly take
appropriate action to remedy any such failure.
(b) Maintenance of and Access to Records. The Servicer
shall maintain or cause a Subcustodian to maintain each Receivable File at one
of the offices specified in Schedule B 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. Upon reasonable prior notice, the Servicer shall make
available to the Trustee or its duly authorized representatives, attorneys or
auditors a list of locations of the Receivable Files and records and computer
systems maintained by the Servicer and permit access to such Receivable Files at
such times during normal business hours as the Trustee shall require.
(c) Release of Documents. Upon written instruction from the
Trustee, the Servicer shall release or cause to be released any Receivable File
to the Trustee, the Trustee's agent or the Trustee's designee, as the case may
be, at such place or places as the Trustee may designate, as soon as practicable
and upon the release and delivery of any such document in accordance with the
instructions of the Trustee, the Servicer shall be released from any further
liability and responsibilities under this Section 2.5 with respect to such
documents unless and until such time as such document may be returned to the
Servicer.
SECTION 2.6. Instructions; Authority To Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by an Authorized Officer of the
Trustee.
SECTION 2.7. Custodian's Indemnification. The Servicer as custodian
shall indemnify and hold harmless the Trustee and its officers, directors,
employees and agents for any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses (including reasonable
attorneys' fees and expenses) that may be imposed on, incurred by or asserted
against the Trustee or any of its officers, directors, employees and agents as
the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer or a Subcustodian of the Receivable
Files where the final determination that any such improper act or omission by
the Servicer or a Subcustodian which resulted in such liability, obligation,
loss, damage, payment, cost or expense is established by a court of law, by an
arbitrator or by way of settlement agreed to by the Servicer; provided, however,
that the Servicer shall not be liable for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the Trustee.
This provision shall not be considered to limit the Servicer's or any other
party's rights, obligations, liabilities, claims or defenses which arise as a
matter of law or pursuant to any other provision of this Agreement.
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SECTION 2.8. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section. If
Bank One, Texas, N.A. shall resign as Servicer in accordance with the provisions
of this Agreement or if all of the rights and obligations of any Servicer shall
have been terminated under Section 9.1, the appointment of such Servicer as
custodian shall be terminated by the Trustee or by Holders of Certificates
evidencing not less than a majority of the aggregate outstanding principal
balance of the Class A Certificates and the Class B Certificates taken together
as a single class, in the same manner as the Trustee or such Holders may
terminate the rights and obligations of the Servicer under Section 9.1. The
Trustee may terminate the Servicer's appointment as custodian, with cause, at
any time upon written notification to the Servicer, and without cause upon 30
days' prior written notification to the Servicer and the Rating Agencies. As
soon as practicable after any termination of such appointment, the Servicer
shall deliver at its expense the Receivable Files to the Trustee or the
Trustee's agent at such place or places as the Trustee may reasonably designate
in writing. If the Servicer shall be terminated as custodian hereunder for any
reason but shall continue to serve as Servicer, the Trustee shall, or shall
cause its agent to, make the Receivable Files available to the Servicer during
normal business hours upon reasonable notice so as to permit the Servicer to
perform its obligations as Servicer hereunder.
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ARTICLE III.
Administration and Servicing of the Trust Property
SECTION 3.1. Duties of Servicer. The Servicer, on behalf of the Trustee
(to the extent provided herein), shall manage, service, administer and make
collections on the Receivables (other than Purchased Receivables) with
reasonable care, using Customary Practices and Procedures, except that the
Servicer shall not be obligated, and does not intend, to (i) pay any premium for
force-placed insurance concerning any Financed Vehicle or (ii) monitor any
Obligor's maintenance of Insurance. The Servicer's duties shall include
collection and posting of all payments, responding to inquiries of Obligors on
such Receivables, investigating delinquencies, sending payment coupons to
Obligors, reporting tax information to Obligors, accounting for collections and
furnishing monthly and annual statements to the Trustee with respect to
distributions. Subject to the provisions of Section 3.2, the Servicer shall
follow Customary Practices and Procedures in performing its duties as Servicer.
Without limiting the generality of the foregoing, the Servicer is authorized and
empowered to execute and deliver, on behalf of itself, the Trust, the Trustee
and the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all
other comparable instruments, with respect to such Receivables or to the
Financed Vehicles securing such Receivables. If the Servicer shall commence a
legal proceeding to enforce a Receivable, the Trustee (in the case of a
Receivable other than a Purchased Receivable) shall thereupon be deemed to have
automatically assigned, solely for the purpose of collection, such Receivable to
the Servicer. If in any enforcement suit or legal proceeding it shall be held
that the Servicer may not enforce a Receivable on the ground that it shall not
be a real party in interest or a holder entitled to enforce such Receivable the
Trustee shall, at the Servicer's expense and direction, take steps to enforce
such Receivable, including bringing suit in its name or the name of the Trustee
or the Certificateholders. The Trustee shall upon the written request of the
Servicer execute any powers of attorney and other documents reasonably necessary
or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
SECTION 3.2. Collection and Allocation of Receivable Payments. (a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Receivables as and when the same shall become
due and shall follow Customary Practices and Procedures. The Servicer shall
allocate collections between principal and interest in accordance with the
customary servicing procedures it follows with respect to all comparable
automotive receivables that it services for itself or others.
(b) The Servicer may not grant extensions or modify the
original due dates of a Receivable; provided, however, that (i) in those
circumstances where the Servicer determines that there has been a temporary
interruption in the Obligor's ability to make payments and (ii) following a
solicitation of the related Obligor in accordance with Customary Practices and
Procedures, the Servicer may (x) after six payments have been made, grant one
one-month extension with respect to a Receivable, (y) after an additional twelve
payments have been made, grant a one-month extension with respect to a
Receivable and (z) change the original due date once during the term of a
Receivable to a new due date within 20 days of the original scheduled
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due date of such Receivable, provided that the Servicer may not extend the date
for final payment by the Obligor of any Receivable beyond _________________. The
Servicer may in its discretion waive any late payment charge or any other fees
that may be collected in the ordinary course of servicing a Receivable. The
Servicer shall not voluntarily agree to any reduction of (i) the original
interest rate, (ii) the amount of the original regular scheduled payment or
(iii) the Principal Balance, of any Receivable. The Servicer shall not advance
any funds to any Person as a result of actions taken by it pursuant to this
Section 3.2(b).
SECTION 3.3. Realization upon Receivables. On behalf of the Trust, the
Servicer shall use its best efforts, consistent with Customary Practices and
Procedures, to repossess or otherwise convert the ownership of the Financed
Vehicle securing any Receivable as to which the Servicer shall have determined
eventual payment in full is unlikely. From time to time, as appropriate for
servicing or foreclosing upon any Receivable, the Trustee shall, upon written
request of the Servicer, execute such documents as shall be necessary to
prosecute any such proceedings. The Servicer shall follow Customary Practices
and Procedures as it shall deem necessary or advisable in its servicing of
automotive receivables, which may include reasonable efforts to realize proceeds
from Receivables repurchased by a Dealer, pursuant to a Dealer Agreement, as a
result of a breach of a representation or warranty in the related Dealer
Agreement or a default by an Obligor resulting in the repossession of the
Financed Vehicle under such Dealer Agreement. The foregoing shall be subject to
the provision that, in any case in which the Financed Vehicle shall have
suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Vehicle unless it shall determine in
its reasonable discretion that such repair and/or repossession will increase the
Liquidation Proceeds by an amount greater than the amount of such expenses.
SECTION 3.4. Physical Damage Insurance. The Servicer shall, in
accordance with Customary Practices and Procedures, require that each Obligor
shall have obtained and shall maintain fire, theft and collision insurance or
comprehensive and collision insurance covering the Financed Vehicle
("Insurance") as of the execution of the Receivable. The Servicer shall enforce
its rights under the Receivables to require the Obligors to maintain Insurance,
in accordance with Customary Practices and Procedures, except that the Servicer
shall not be obligated, and does not intend, to (i) pay any premium for
force-placed insurance concerning any Financed Vehicle or (ii) monitor any
Obligor's maintenance of Insurance.
SECTION 3.5. Maintenance of Security Interests in Financed Vehicles. The
Servicer shall, in accordance with Customary Practices and Procedures, take such
steps as are necessary to maintain perfection of the security interest created
by each Receivable in the related Financed Vehicle in favor of the applicable
Affiliated Bank. The Servicer is hereby authorized to take such steps as are
necessary to re-perfect such security interest on behalf of the Trustee in the
event of the relocation of a Financed Vehicle or for any other reason.
SECTION 3.6. Covenants of Servicer. The Servicer shall not release the
Financed Vehicle securing any Receivable from the security interest granted by
such Receivable in whole or in part except in the event of payment in full by
the Obligor thereunder or repossession or except as may be required by an
insurer in order to receive proceeds from
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insurance covering such Financed Vehicle, nor shall the Servicer impair the
rights of the Trustee or the Certificateholders in such Receivables (it being
understood that no action of the Servicer taken in compliance with the terms of
this Agreement shall be deemed to impair such rights), nor shall the Servicer
increase the number of scheduled payments due under a Receivable.
SECTION 3.7. Purchase of Receivables upon Breach. The Servicer or the
Trustee shall inform the other party and the Seller promptly, in writing, upon
the discovery of any breach pursuant to Section 3.2(b), 3.5 or 3.6. Unless the
breach shall have been cured within 60 days following such discovery thereof by
the Trustee or the receipt by the Trustee of notice of such breach, the Servicer
shall be obligated to purchase any Receivable in which the interests of the
Certificateholders are materially and adversely affected by such breach as of
the first day succeeding the end of such 60 day period that is the last day of a
Collection Period (or, at the Servicer's option, the last day of the first
Collection Period following the discovery). In consideration of the purchase of
any such Receivable pursuant to the preceding sentence, the Servicer shall remit
the Purchase Amount in the manner specified in Section 4.3. The sole remedy of
the Trustee or the Certificateholders with respect to a breach pursuant to
Section 3.2(b), 3.5 or 3.6 shall be to require the Servicer to purchase
Receivables pursuant to this Section. The Trustee shall have no duty to conduct
any affirmative investigation as to the occurrence of any condition requiring
the purchase of any Receivable pursuant to this Section.
SECTION 3.8. Servicing Fee. The servicing fee for each Distribution Date
shall equal the product of (i) one-twelfth, (ii) the Servicing Fee Rate and
(iii) the Pool Balance as of the first day of the related Collection Period (the
"Servicing Fee"). As additional servicing compensation, the Servicer shall also
be entitled to retain certain non-sufficient funds charges and other
administrative fees or similar charges allowed by applicable law with respect to
the Receivables as well as investment earnings (net of losses) on the Accounts.
SECTION 3.9. Servicer's Certificate. On each Determination Date, the
Servicer shall deliver to the Trustee and the Seller, with a copy to the Rating
Agencies, an Officer's Certificate of the Servicer (the "Servicer's
Certificate") containing all information necessary to make the distributions
pursuant to Sections 4.5 and 4.6 for the Collection Period preceding the date of
such Servicer's Certificate. Receivables to be purchased by the Servicer or to
be repurchased by the Seller shall be identified by the Servicer by account
number with respect to such Receivable (as specified in Schedule A).
SECTION 3.10. Annual Statement as to Compliance; Notice of Default. (a)
The Servicer shall deliver to the Trustee, on or before April 30 of each year
beginning April 30, 1998, an Officer's Certificate, dated as of December 31 of
the preceding year, stating that (i) a review of the activities of the Servicer
during the preceding 12-month period (or, in the case of the first such report,
during the period from the Closing Date to December 31, 1997) and of its
performance under this Agreement has been made under such officer's supervision
and (ii) to the best of such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement throughout such
year or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. The Trustee shall send a copy of such certificate and the report
referred
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to in Section 3.11 to the Rating Agencies. A copy of such certificate and the
report referred to in Section 3.11 may be obtained by any Certificateholder by a
request in writing to the Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and the
Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five (5) Business Days thereafter, written notice in an
Officer's Certificate of any event which with the giving of notice or lapse of
time, or both, would become an Event of Servicing Termination under Section
9.1(a) or (b).
SECTION 3.11. Annual Independent Certified Public Accountants' Report.
The Servicer shall cause a firm of independent certified public accountants,
which may also render other services to the Servicer or the Seller, to deliver
to the Seller and the Trustee on or before April 30 of each year beginning April
30, 1998 a report addressed to the Servicer, the Seller, the Trustee and each
Rating Agency to the effect that (i) such accountants have examined the
assertions by the Servicer's management about the Servicer's compliance with
this Agreement during the preceding calendar year (or, in the case of the first
such report, during the period from the Closing Date to December 31, 1997) and
(ii) in such accountants' opinion, such assertions are fairly stated in all
material respects, except for such exceptions as such firm shall believe to be
immaterial and such other exceptions as shall be set forth in such report.
Such report will also indicate that the firm is independent of
the Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 3.12. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide and shall cause the related Subcustodian
to provide to the Certificateholders access to the Receivable Files in such
cases where the Certificateholders shall be required by applicable statutes or
regulations to review such documentation as demonstrated by evidence
satisfactory to the Servicer in its reasonable judgment. Access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the locations where the Receivable Files are held and
described in Section 2.5(b). Nothing in this Section shall affect the obligation
of the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors and the failure of the Servicer to provide
access to information as a result of such obligation shall not constitute a
breach of this Section.
SECTION 3.13. Servicer Expenses. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of the Trustee or its agent and independent
accountants, taxes imposed on the Servicer and expenses incurred in connection
with distributions and reports to Certificateholders.
SECTION 3.14. Appointment of Subservicer. The Servicer initially
appoints Bank One, N.A. and Bank One, Wisconsin (each, a "Subservicer") to act
as subservicers. Although the Subservicers may, on a temporary basis, delegate
servicing responsibilities to any affiliate of the Servicer which is in the
business of performing such responsibilities, no Person
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other than Bank One, N.A. and Bank One, Wisconsin may be the Subservicer of any
Receivables unless the Rating Agency Condition shall have been satisfied.
Notwithstanding the foregoing, (i) the Servicer shall remain obligated and be
liable to the Trust, the Trustee and the Certificateholders for the servicing
and administering of the Receivables in accordance with the provisions hereof
without diminution of such obligation and liability by virtue of the appointment
of such Subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Receivables and (ii) each Subservicer shall remain obligated and be liable to
the Trust, the Trustee and the Certificateholders for the servicing and
administering of the Receivables for which it acts as servicer in accordance
with the provisions of the related Sale and Servicing Agreement without
diminution of such obligation and liability by virtue of the temporary
delegation described above to and to the same extent and under the same terms
and conditions as if such Subervicer alone was servicing and administering the
related Receivables. The fees and expenses of any Subservicer shall be as agreed
between the Servicer and any Subservicer from time to time and none of the
Trust, the Trustee or the Certificateholders shall have any responsibility
therefor. All amounts received by a Subservicer shall be deemed to be received
by the Servicer.
ARTICLE IV.
Distributions; Reserve Fund;
Statements to Certificateholders
SECTION 4.1. Establishment of Accounts. (a) (i) The Trustee shall
establish and maintain in the name of the Trustee one or more Eligible Deposit
Accounts (the "Collection Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders. The Trustee shall establish and maintain in the name of the
Trustee an Eligible Deposit Account (the "Class A Distribution Account"),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Class A Certificateholders. The Trustee shall
establish and maintain in the name of the Trustee an Eligible Deposit Account
(the "Class B Distribution Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Class B
Certificateholders. The Collection Account, the Class A Distribution Account and
the Class B Distribution Account shall not be held in the State of Texas or
Ohio.
(ii) Funds on deposit in the Collection Account, the
Class A Distribution Account and the Class B Distribution Account
(collectively, the "Accounts") shall be invested by the Trustee in
Eligible Investments selected in writing by the Servicer; provided,
however, it is understood and agreed that the Trustee shall not be
liable for any loss arising from such investment in Eligible
Investments. All such Eligible Investments shall be held by the Trustee
for the benefit of the beneficiaries of the applicable Account;
provided, that on each Distribution Date all interest and other
investment income (net of losses and investment expenses) on funds on
deposit therein shall be withdrawn from the Accounts at the written
direction of the Servicer and shall be paid to the Servicer. Funds on
deposit in the Accounts shall be invested in Eligible Investments that
will mature so that such funds will be available at the close of
business
-29-
on the Transfer Date preceding the following Distribution Date. Funds
deposited in an Account on a Transfer Date which immediately precedes a
Distribution Date or upon the maturity of any Eligible Investments are
not required to be (but may be) invested overnight. Neither the Servicer
nor the Trustee shall be liable for any investment losses.
(iii) The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Accounts and
in all proceeds thereof (including all income thereon) and all such
funds, investments, proceeds and income shall be part of the Trust
Property. Except as expressly provided herein, the Accounts shall be
under the sole dominion and control of the Trustee. If, at any time, any
of the Accounts ceases to be an Eligible Deposit Account, the Trustee
shall within 10 Business Days (or such longer period, as to which each
Rating Agency may consent) establish a new Account as an Eligible
Deposit Account and shall transfer any cash and/or any investments to
such new Account. In connection with the foregoing, the Servicer agrees
that, in the event that any of the Accounts are not accounts with the
Trustee, the Servicer shall notify the Trustee in writing promptly upon
any of such Accounts ceasing to be an Eligible Deposit Account.
(iv) The Servicer shall have the power, revocable by the
Trustee, to instruct the Trustee to make withdrawals and payments from
the Accounts for the purpose of permitting the Servicer to carry out its
duties hereunder or permitting the Trustee to carry out its duties.
(b) (i) The Servicer, for the benefit of the Trust and
the Certificateholders, shall establish and maintain in the name of
Bankers Trust Company as Collateral Agent an Eligible Deposit Account
(the "Reserve Fund"). The Reserve Fund shall not be property of the
Trust. The Reserve Fund shall not be held in the State of Texas or Ohio.
(ii) Funds on deposit in the Reserve Fund shall be
invested by the Collateral Agent in Eligible Investments selected in
writing by the Servicer; provided, however, it is understood and agreed
that the Collateral Agent shall not be liable for any loss arising from
such investment in Eligible Investments. All such Eligible Investments
shall be held by the Collateral Agent for the benefit of the
beneficiaries of the Reserve Fund; provided, that on each Distribution
Date all interest and other investment income (net of losses and
investment expenses) on funds on deposit therein shall be withdrawn from
the Reserve Fund at the written direction of the Servicer and shall be
paid to the Servicer for distribution to the Seller. Funds on deposit in
the Reserve Fund shall be invested in Eligible Investments that will
mature so that such funds will be available at the close of business on
the Transfer Date preceding the following Distribution Date. Funds
deposited in the Reserve Fund on a Transfer Date which immediately
precedes a Distribution Date or upon the maturity of any Eligible
Investments are not required to be (but may be) invested overnight.
Neither the Servicer nor the Trustee shall be liable for any investment
losses. The Seller will treat these funds, Eligible Investments and
other assets in the Reserve Fund as its own for Federal, State and local
income tax and
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franchise tax purposes and will report on its tax returns all income,
gain and loss from the Reserve Fund.
(iii) The Reserve Fund shall be under the sole dominion
and control of the Collateral Agent. If, at any time, the Reserve Fund
ceases to be an Eligible Deposit Account, the Servicer shall within 10
Business Days (or such longer period, as to which each Rating Agency may
consent) establish a new Reserve Fund as an Eligible Deposit Account and
shall transfer any cash and/or any investments to such new Reserve Fund.
In connection with the foregoing, the Servicer agrees that, in the event
that the Reserve Fund is not an account with the Trustee, the Servicer
shall notify the Trustee in writing promptly upon the Reserve Fund
ceasing to be an Eligible Deposit Account.
(iv) With respect to the Account Property in respect of
the Reserve Fund, the Collateral Agent agrees that:
(A) any Account Property that is held in deposit
accounts shall be held solely in an Eligible Deposit Account
subject to the penultimate sentence of Section 4.1(b)(iii); and,
except as otherwise provided herein, each such Eligible Deposit
Account shall be subject to the exclusive custody and control of
the Collateral Agent, and the Collateral Agent shall have sole
signature authority with respect thereto;
(B) any Account Property that constitutes Physical
Property shall be delivered to the Collateral Agent in accordance
with paragraph (a) of the definition of "Delivery" and shall be
held, pending maturity or disposition, solely by the Collateral
Agent or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for the Collateral
Agent;
(C) any Account Property that is a book-entry security
held through the Federal Reserve System pursuant to Federal
book-entry regulations shall be delivered in accordance with
paragraph (b) of the definition of "Delivery" and shall be
maintained by the Collateral Agent, pending maturity or
disposition, through continued book-entry registration of such
Account Property as described in such paragraph; and
(D) any Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (C) above shall be delivered to the Collateral Agent in
accordance with paragraph (c) of the definition of "Delivery" and
shall be maintained by the Collateral Agent, pending maturity or
disposition, through continued registration of the Collateral
Agent's (or its nominee's) ownership of such security.
(v) The Servicer shall have the power, revocable by the
Trustee, to instruct the Collateral Agent to make withdrawals and
payments from the Reserve Fund for the purpose of permitting the
Servicer to carry out its duties hereunder or permitting the Collateral
Agent to carry out its duties.
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SECTION 4.2. Collections. (a) The Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all payments by or on
behalf of the Obligors with respect to the Receivables (other than certain
nonsufficient funds charges and other administrative fees or similar charges
that may be retained by the Servicer as part of its servicing compensation in
accordance with Section 3.8), and all Liquidation Proceeds and Recoveries, both
as collected during the Collection Period. Notwithstanding the foregoing, for so
long as (i) no Event of Servicing Termination shall have occurred and be
continuing and (ii) the Rating Agency Condition shall have been satisfied (and
any conditions or limitations imposed by the Rating Agencies in connection
therewith are complied with), the Servicer shall remit such collections to the
Collection Account on the related Transfer Date. For purposes of this Article IV
the phrase "payments by or on behalf of Obligors" shall mean payments made with
respect to the Receivables by Persons other than the Servicer or the Seller.
(b) All collections for the Collection Period shall be
applied by the Servicer as follows: with respect to each Receivable (other than
a Purchased Receivable), payments by or on behalf of the Obligor shall be
applied to interest and principal in accordance with the Simple Interest Method,
as applied by the Servicer. Any excess shall be applied to prepay the
Receivable.
(c) All Liquidation Proceeds shall be applied by the
Servicer to the related Receivable in accordance with Customary Practices and
Procedures.
SECTION 4.3. Additional Deposits. The Servicer and the Seller shall
deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Receivables and the Seller shall
deposit or cause to be deposited therein all amounts to be paid under Section
11.2. The Servicer will deposit or cause to be deposited the aggregate Purchase
Amount with respect to Purchased Receivables within two Business Days after such
obligations become due, unless the Servicer shall not be required to make
deposits within two Business Days of receipt pursuant to Section 4.2(a) (in
which case such deposit will be made by the related Transfer Date). All such
other deposits shall be made on the Transfer Date following the end of the
related Collection Period.
SECTION 4.4. Net Deposits. As an administrative convenience, unless the
Servicer is required to remit collections within two Business Days of receipt
thereof, the Servicer will be permitted to make the deposit of collections on
the Receivables and Purchase Amounts for or with respect to the Collection
Period net of distributions to be made to the Servicer with respect to the
Collection Period. The Servicer, however, will account to the Trustee and the
Certificateholders as if all deposits, distributions and transfers were made
individually.
SECTION 4.5. Distributions. On each Determination Date, the Servicer
shall calculate all amounts required to determine the amounts to be deposited in
the Class A Distribution Account and the Class B Distribution Account.
(b) Subject to the last paragraph of this Section 4.5(b),
on each Distribution Date, the Servicer shall instruct the Trustee (based on the
information contained in the Servicer's Certificate delivered on the related
Determination Date pursuant to Section 3.9) to
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make the following deposits and distributions for receipt by the Servicer or
deposit in the applicable Account by 12:00 P.M. (New York City time):
(i) to the extent of Interest Collections for such
Distribution Date (and, in the case of shortfalls occurring under clause
(B) below in the Class A Interest Distribution, the Class B Percentage
of Principal Collections for such Distribution Date to the extent of
such shortfalls):
(A) to the Servicer, the Servicing Fee for such
Distribution Date and all unpaid Servicing Fees from prior
Collection Periods (to the extent such amounts have not been
retained pursuant to Section 4.4);
(B) to the Class A Distribution Account, after the
application of clause (A), the Class A Interest Distribution for
such Distribution Date; and
(C) to the Class B Distribution Account, after the
application of clauses (A) and (B), the Class B Interest
Distribution for such Distribution Date; and
(ii) to the extent of the portion of Principal
Collections and Interest Collections for such Distribution Date
remaining after the application of clauses (i)(A), (B) and (C) above:
(A) to the Class A Distribution Account, the Class A
Principal Distribution for such Distribution Date;
(B) to the Class B Distribution Account, after the
application of clause (A), the Class B Principal Distribution for
such Distribution Date; and
(C) to the Reserve Fund, any amounts remaining after the
application of clauses (i)(A) through (C) and (ii) (A) and (B).
In the event that the Collection Account is maintained with an institution other
than the Trustee, the Servicer shall instruct and cause such institution to make
all deposits and distributions pursuant to this Section 4.5(b) on the related
Transfer Date. The Trustee shall be entitled to conclusively rely on the
Servicer's instructions and any Servicer's Certificate without investigation.
(c) On each Distribution Date, all amounts on deposit in
the Class A Distribution Account, after application of Section 4.6 below, will
be distributed to the Class A Certificateholders by the Trustee and all amounts
on deposit in the Class B Distribution Account, after application of Section 4.6
below, will be distributed to the Class B Certificateholders by the Trustee.
Payments under this Section 4.5(c) shall be made to the Certificateholders
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least seven Business Days prior to such Distribution
Date and such Holder's Certificates in the aggregate evidence a denomination of
not
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less than $1,000,000 or by check mailed by the Trustee to each Holder's
respective address of record (or, in the case of Certificates registered in the
name of a Clearing Agency, or its nominee, by wire transfer of immediately
available funds). To the extent that the Trustee is required to wire funds to
the Certificateholders or the Servicer from the Class A Distribution Account or
the Class B Distribution Account, as applicable, it shall request the
institution maintaining the Class A Distribution Account or the Class B
Distribution Account, as applicable, to make a wire transfer of the amount to be
distributed and the institution maintaining the Class A Distribution Account or
the Class B Distribution Account, as applicable, shall promptly deliver to the
Trustee a confirmation of such wire transfer. To the extent that the Trustee is
required to make payments to Certificateholders by check hereunder, it shall
request the institution maintaining the Class A Distribution Account or the
Class B Distribution Account, as applicable, to provide it with a supply of
checks to make such payments. The institution shall, if a request is made by the
Trustee for a wire transfer in accordance with this Section 4.5(c), wire such
funds, in accordance with such instructions by 12:00 P.M. (New York City time)
on such Distribution Date, and it will otherwise act in compliance with the
provisions of this paragraph and the other provisions of this Agreement
applicable to it as the institution maintaining the Class A Distribution Account
or the Class B Distribution Account, as applicable. The Servicer shall take all
necessary action (including requiring an agreement to such effect) to ensure
that any institution maintaining the Class A Distribution Account or the Class B
Distribution Account, as applicable, agrees to comply, and complies, with the
provisions of this paragraph and the other provisions of this Agreement
applicable to it as the institution maintaining the Class A Distribution Account
or the Class B Distribution Account, as applicable. Initially the institution
shall be the Trustee.
SECTION 4.6. Reserve Fund. (a) On the Closing Date, the Reserve Fund
Deposit shall be deposited into the Reserve Fund from the net proceeds from the
sale of the Certificates. The Seller hereby grants to the Collateral Agent a
security interest in and to the Reserve Fund and any and all property credited
thereto from time to time, including but not limited to Eligible Investments, to
secure payment of the Certificates according to their terms. Amounts held from
time to time in the Reserve Fund will continue to be held by the Collateral
Agent for the benefit of Class A Certificateholders and the Class B
Certificateholders but the Reserve Fund shall not be an asset of the Trust. By
acceptance of their Certificates, Certificateholders shall be deemed to have
appointed Bankers Trust Company as Collateral Agent. Bankers Trust Company
hereby accepts such appointment as Collateral Agent.
(b) On each Distribution Date, the Servicer shall
instruct the Collateral Agent (based on the information contained in the
Servicer's Certificate delivered on the related Determination Date pursuant to
Section 3.9) to withdraw from the Reserve Fund on such Distribution Date, to the
extent of funds available therein, the amounts specified below, in the order of
priority specified below, and deposit such amounts in the Class A Distribution
Account or the Class B Distribution Account, as specified below, on such
Distribution Date:
(i) an amount equal to the excess, if any, of the Class
A Interest Distribution for such Distribution Date over the sum of
Interest Collections for such Distribution Date and the Class B
Percentage of Principal Collections for such Distribution Date will be
deposited into the Class A Distribution Account;
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(ii) an amount equal to the excess, if any, of the Class
B Interest Distribution for such Distribution Date over the portion of
Interest Collections for such Distribution Date remaining after the
distribution of the Class A Interest Distribution for such Distribution
Date will be deposited into the Class B Distribution Account;
(iii) an amount equal to the excess, if any, of the
Class A Principal Distribution for such Distribution Date over the
portion of Principal Collections and Interest Collections for such
Distribution Date remaining after the distribution of the Class A
Interest Distribution and the Class B Interest Distribution for such
Distribution Date will be deposited into the Class A Distribution
Account; and
(iv) an amount equal to the excess, if any, of the Class
B Principal Distribution for such Distribution Date over the portion of
Principal Collections and Interest Collections for such Distribution
Date remaining after the distribution of the Class A Interest
Distribution, the Class B Interest Distribution and the Class A
Principal Distribution for such Distribution Date will be deposited into
the Class B Distribution Account.
The Collateral Agent shall be entitled to conclusively rely on the Servicer's
instruction and the Servicer's Certificate without investigation.
(c) If the amount on deposit in the Reserve Fund on any
Distribution Date (after giving effect to all other deposits thereto and
withdrawals therefrom to be made on such Distribution Date) is greater than the
Specified Reserve Balance for such Distribution Date, the Servicer shall
instruct the Collateral Agent in writing to distribute the amount of the excess
to the Seller on such Distribution Date. On the date on which the Trust
terminates, any funds remaining in the Reserve Fund (after all other
distributions to be made from the Reserve Fund pursuant to this Section 4.6 have
been made) shall be distributed to the Seller. Amounts properly distributed to
the Servicer for distribution to the Seller pursuant to Section 4.1(b)(ii) or
this Section 4.6(c) shall not be available under any circumstances to the Trust,
the Trustee or the Certificateholders and the Seller shall in no event
thereafter be required to refund any such distributed amounts.
SECTION 4.7. Statements to Certificateholders. On each Determination
Date, the Servicer shall provide to the Trustee (with a copy to the Rating
Agencies) for the Trustee to forward to each Certificateholder of record a
statement (each a "Distribution Date Statement") setting forth with respect to
the related Collection Period at least the following information as to the
Certificates to the extent applicable:
(i) the amount of the distribution allocable to
principal of the Class A Certificates and the Class B Certificates; the
amount of the distribution allocable to interest on the Class A
Certificates and the Class B Certificates;
(ii) the Pool Balance as of the close of business on the
last day of such Collection Period;
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(iii) the amount of the Servicing Fee paid to the
Servicer with respect to such Collection Period and the Class A
Percentage and Class B Percentage of the Servicing Fee paid to the
Servicer with respect to such Collection Period;
(iv) the amount of any Class A Interest Carryover
Shortfall, Class A Principal Carryover Shortfall, Class B Interest
Carryover Shortfall and Class B Principal Carryover Shortfall on the
Distribution Date immediately following such Collection Period and the
change in such amounts from those with respect to the immediately
preceding Distribution Date;
(v) the Class A Pool Factor and the Class B Pool Factor
as of such Distribution Date, after giving effect to payments allocated
to principal reported under clause (i) above;
(vi) the amount of the aggregate Realized Losses, if
any, for such Collection Period;
(vii) the aggregate Principal Balance of all Receivables
which were more than 30, 60 and 90 days delinquent as of the close of
business on the last day of such Collection Period;
(viii) the amount on deposit in the Reserve Fund on such
Distribution Date, after giving effect to distributions made on such
Distribution Date;
(ix) the Class A Principal Balance and the Class B
Principal Balance as of such Distribution Date, after giving effect to
payments allocated to principal reported under clause (i) above;
(x) the amount otherwise distributable to the Class B
Certificateholders that is being distributed to the Class A
Certificateholders on such Distribution Date; and
(xi) the aggregate Purchase Amount of Receivables
repurchased by the Seller or purchased by the Servicer with respect to
such Collection Period.
Each amount set forth pursuant to clauses (i), (ii),(iii) and (iv) above shall
be expressed in the aggregate and as a dollar amount per $1,000 of original
denomination of a Certificate. Copies of such statements may be obtained by
Certificate Owners by a request in writing addressed to the Trustee.
(b) Within a reasonable period of time after the end of
each calendar year, but not later than the latest date permitted by law, the
Trustee shall mail, to each Person who at any time during such calendar year
shall have been a Certificateholder, a statement containing the sum of the
amounts described in clauses (i), (ii), (iii) and (iv) above for such calendar
year or, in the event such Person shall have been a Certificateholder during a
portion of such calendar year, for the applicable portion of such year, for the
purposes of such
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Certificateholder's preparation of Federal income tax returns. In addition, the
Servicer shall furnish to the Trustee for distribution to such Person at such
time any other information necessary under applicable law for the preparation of
such income tax returns.
(c) The Servicer, at its own expense, shall cause a firm
of nationally recognized accountants to prepare any state or local tax returns
required to be filed by the Trust, and the Trustee shall execute and file such
returns if requested to do so by the Servicer. The Trustee, upon request, will
promptly furnish the Servicer with all such information known to the Trustee as
may be reasonably required in connection with the preparation of all Texas tax
returns of the Trust.
ARTICLE V.
[Intentionally Omitted]
ARTICLE VI.
The Certificates
SECTION 6.1. The Certificates. The Certificates shall be issued as Class
A Certificates and Class B Certificates, substantially in the form of Exhibits A
and B hereto, respectively. The Certificates shall be issued in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof;
provided, however, that one Class A Certificate and one Class B Certificate may
be issued in a denomination that represents any remaining portion of the
Original Class A Principal Balance and the Original Class B Principal Balance,
as the case may be. The Certificates shall be executed by the Trustee on behalf
of the Trust by manual or facsimile signature of an Authorized Officer of the
Trustee. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trustee, shall be valid and binding obligations of the
Trust, notwithstanding that such individuals 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 6.2. Authentication and Delivery of Certificates. The Trustee
shall cause to be authenticated and delivered to or upon the written order of
the Seller, in exchange for the Receivables and other Trust Property,
simultaneously with the sale, assignment and transfer to the Trustee of the
Receivables, and the constructive delivery to the Trustee of the Receivables
Files and the other components of the Trust existing as of the Closing Date,
Certificates duly authenticated by the Trustee in authorized denominations
equaling in the aggregate the sum of the Original Class A Principal Balance and
the Original Class B Principal Balance, and evidencing the entire ownership of
the Trust. No Certificate shall entitle the Holder thereof 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 the form of Certificates attached hereto as Exhibit A and Exhibit B
respectively, executed by the Trustee by manual signature. Such authentication
shall constitute conclusive evidence, and the only
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evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the
Closing Date. Any Certificates issued thereafter shall be dated the date of
their authentication.
SECTION 6.3. Registration of Transfer and Exchange of Certificates. The
Trustee shall maintain, or cause to be maintained, at the office or agency to be
maintained by it in accordance with Section 6.9, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Class A Certificate or Class B Certificate at such office or
agency, the Trustee shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Class A Certificates or
Class B Certificates, as the case may be, in authorized denominations of a like
aggregate amount. At the option of a Certificateholder, Class A Certificates or
Class B Certificates may be exchanged for other Class A Certificates or Class B
Certificates, as the case may be, of authorized denominations of a like
aggregate amount at the office or agency maintained by the Trustee in accordance
with Section 6.9. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
duly executed by the Holder and in a form satisfactory to the Trustee. No
service charge shall be made for any registration of transfer or exchange of
Certificates, but the Trustee may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates. All Certificates surrendered for
registration of transfer or exchange shall be canceled and disposed of in a
commercially reasonable manner approved by the Trustee.
A Class B Certificate may not be directly or indirectly sold or
transferred to, or purchased or acquired by, or on behalf of (1) any employee
benefit plan, retirement arrangement, individual retirement account or xxxxx
plan which is subject to either Title I of ERISA, or Section 4975 of the Code
(each, a "Plan"), or (2) any entity whose source of funds to be used for the
purchase of such Class B Certificate includes the assets of any such Plan, other
than an "Insurance Company General Account" as defined in, and which complies
with the provisions of, Prohibited Transaction Exemption 95-60 issued by the
United States Department of Labor. Every transferee of a Class B Certificate
represented by a Book-Entry Certificate shall be deemed to have represented and
warranted to the Seller and the Trustee that it is not an entity described in
either clause (1) or (2) above. Each transferee of a Definitive Certificate
shall deliver a Benefit Plan Affidavit to the Seller and the Trustee in the form
of Exhibit E. Neither the Servicer nor the Trustee will incur any liability for
any transfers made in accordance with this Section 6.3.
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 duly executed by the Certificateholder or his
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Trustee, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Trustee in addition to, or in substitution for,
STAMP, all in accordance with the Exchange Act.
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SECTION 6.4. Reserved.
SECTION 6.5. Reserved.
SECTION 6.6. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Class A Certificate or Class B Certificate shall be surrendered to
the Trustee, or if the Trustee shall receive evidence to its satisfaction of the
destruction, loss or theft of any Class A Certificate or Class B Certificate and
(b) there shall be delivered to the Trustee such security or indemnity as may be
required to save the Trustee harmless, then in the absence of notice that such
Class A Certificate or Class B Certificate shall have been acquired by a bona
fide purchaser, the Trustee shall execute, authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Class A
Certificate or Class B Certificate, a new Class A Certificate or Class B
Certificate of like tenor and denomination. In connection with the issuance of
any new Certificate under this Section 6.6, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any replacement Certificate issued pursuant to
this Section 6.6 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 6.7. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee 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 4.5 and for all
other purposes, and the Trustee shall not be bound by any notice to the
contrary.
SECTION 6.8. Access to List of Certificateholders' Names and Addresses.
The Trustee shall furnish or cause to be furnished to the Servicer, within 15
days after receipt by the Trustee of a request therefor from the Servicer in
writing, in such form as the Servicer may reasonably require, a list of the
names and addresses of the Certificateholders as of the most recent Record Date.
If Definitive Certificates have been issued, the Trustee, upon written request
by holders of Class A Certificates or Class B Certificates evidencing not less
than 25% of the aggregate outstanding principal balance of either the Class A
Certificates or the Class B Certificates, as the case may be, will, within
fifteen days after the receipt of such request, afford such Class A
Certificateholders or Class B Certificateholders access during normal business
hours to the most current list of Certificateholders for purposes of
communicating with other Certificateholders with respect to their rights under
the Agreement. Each Certificateholder, by receiving and holding a Certificate,
shall be deemed to have agreed that none of the Seller, the Servicer or the
Trustee is accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 6.9. Maintenance of Office or Agency. The Trustee shall
maintain, or cause to be maintained, at its expense, in the Borough of
Manhattan, The City of New York, an office or agency where Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustee in respect of the Certificates and this Agreement
may be served. The Trustee initially designates 0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
0-X,
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Institutional Trust Group Window, Xxx Xxxx, XX 00000 or by mail to the Corporate
Trust Office as its office for such purposes. The Trustee shall give prompt
written notice to the Servicer and to Certificateholders of any change in the
location of any such office or agency.
SECTION 6.10. Book-Entry Certificates. Upon original issuance, the Class
A Certificates and the Class B Certificates shall be issued in the form of one
or more typewritten Certificates representing the Book-Entry Certificates, to be
delivered to DTC or its custodian, by, or on behalf of, the Seller. Such
Certificates shall initially be registered on the Certificate Register in the
name of Cede & Co., the nominee of DTC, and no Certificate Owner will receive a
definitive certificate representing such Certificate Owner's interest in the
Class A Certificates or the Class B Certificates, as the case may be, except as
provided in Section 6.12. Unless and until definitive, fully-registered
Certificates ("Definitive Certificates") have been issued to Class A
Certificateholders or Class B Certificateholders, as the case may be, pursuant
to Section 6.12:
(i) the provisions of this Section 6.10 shall be in full
force and effect, the Seller, the Servicer and the Trustee may deal with
the Clearing Agency for all purposes (including the making of
distributions on the Certificates and the taking of actions by the
Certificateholders) as the authorized representative of the Certificate
Owners;
(ii) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law, the rules, regulations and procedures of the
Clearing Agency and agreements between such Certificate Owners and the
Clearing Agency and all references in this Agreement to actions by
Certificateholders shall refer to actions taken by the Clearing Agency
upon instructions from the Clearing Agency Participants, and all
references in this Agreement to distributions, notices, reports and
statements to Certificateholders shall refer to distributions, notices,
reports and statements to the Clearing Agency or its nominee, as
registered holder of the Certificates, as the case may be, for
distribution to Certificate Owners in accordance with the rules,
regulations and procedures of the Clearing Agency;
(iii) to the extent that the provisions of this Section
6.10 conflict with any other provisions of this Agreement, the
provisions of this Section 6.10 shall control;
(iv) pursuant to the Depository Agreement, DTC will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest on the Certificates
to the Clearing Agency Participants, for distribution by such Clearing
Agency Participants to the Certificate Owners or their nominees; and
(v) Certificate Owners may own beneficial interest in
Certificates representing original denominations of $1,000 and integral
multiples of $1,000 in excess thereof except for any residual amount of
Original Class A Principal Balance or Original Class B Principal
Balance.
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For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of
Certificates evidencing specified percentages of the aggregate outstanding
principal balance of such Certificates, such direction or consent may be given
by Certificate Owners having interests in the requisite percentage, acting
through the Clearing Agency.
SECTION 6.11. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 6.12, the Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency.
SECTION 6.12. Definitive Certificates. If (i) (A) the Seller advises the
Trustee in writing that the Clearing Agency is no longer willing or able
properly to discharge its responsibilities under the Depository Agreement and
(B) the Trustee or the Servicer is unable to locate a qualified successor, (ii)
the Seller, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Servicing Termination, Holders of Certificates
evidencing not less than a majority of the aggregate outstanding principal
balance of the Class A Certificates and the Class B Certificates, taken together
as a single Class, advise the Trustee and the Clearing Agency through the
Clearing Agency Participants in writing, and the Clearing Agency shall so notify
the Trustee, that the continuation of a book-entry system through the Clearing
Agency is no longer in their best interests, the Trustee shall notify the
Clearing Agency which shall be responsible to notify the Certificate Owners of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners, requesting the same. Upon surrender to the
Trustee by the Clearing Agency of the Certificates registered in the name of the
nominee of the Clearing Agency, accompanied by re-registration instructions from
the Clearing Agency for registration, the Trustee shall execute, on behalf of
the Trust, authenticate and deliver Definitive Certificates in accordance with
such instructions. The Servicer shall arrange for, and will bear all costs of,
the printing and issuance of such Definitive Certificates. Neither the Seller,
the Servicer nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, the Trustee
shall recognize the Holders of the Definitive Certificates as Certificateholders
hereunder. Definitive Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the Trustee,
as evidenced by its execution thereof. Neither the Trust, the Seller, the
Servicer nor the Trustee will have any responsibility or obligation to any
Clearing Agency Participants or the Persons for whom they act as nominees with
respect to (1) the accuracy of any records maintained by DTC or any Clearing
Agency Participants, (2) the payment by DTC or any Clearing Agency Participant
of any amount due to any beneficial owner in respect of the Principal Balance
of, or interest on, the Certificates, (3) the delivery by any Clearing Agency
Participant of any notice to any Certificate Owner which is required or
permitted hereunder to be given to Certificateholders or (4) any other action
taken by DTC or its nominee as the Certificateholder.
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ARTICLE VII.
The Seller
SECTION 7.1. Representations of Seller. The Seller makes the following
representations on which the Trustee is deemed to have relied in accepting the
Receivables and other Trust Property in trust and in executing and
authenticating the Certificates. The representations are being made as of the
execution and delivery of this Agreement and shall survive the sale and
assignment of the Receivables and other Trust Property to the Trustee.
(a) Organization and Good Standing. The Seller is duly
organized and validly existing as a national banking association with the
corporate power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is presently conducted,
and had at all relevant times, and has, the power, authority and legal right to
acquire and own the Receivables.
(b) Power and Authority of the Seller. The Seller has
the corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; the Seller has full corporate power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trustee and the Seller has duly authorized such sale and
assignment to the Trustee by all necessary corporate action; and the execution,
delivery and performance of this Agreement been duly authorized by the Seller by
all necessary corporate action.
(c) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Seller, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization and similar laws now or hereafter in
effect relating to creditors' rights generally or the rights of creditors of
banks, the deposit accounts of which are insured by the FDIC, and subject to
general principles of equity (whether applied in a proceeding at law or in
equity).
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time or both) a default under, the articles of
association or by-laws of the Seller, or any material 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 pursuant to this Agreement); nor violate any law or, to the best of
its 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. There are no proceedings or
investigations pending against the Seller or, to its best knowledge, threatened
against the Seller, 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 or the
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Certificates, (ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement, (iii)
seeking any determination or ruling that could reasonably be expected to have a
material and adverse effect on the performance by the Seller of its obligations
under, or the validity or enforceability of this Agreement or the Certificates
or (iv) seeking to affect adversely the Federal or State income tax or ERISA
attributes of the Trust or the Certificates.
(f) All Consents. All authorizations, consents, orders
or approvals of or registrations or declarations with any court, regulatory
body, administrative agency or other government instrumentality required to be
obtained, effected or given by the Seller in connection with the execution and
delivery by the Seller of this Agreement and the performance by the Seller of
the transactions contemplated by this Agreement have been duly obtained,
effected or given and are in full force and effect, except where failure to
obtain the same would not have a material adverse effect upon the rights of the
Trust or the Certificateholders.
SECTION 7.2. Continued Existence. During the term of this Agreement,
subject to Sections 7.4 and 8.3, the Seller will keep in full force and effect
its existence, rights and franchises as a national banking association under the
laws of the United States and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement and each
other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated hereby.
SECTION 7.3. 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.
(a) The Seller shall indemnify, defend and hold harmless
the Trust and the Trustee and the Trustee's officers, directors, employees and
agents from and against any taxes that may at any time be asserted against any
such Person with respect to the transactions contemplated in this Agreement
(except any income taxes arising out of fees paid to the Trustee and except any
taxes to which the Trustee may otherwise be subject to not related to this
Agreement), including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but, in the case of the Trust,
not including any taxes asserted with respect to, and as of the date of, the
issuance and original sale of the Certificates or asserted with respect to
ownership of the Receivables or Federal or other income taxes arising out of
distributions on the Certificates) and costs and expenses in defending against
the same or in connection with any application relating to the Certificates
under any State securities laws.
(b) The Seller shall indemnify, defend and hold harmless
the Trust, the Trustee and the Certificateholders and the officers, directors,
employees and agents of the Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities to the extent arising out of,
or imposed upon such Person through (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 (ii) the
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Seller's or the Trust's violation of Federal or State securities laws in
connection with the offering and sale of the Certificates or in connection with
any application relating to the Certificates under any State securities laws.
(c) The Seller shall be liable as primary obligor for,
and shall indemnify, defend and hold harmless the Trustee and its officers,
directors, employees and agents from and against any and all costs, expenses,
losses, claims, damages and liabilities (including reasonable attorneys' fees
and expenses) arising out of, or incurred in connection with, this Agreement,
the Trust Property, the acceptance or performance of the trusts and duties set
forth herein or the action or the inaction of the Trustee hereunder (including
the Trustee's execution of any state or local tax return pursuant to Section
4.7(c)) except to the extent that such cost, expense, loss, claim, damage or
liability: (i) shall be due to the willful misfeasance, bad faith or negligence
of the Trustee or (ii) shall arise from any breach by the Trustee of its
covenants, representations or warranties under this Agreement. Such liability
shall survive the termination of the Trust.
(d) The Seller shall pay any and all taxes levied or
assessed upon all or any part of the Trust Property (other than those taxes
expressly excluded from the Seller's responsibilities pursuant to the
parentheticals in paragraph (a) above).
Indemnification under this Section shall survive the resignation
or removal of the Trustee and the termination of this Agreement and shall
include reasonable fees and expenses of counsel and other expenses of
litigation. If the Seller shall have made any indemnity payments pursuant to
this Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Seller, without interest.
SECTION 7.4. 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, shall be the successor to the Seller
without the execution or filing of any document or any further act by any of the
parties to this Agreement; provided, however, that the Seller hereby covenants
that it will not consummate any of the foregoing transactions except upon
satisfaction of the following: (i) the surviving Seller if other than Bank One,
Texas, N.A., either (a) executes an agreement of assumption to perform every
obligation of the Seller under this Agreement or (b) delivers to the Trustee an
Opinion of Counsel stating that the surviving Seller is obligated to perform
every obligation of the Seller under this Agreement without the execution of an
agreement of assumption or any other action not previously taken by the
surviving Seller, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 2.2 or 7.1 shall have been
breached, (iii) the Seller shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption, if any, comply with this
Section and that all conditions precedent, if any, provided for in this
Agreement relating to such transaction have been complied with, and that the
Rating Agency Condition shall have been satisfied with respect to such
transaction,
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(iv) such transaction will not result in a material adverse Federal or State tax
consequence to the Trust or the Certificateholders and (v) unless Bank One,
Texas, N.A., is the surviving entity, the Seller shall have delivered to the
Trustee an Opinion of 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 interests.
SECTION 7.5. 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 advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters arising
under this Agreement (provided that such reliance shall not limit in any way the
Seller's obligations under Section 2.2). The Seller shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its obligations under this Agreement, and that in its opinion may
involve it in any expense or liability except this shall not relieve the Seller
from its obligations to indemnify pursuant to Section 7.3.
SECTION 7.6. Seller May Own Certificates. The Seller and any Affiliate
thereof may in its individual or any other capacity become the owner or pledgee
of Certificates with the same rights as it would have if it were not the Seller
or an Affiliate thereof, except as expressly provided herein.
ARTICLE VIII.
The Servicer
SECTION 8.1. Representations of Servicer. The Servicer makes the
following representations on which the Trustee is deemed to have relied in
accepting the Receivables and other Trust Property in trust and in
authenticating the Certificates. The representations are being made as of the
execution and delivery of this Agreement and shall survive the sale and
assignment of the Receivables and other Trust Property to the Trustee.
(a) Organization and Good Standing. The Servicer is duly
organized and validly existing as a national banking association with the
corporate power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is presently conducted,
and had at all relevant times, and has, the power, authority and legal right to
service the Receivables.
(b) Due Qualification. The Servicer is duly qualified to
do business and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or leasing of property or the conduct of
its business (including the servicing of the Receivables as required by this
Agreement) shall require such qualifications.
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(c) Power and Authority of the Servicer. The Servicer
has the corporate power and authority to execute and deliver this Agreement and
to perform its obligations hereunder, and the execution, delivery and
performance of this Agreement have been duly authorized by the Servicer by all
necessary corporate action. All authorizations, consents, orders or approvals of
or registrations or declarations with any court, regulatory body, administrative
agency or other governmental instrumentality required to be obtained, effected
or given by the Servicer in connection with the execution and delivery by the
Servicer of this Agreement and the performance by the Servicer of the
transactions contemplated by this Agreement have been duly obtained, effected or
given and are in full force and effect, except where failure to obtain the same
would not have a material adverse effect upon the rights of the Trust or the
Certificateholders.
(d) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Servicer, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium,
fraudulent conveyance, reorganization and similar laws now or hereafter in
effect relating to creditors' rights generally or the rights of creditors of
banks the deposit accounts of which are insured by the FDIC, and subject to
general principles of equity (whether applied in a proceeding at law or in
equity).
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time or both) a default under the articles of
association or by-laws of the Servicer, or any material indenture, agreement or
other instrument to which the Servicer 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 pursuant to this Agreement); nor violate any law or, to the best of
its knowledge, any order, rule or regulation applicable to the Servicer of any
court or of any federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Servicer or its
properties.
(f) No Proceedings. There are no proceedings or
investigations pending against the Servicer, or, to its best knowledge,
threatened against the Servicer, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Servicer or its properties: (i) asserting the invalidity of this
Agreement or the Certificates, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that could reasonably be
expected to have a material and adverse effect on the performance by the
Servicer of its obligations under, or the validity or enforceability of this
Agreement or the Certificates or (iv) seeking to affect adversely the Federal or
State income tax or ERISA attributes of the Trust or the Certificates.
(g) No Amendment or Waiver. No provision of any
Receivable has been waived, altered or modified in any respect, except pursuant
to a document, instrument or writing included in the relevant Receivable File,
and no such amendment, waiver, alteration or
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modification causes such Receivable not to conform to the other warranties
contained in this Section or those of the Seller contained in Section 2.2.
(h) Location of Receivable Files. The Receivable Files
are kept in one of the offices of the Servicer or the Subcustodian specified in
Schedule B, or at such other office specified in accordance with Section 2.5.
SECTION 8.2. Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement, including any obligations
delegated by the Servicer to a Subservicer.
The Servicer shall indemnify, defend and hold harmless the Trust,
the Trustee, the Seller and the Certificateholders and any of the officers,
directors, employees and agents of the Trustee or the Seller from any and all
costs, expenses, losses, claims, damages and liabilities (including reasonable
attorneys' fees and expenses) to the extent arising out of, or imposed upon any
such Person through, the negligence, willful misfeasance or bad faith of the
Servicer in the performance of its obligations and duties under this Agreement
or in the performance of the obligations and duties of any Subservicer under any
subservicing agreement or by reason of the reckless disregard of its obligations
and duties under this Agreement or by reason of the reckless disregard of the
obligations of any Subservicer under any subservicing agreement, where the final
determination that any such cost, expense, loss, claim, damage or liability
arose out of, or was imposed upon any such Person through, any such negligence,
willful misfeasance, bad faith or recklessness on the part of the Servicer or
any Subservicer, is established by a court of law, by an arbitrator or by way of
settlement agreed to by the Servicer. Notwithstanding the foregoing, if the
Servicer is rendered unable, in whole or in part, by virtue of an act of God,
act of war, fires, earthquake or other natural disasters, to satisfy its
obligations under this Agreement, the Servicer shall not be deemed to have
breached any such obligation upon the sending of written notice of such event to
the other parties hereto, for so long as the Servicer remains unable to perform
such obligation as a result of such event. This provision shall not be construed
to limit the Servicer's or any other party's rights, obligations, liabilities,
claims or defenses which arise as a matter of law or pursuant to any other
provision of this Agreement.
The Servicer shall indemnify, defend and hold harmless the Trust,
the Trustee, the Seller, the Certificateholders or any of the officers,
directors, employees and agents of the Trustee or the Seller from any and all
costs, expenses, losses, claims, damages and liabilities (including reasonable
attorneys' fees and expenses) to the extent arising out of or imposed upon any
such Person as a result of any compensation payable to any Subcustodian or
Subservicer (including any fees payable in connection with the release of any
Receivable File from the custody of such Subcustodian or in connection with the
termination of the servicing activities of such Subservicer with respect to any
Receivable) whether pursuant to the terms of any subservicing agreement or
otherwise.
SECTION 8.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (a) into which the Servicer may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Servicer shall be a party or (c) which may
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succeed to the properties and assets of the Servicer, substantially as a whole,
shall be the successor to the Servicer without the execution or filing of any
document or any further act by any of the parties to this Agreement; provided,
however, that the Servicer hereby covenants that it will not consummate any of
the foregoing transactions except upon satisfaction of the following: (i) the
surviving Servicer if other than Bank One, Texas, N.A., either (a) executes an
agreement of assumption to perform every obligation of the Servicer under this
Agreement or (b) delivers to the Trustee an Opinion of Counsel stating that the
surviving Seller is obligated to perform every obligation of the Seller under
this Agreement without the execution of an agreement of assumption or other
action not previously taken by the surviving Seller, (ii) immediately after
giving effect to such transaction, no representation or warranty made pursuant
to Section 8.1 shall have been breached and no Event of Servicing Termination,
and no event that, after notice or lapse of time, or both, would become an Event
of Servicing Termination shall have occurred and be continuing, (iii) the
Servicer shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption, if any, comply with this Section and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, and that the Rating Agency Condition shall
have been satisfied with respect to such transaction, and (iv) such transaction
will not result in a material adverse Federal or State tax consequence to the
Trust or the Certificateholders.
SECTION 8.4. Limitation on Liability of Servicer and Others. Neither the
Servicer nor any of its directors, officers, employees or agents shall be under
any liability to the Trust or the Certificateholders, except as provided under
this Agreement, for any action taken or for refraining from the taking of any
action in good faith by the Servicer or any Subservicer pursuant to this
Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such person against any liability that
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties under this Agreement. The Servicer or any Subservicer and
any of their respective directors, officers, employees or agents 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 otherwise provided in this Agreement the Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
that shall be incidental to its duties to service the Receivables in accordance
with this Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer, may (but shall not be required
to) undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement to protect the interests of the Certificateholders
under this Agreement.
SECTION 8.5. Bank One, Texas, N.A. Not To Resign as Servicer. Subject to
the provisions of Section 8.3, Bank One, Texas, N.A., hereby agrees not to
resign from the obligations and duties hereby imposed on it as Servicer under
this Agreement except upon determination that the performance of its duties
hereunder shall no longer be permissible under applicable law or if such
resignation is required by regulatory authorities. Notice of any such
determination permitting the resignation of Bank One, Texas, N.A., as Servicer
shall be
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communicated to the Trustee at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee concurrently with or promptly
after such notice. No such resignation shall become effective until the earlier
of the Trustee or a successor Servicer having assumed the responsibilities and
obligations of the resigning Servicer in accordance with Section 9.2 or the date
upon which any regulatory authority requires such resignation.
SECTION 8.6. Existence. Subject to the provisions of Sections 7.4 and
8.3, during the term of this Agreement, Bank One, Texas, N.A., will keep in full
force and effect its existence, rights and franchises as a national banking
association under the laws of the jurisdiction of its organization.
SECTION 8.7. Tax Accounting. The Servicer shall prepare any Federal tax
returns of the Trust in accordance with the Code and any regulations (including,
to the extent applicable by their terms, proposed regulations) thereunder. To
the extent not inconsistent with any such regulations, such returns shall be
prepared in a manner consistent with the following rules:
(a) The Class A Certificateholders shall be treated as
owning the Class A Percentage of Interest Collections (but limited to the Class
A Certificate Rate plus the Servicing Fee Rate) and Principal Collections and
the Class B Certificateholders shall be treated as owning the Class B Percentage
of Interest Collections (but limited to the Class B Certificate Rate plus the
Servicing Fee Rate) and Principal Collections. The Seller shall be treated as
having retained the stripped coupons on the Class A Percentage and the Class B
Percentage of each Receivable equal to the difference between the APR of such
Receivable and the portion owned by the Class A and Class B Certificateholders,
respectively, pursuant to this paragraph.
(b) To the extent that as a result of the subordination
provisions of this Agreement, actual cash distributions to the Class B
Certificateholders are less than the amount set forth in subsection (a), the
Class B Certificateholders shall be deemed to have (i) received the amount set
forth in subsection (a), (ii) paid such difference to the Class A
Certificateholders pursuant to a guaranty of the Class A Certificates, and (iii)
become subrogated to the rights of the Class A Certificateholders to recovery of
the amounts so paid.
SECTION 8.8 Covenants. The Servicer agrees that it will not permit any
of the Subservicing Agreements to be amended in any manner inconsistent with the
provisions of this Agreement.
ARTICLE IX.
Servicing Termination
SECTION 9.1. Events of Servicing Termination. If any one of the
following events ("Events of Servicing Termination") shall occur and be
continuing:
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(a) any failure by the Servicer to deliver to the
Trustee for deposit in any of the Accounts or the Reserve Fund any required
payment or to direct the Trustee or the Collateral Agent, as applicable, to make
any required distributions therefrom that shall continue unremedied for a period
of five Business Days after written notice of such failure is received by the
Servicer from the Trustee or the Collateral Agent, as applicable, or after
discovery of such failure by an Authorized Officer of the Servicer; or
(b) any failure by the Servicer duly to observe or to
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Agreement, which failure shall (i) materially and
adversely affect the rights of either the Class A Certificateholders or the
Class B Certificateholders and (ii) continue unremedied for a period of 60 days
after the date on which written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Servicer by the Trustee or (B) to the
Servicer and to the Trustee by Holders of Certificates evidencing not less than
25% of the aggregate outstanding principal balance of the Class A Certificates
and Class B Certificates taken together as a single class (or for such longer
period, not in excess of 120 days, as may be reasonably necessary to remedy such
default; provided that such default is capable of remedy within 120 days and the
Servicer delivers an Officer's Certificate to the Trustee to such effect and to
the effect that the Servicer has commenced or will promptly commence, and will
diligently pursue, all reasonable efforts to remedy such default); or
(c) an Insolvency Event occurs with respect to the
Servicer or any successor;
then, and in each and every case, so long as the Event of Servicing Termination
shall not have been remedied within any applicable cure period, either the
Trustee, or the Holders of Certificates evidencing not less than a majority of
the aggregate outstanding principal balance of the Class A Certificates and the
Class B Certificates taken together as a single class, by notice then given in
writing to the Servicer and the Trustee may terminate all the rights and
obligations (other than the obligations set forth in Section 8.2) of the
Servicer under this Agreement. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates or the Receivables or otherwise, shall,
without further action, pass to and be vested in the Trustee or such successor
Servicer as may be appointed under Section 9.2; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the predecessor Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise. The predecessor Servicer shall cooperate
with the successor Servicer and the Trustee in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the successor Servicer for administration by it of all
cash amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received by it with respect to a Receivable. All
reasonable costs and expenses (including attorneys' fees) incurred in connection
with transferring the Receivable Files to the successor Servicer and amending
this Agreement to reflect such succession as Servicer pursuant to this
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Section shall be paid by the predecessor Servicer upon presentation of
reasonable documentation of such costs and expenses. Upon receipt of notice of
the occurrence of an Event of Servicing Termination, the Trustee shall give
notice thereof to the Rating Agencies.
SECTION 9.2. Appointment of Successor. Upon the Servicer's receipt of
notice of termination, pursuant to Section 9.1 or the Servicer's resignation in
accordance with the terms of this Agreement, the predecessor Servicer shall
continue to perform its functions as Servicer under this Agreement, in the case
of termination, only until the date specified in such termination notice or, if
no such date is specified in a notice of termination, until receipt of such
notice and, in the case of resignation, until the earlier of (x) the date 45
days from the delivery to the Trustee of written notice of such resignation (or
written confirmation of such notice) in accordance with the terms of this
Agreement and (y) the date upon which the predecessor Servicer shall become
unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the Servicer's termination
hereunder, the Trustee shall appoint a successor Servicer, and the successor
Servicer shall accept its appointment by a written assumption in form acceptable
to the Trustee. In the event that a successor Servicer has not been appointed at
the time when the predecessor Servicer has ceased to act as Servicer in
accordance with this Section, the Trustee without further action shall
automatically be appointed the successor Servicer and the Trustee shall be
entitled to the Servicing Fee. Notwithstanding the above, the Trustee shall, if
it shall be unwilling or unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established institution, having a net
worth of not less than $50,000,000 and whose regular business shall include the
servicing of automotive receivables, as the successor to the Servicer under this
Agreement.
(b) Upon appointment, the successor Servicer (including
the Trustee acting as successor servicer) shall be the successor in all respects
to the predecessor Servicer and shall be subject to all the responsibilities,
duties and liabilities of the Servicer arising thereafter and shall be entitled
to the Servicing Fee and all the rights granted to the Servicer by the terms and
provisions of this Agreement. No successor Servicer shall be liable for any acts
or omissions of any predecessor Servicer.
(c) The Servicer may not resign unless it is prohibited
from serving as such by law or by requirement of any regulatory authority.
SECTION 9.3. Payment of Servicing Fee. If the Servicer shall change, the
predecessor Servicer shall be entitled to receive any accrued and unpaid
Servicing Fees through the date of the successor Servicer's acceptance hereunder
in accordance with Section 3.8.
SECTION 9.4. Notification to Certificateholders. Upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article IX,
the Trustee shall give prompt written notice thereof to Certificateholders and
the Rating Agencies.
SECTION 9.5. Waiver of Past Events of Servicing Termination. The Holders
of Certificates evidencing not less than a majority of the aggregate outstanding
principal balance of the Class A Certificates and the Class B Certificates taken
together as a single class, may, on behalf of all Certificateholders, waive in
writing any default by the Servicer in the performance
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of its obligations hereunder and its consequences, except a default in making
any required deposits to or payments from any of the Accounts or the Reserve
Fund in accordance with this Agreement. Upon any such waiver of a past default,
such default shall cease to exist, and any Events of Servicing Termination
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 thereto.
ARTICLE X.
The Trustee
SECTION 10.1. Acceptance by Trustee. The Trustee, by its execution of
this Agreement, accepts all consideration conveyed by the Seller pursuant to
Section 2.1 and the Trust created hereunder and declares that it shall hold such
consideration in trust upon the terms hereof set forth for the benefit of the
Certificateholders.
SECTION 10.2. Duties of Trustee. The Trustee, both prior to and after
the curing of an Event of Servicing Termination, undertakes to perform only such
duties as are specifically set forth in this Agreement and no implied covenants
or obligations shall be read into this Agreement against the Trustee. If an
Event of Servicing Termination shall have occurred and shall not have been cured
(the appointment of a successor Servicer (including the Trustee) to constitute a
cure for the purposes of this Article), 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 man would exercise or use
under the circumstances in the conduct of his own affairs; provided, however,
that if the Trustee assumes the duties of the Servicer pursuant to Section 9.2,
the Trustee in performing such duties shall use the degree of skill and
attention required by Section 3.1.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee that are required specifically to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they conform to the requirements of this Agreement.
(c) 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, its own bad faith or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Servicing
Termination, and after the curing of all such Events of Servicing
Termination 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 are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee, the permissible right of the Trustee
(solely in its capacity as such) to do things enumerated in this
Agreement shall not be construed as a duty and, in the absence of bad
faith on the
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part of the Trustee, or manifest error, the Trustee (solely in its
capacity as such) 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 to the requirements of
this Agreement;
(ii) The Trustee shall not be liable for an error of
judgment made in good faith by an officer of the Trustee, unless it
shall be proved that the Trustee shall have been negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to
any action taken, suffered, or omitted to be taken in good faith in
accordance with the direction of the Holders of Certificates evidencing
not less than a majority of the aggregate outstanding principal balance
of the Class A Certificates and the Class B Certificates taken together
as a single class, as set forth in Section 9.1, relating to the time,
method and place of conducting any proceeding or any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Agreement.
(d) The Trustee (solely in its capacity as such) shall
not be required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or adequate indemnity reasonably
satisfactory to it against such risk or liability shall not be reasonably
assured to it, and none of the provisions contained in this 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 under this Agreement
except during such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this
Agreement, the Trustee shall take no action reasonably likely to impair the
security interests created or existing under any Receivable or Financed Vehicle
or to impair the value of any Receivable or Financed Vehicle.
(f) The Trustee shall have no power to vary the corpus
of the Trust including (i) accepting any substitute obligation for a Receivable
initially assigned to the Trustee under this Agreement, (ii) adding any other
investment, obligation or security except for investments of moneys in the
Accounts as permitted in this Agreement, or (iii) withdrawing any Receivable,
except for a withdrawal permitted under this Agreement.
SECTION 10.3. Trustee's Certificate. As soon as practicable after each
Transfer Date on which Receivables shall be assigned to the Seller pursuant to
Section 2.3 or 11.2, as applicable, or to the Servicer pursuant to Section 3.7,
the Trustee shall execute a certificate, prepared by the Servicer, including its
date and the date of the Agreement, and accompanied by a copy of the Servicer's
Certificate for the related Collection Period. The Trustee's certificate shall
operate, as of such Transfer Date, as an assignment pursuant to Section 10.4.
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SECTION 10.4. Trustee's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by the Seller pursuant to Section 2.3 or
11.2, or purchased by the Servicer pursuant to Section 3.7, the Trustee shall
assign, without recourse, representation or warranty, to the Seller or to the
Servicer, as the case may be, all the Trustee's right, title and interest in and
to such Receivables, and all security and documents and all other Trust Property
conveyed pursuant to Section 2.1 with respect to such Receivables. Such
assignment shall be a sale and assignment outright, and not for security. If, in
any enforcement suit or legal proceeding, it is held that the Seller or the
Servicer, as the case may be, may not enforce any such Receivable on the ground
that it shall not be a real party in interest or a holder entitled to enforce
the Receivable, the Trustee shall, at the expense of the Seller or the Servicer,
as the case may be, take such steps as the Seller or the Servicer, as the case
may be, deems necessary to enforce the Receivable, including bringing suit in
the Trustee's name or the names of the Certificateholders.
SECTION 10.5. Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 10.2:
(i) The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate of
auditors or accountants or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, appraisal,
bond, note or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties.
(ii) The Trustee may consult with counsel and any
Opinion of Counsel or any advice of such 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 Opinion of Counsel or any advice of such counsel.
(iii) 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
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred therein or thereby.
(iv) 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, rights or powers conferred upon it
by this Agreement; provided, however, that the Trustee's conduct does
not constitute willful misfeasance, negligence or bad faith.
(v) Prior to the occurrence of an Event of Servicing
Termination and after the curing of all Events of Servicing Termination
that may have occurred, the Trustee shall not be bound to make any
investigation into the facts of any matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, direction, order, approval, bond, note or other paper or
document, unless requested in writing so to do by Holders of
Certificates evidencing not less than a
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majority of the aggregate outstanding principal balance of the Class A
Certificates and the Class B Certificates taken together as a single
class; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of an investigation requested by the
Certificateholders is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity
satisfactory to it against such cost, expense or liability as a
condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Servicer, or, if paid by the Trustee,
shall be reimbursed by the Servicer upon demand. Nothing in this clause
(v) shall affect the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Obligors; provided, further, that the Trustee shall be entitled to make
such further inquiry or investigation into such facts or matter as it
may reasonably see fit, and if the Trustee shall determine to make such
further inquiry or investigation it shall be entitled to examine the
books and records of the Servicer or the Seller, personally or by agent
or attorney, at the sole cost and expense of the Servicer or Seller, as
the case may be.
(vi) 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, attorneys, nominees or a custodian, and shall not
be liable for the acts of such agents, attorneys, nominees or custodians
provided that they have been appointed with due care.
(vii) The Trustee shall not be required to make any
initial or periodic examination of any documents or records related to
the Receivables or Financed Vehicles for the purpose of establishing the
presence or absence of defects, the compliance by the Seller with their
representations and warranties or for any other purpose.
SECTION 10.6. Trustee Not Liable for Certificates or Receivables. The
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Certificates (other than the Trustee's execution of, and the
certificate of authentication on, the Certificates). Except as expressly
provided herein, the Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates (other than the Trustee's
execution of, and the certificate of authentication on, the Certificates), or of
any Receivable or related document, or for the validity of the execution by the
Seller and the Servicer of this Agreement or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the Trust Property
hereunder, and the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Seller or the Servicer under this Agreement except as herein set forth;
but the Trustee may require the Seller or the Servicer to provide full
information and advice as to the performance of the aforesaid covenants,
conditions and agreements. The Trustee (solely in its capacity as such) shall
have no obligation to perform any of the duties of the Seller or the Servicer,
except as explicitly set forth in this Agreement. The Trustee shall have no
liability in connection with compliance of the Servicer or the Seller with
statutory or regulatory requirements related to the Receivables. The Trustee
shall not make or be deemed to have made any representations or warranties with
respect to the Receivables or the validity or sufficiency of any assignment of
the Receivables to
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the Trust or the Trustee. The Trustee (solely in its capacity as such) shall at
no time have any responsibility or liability for, or with respect to, the
legality, validity or enforceability of any security interest in any Financed
Vehicle or (prior to the time, if any, that the Servicer is terminated as
custodian hereunder) any Receivable, or the perfection and priority of such a
security interest or the maintenance of any such perfection and priority, the
efficacy of the Trust or its ability to generate funds sufficient to provide for
the payments to be distributed to Certificateholders under this Agreement, the
existence, condition, location and ownership of any Financed Vehicle, the
existence and contents of any Receivable or any computer or other record
thereof, the validity of the assignment of any Receivable to the Trust or of any
intervening assignment, the completeness of any Receivable, the performance or
enforcement of any Receivable, the compliance by the Seller with any warranty or
representation made under this 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, any investment of monies by the Servicer 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, any 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 that such instruction is not in express violation of the terms and
provisions of this Agreement); provided, however, that the foregoing shall not
relieve the Trustee of its obligation to perform its duties under this
Agreement. Except with respect to a claim based on the failure of the Trustee to
perform its duties under this Agreement (whether in its capacity as Trustee or
as successor Servicer) or based on the Trustee's willful misfeasance, negligence
or bad faith, or based on the Trustee's breach of a representation and warranty
contained in Section 10.14, no recourse shall be had to the Trustee (whether in
its individual capacity or as Trustee) 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. The Trustee shall not be accountable for
the use or application by the Seller of the proceeds of such Certificates, or
for the use or application of any funds paid to the Servicer in respect of the
Receivables prior to the time such amounts are deposited in the Collection
Account (whether or not the Collection Account is maintained with the Trustee).
The Trustee shall have no liability for any losses from the investment or
reinvestment in Eligible Investments made in accordance with Section 4.1.
SECTION 10.7. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not Trustee.
SECTION 10.8. Trustee's Fees and Expenses. The Servicer agrees to pay to
the Trustee, and the Trustee shall be entitled to, reasonable compensation as is
agreed upon in writing between the Trustee and the Servicer (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
powers and duties under this Agreement as Trustee, and the Servicer shall pay or
reimburse the Trustee upon its request for all reasonable expenses (including,
without limitation, expenses
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incurred in connection with notices or other communications to
Certificateholders), disbursements and advances (including the reasonable
compensation and the reasonable 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 of the provisions of this Agreement (including the
reasonable fees and expenses of its agents, any co-trustee and counsel) or in
defense of any action brought against it in connection with this Agreement
except any such expense, disbursement, or advance as may arise from its
negligence, willful misfeasance or bad faith. The Servicer's covenant to pay the
expenses, disbursements and advances provided for in the preceding sentence and
the Servicer's indemnity pursuant to Section 8.2 shall survive the termination
of this Agreement.
SECTION 10.9. Eligibility Requirements for Trustee. The Trustee shall be
organized and doing business under the banking laws of a state or of the United
States, shall be authorized under such laws to exercise corporate trust powers,
shall have a combined capital and surplus of at least $50,000,000, shall have a
credit rating of at least Baa3 from Xxxxx'x and shall be subject to supervision
or examination by Federal or State banking 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 10.9, the consolidated net worth of such corporation
shall be deemed to be its consolidated capital and surplus as set forth in its
most recent consolidated 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 10.9, the Trustee shall resign immediately in the manner and with the
effect specified in Section 10.10.
SECTION 10.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged
from the trusts hereby created by giving 30 days' prior written notice thereof
to the Servicer. Upon receiving such notice of resignation, the Servicer shall
promptly appoint a successor Trustee, by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If no successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be
eligible in accordance with the provisions of Section 10.9 and shall fail to
resign after written request therefor by the Servicer, or if at any time the
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver, conservator or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Servicer may remove the Trustee. If the
Trustee is removed under the authority of the immediately preceding sentence,
the Servicer shall promptly appoint a successor trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the Trustee so
removed, the
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successor Trustee, the Certificateholders at their respective addresses of
record and the Rating Agencies.
(c) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to any of the provisions of this
Section 10.10 shall not become effective until acceptance of appointment by the
successor Trustee pursuant to Section 10.11.
(d) The respective obligations of the Seller and the
Servicer described in this Agreement shall survive the removal or resignation of
the Trustee as provided in this Agreement.
SECTION 10.11. Successor Trustee. Any successor Trustee appointed
pursuant to Section 10.10 shall execute, acknowledge, and deliver to the
Servicer and to its 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 rights,
powers, duties and obligations of its predecessor under this Agreement, with
like effect as if originally named as Trustee. The predecessor Trustee shall
deliver to the successor Trustee all documents and statements held by it under
this Agreement, and the Servicer and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations.
(a) No successor Trustee shall accept appointment as
provided in this Section 10.11 unless at the time of such acceptance such
successor Trustee shall be eligible pursuant to Section 10.9.
(b) Upon acceptance of appointment by a successor
Trustee pursuant to this Section 10.11, the Servicer shall mail notice of such
acceptance by the successor Trustee under this Agreement to all
Certificateholders at their respective addresses of record and to the Rating
Agencies. If the Servicer shall fail to mail such notice within ten days after
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed at the expense of the Servicer.
SECTION 10.12. Merger or Consolidation of Trustee. Any corporation or
banking association which is eligible to be a successor Trustee under Section
10.9 (i) into which the Trustee may be merged or consolidated, (ii) that may
result from any merger, conversion or consolidation to which the Trustee shall
be a party, or (iii) that may succeed by purchase and assumption to the business
of the Trustee, where the Trustee is not the surviving entity, which corporation
or banking association executes an agreement of assumption to perform every
obligation of the Trustee under this Agreement, shall be the successor of the
Trustee hereunder, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall promptly notify the Servicer and the
Rating Agencies of any such merger, conversion, consolidation or purchase and
assumption where the Trustee is not the surviving entity.
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SECTION 10.13. Appointment of Co-Trustee or Separate Trustee. (a)
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 Property or any Financed Vehicle may at the time be located, the
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person,
in such capacity and for the benefit of the Certificateholders, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 10.13, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Servicing Termination 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 10.9 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.11.
Notwithstanding the appointment of a co-trustee or separate trustee hereunder,
the Trustee shall not be relieved of any of its obligations under this
Agreement.
(b) Each separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) 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 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 Property 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.
(ii) No trustee under this Agreement shall be liable by
reason of any act or omission of any other trustee under this Agreement.
(iii) The Servicer and the Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) 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
in particular to the provisions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or
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property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Each such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer.
(d) 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 trustee. The Trustee shall promptly notify the
Servicer and the Rating Agencies of any appointment made pursuant to this
Section 10.13.
SECTION 10.14. Representations and Warranties of Trustee. The Trustee
makes the following representations and warranties on which the Seller, the
Servicer and Certificateholders may rely:
(i) Organization and Good Standing. The Trustee is a
national banking association duly organized, validly existing, and in
good standing under the laws of the United States;
(ii) Power and Authority. The Trustee has full power,
authority and legal right to execute, deliver and perform this Agreement
and has taken all necessary action to authorize the execution, delivery
and performance by it of this Agreement; and
(iii) Enforceability. This Agreement has been duly
executed and delivered by the Trustee and this Agreement constitutes a
legal, valid and binding obligation of the Trustee enforceable against
the Trustee in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
SECTION 10.15. Reports by Trustee. The Trustee shall provide to any
Certificateholder or Certificate Owner who so requests in writing (addressed to
the Corporate Trust Office) a copy of any Servicer's Certificate, the annual
statement described in Section 3.10, and the annual accountant's examination
described in Section 3.11. The Trustee may require any Certificateholder or
Certificate Owner requesting such report to pay a reasonable sum to cover the
cost of the Trustee's complying with such request.
SECTION 10.16. Tax Accounting. The Servicer shall prepare any Federal
tax returns of the Trust in accordance with the Code and any regulations
(including, to the extent applicable by their terms, proposed regulations)
thereunder. In no event shall the Trustee in its individual capacity be liable
for any liabilities, costs or expenses of the Trust, the
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Certificateholders, the Seller or the Servicer arising under any tax law or
regulation, including, without limitation, Federal, State or local income or
excise taxes or any tax imposed on or measured by income (or any interest or
penalty with respect thereto or arising from any failure to comply therewith).
Notwithstanding the foregoing, in no event shall the Trustee be liable hereunder
for any liabilities, costs or expenses incurred from any information furnished
to it by the Servicer or failure to furnish information by the Servicer in a
timely manner.
SECTION 10.17. Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as Trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
ARTICLE XI.
Termination
SECTION 11.1. Termination of the Trust. (a) The Trust, and the
respective obligations and responsibilities of the Seller, the Servicer and the
Trustee hereunder shall terminate (except as otherwise expressly provided
herein) upon the earliest of: (i) the Distribution Date next succeeding the
purchase by the Seller at its option, pursuant to Section 11.2, of the
Receivables remaining in the Trust, (ii) the payment to Certificateholders of
all amounts required to be paid to them pursuant to this Agreement or (iii) the
Distribution Date next succeeding the month which is six months after the
maturity or the liquidation of the last Receivable held in the Trust and the
disposition of any amounts received upon liquidation of any property remaining
in the Trust; provided, however, in no event shall the Trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United
States to the Court of St. James's, living on the date of this Agreement. The
Servicer shall promptly notify the Trustee of any prospective termination
pursuant to this Section 11.1.
(b) Notice of any termination, specifying the
Distribution Date upon which the Certificateholders may surrender the
Certificates to the Trustee for payment of the final distribution and
cancellation, shall be given promptly by the Trustee by letter to
Certificateholders and the Rating Agencies mailed not earlier than the 15th day
and not later than the 25th day of the month next preceding the specified
Distribution Date stating the amount of any such final payment and that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office of the Trustee therein specified. Upon presentation and surrender of
the Certificates, the Trustee shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 4.5. Amounts remaining after distribution, or providing for
distribution, to the Certificateholders shall be distributed to the Seller.
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(c) In the event that all of the Certificateholders
shall not surrender their Certificates for cancellation within six months after
the date specified in the above-mentioned written notice, the Trustee shall give
a second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. The Trustee shall after giving such notice deliver or cause to be
delivered to the Servicer the Certificate Register. If within one year after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Servicer may take appropriate steps, or may appoint an agent
to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets that shall remain subject to this Agreement.
Any such funds held pending such distribution shall be held uninvested. Any
funds remaining in the Trust after exhaustion of such remedies shall be
distributed by the Trustee to the Seller.
SECTION 11.2. Optional Purchase of All Receivables. In the event that
the Pool Balance is 5% or less of the Original Pool Balance as of the first day
of any Collection Period, the Seller shall have the option to purchase the
corpus of the Trust on any Distribution Date occurring in a subsequent
Collection Period. To exercise such option, the Seller shall deposit pursuant to
Section 4.3 the sum of the Class A Principal Balance and the Class B Principal
Balance plus accrued and unpaid interest thereon into the Collection Account for
the Distribution Date occurring in the month in which such repurchase is to be
effected. The payment shall be made in the manner specified in Section 4.3, and
shall be distributed pursuant to Section 4.5. Upon such payment the Seller shall
succeed to and own all interests in and to the Trust and the Trust Property.
ARTICLE XII.
Miscellaneous Provisions
SECTION 12.1. Amendment. (a) This Agreement may be amended by the
Seller, the Servicer and the Trustee, without the consent of any of the
Certificateholders, to cure any ambiguity or defect, to correct or supplement
any provision in this Agreement or for the purpose of adding any provision to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of the Certificateholders; provided,
that such action shall not, as evidenced by an Opinion of Counsel delivered to
the Trustee, materially and adversely affect the interests of any
Certificateholder; provided further, that any amendment within the scope of
Section 12.1(b)(i) or (ii) shall be deemed to materially and adversely affect
the interests of the Certificateholders.
(b) This Agreement may also be amended from time to time
by the Seller, the Servicer and the Trustee, with the consent of the Holders of
Certificates evidencing not less than a majority of the aggregate outstanding
principal balance of the Class A Certificates and the Class B Certificates taken
together as a single class, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of the Certificateholders; provided,
however, that no such amendment shall (i) increase or reduce in any manner the
amount of, or accelerate or delay
-62-
the timing of, or change the allocation or priority of, collections of payments
on Receivables or distributions that are required to be made on any Certificate,
without the consent of all adversely affected Certificateholders or (ii) reduce
the percentage of the aggregate outstanding principal balance of the
Certificates, the holders of which are required to consent to any such
amendment, without the consent of all Certificateholders. Promptly after the
execution of any such amendment or consent, the Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder.
(c) It shall not be necessary for the consent of
Certificateholders pursuant to Section 12.1(b) 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
of evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe.
(d) Notice of any amendment of this Agreement shall be
sent by the Servicer to the Rating Agencies, at such address as the Rating
Agencies may from time to time specify in writing.
(e) The Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Trustee's own rights, duties or
immunities under this Agreement or otherwise.
(f) In connection with any amendment pursuant to this
Section 12.1 the Trustee shall be entitled to receive an Opinion of Counsel to
the effect that such amendment is authorized or permitted by the Agreement.
SECTION 12.2. Protection of Title to Trust. (a) The Servicer shall cause
to be executed and filed 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 under this Agreement in the Trust Property
and in the proceeds thereof. The Servicer shall deliver (or cause to be
delivered) to the Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing. In
the event that the Servicer fails to perform its obligations under this
subsection, the Trustee may (but shall not be obligated to) do so, at the
expense of the Servicer.
(b) Neither the Seller nor the Servicer shall change its
name, identity or corporate structure in any manner that would, could or might
make any financing statement or continuation statement filed by the Servicer in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustee at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Each of the Seller and the Servicer shall have an
obligation to give the Trustee at least 60 days' prior written notice of any
relocation of its principal executive office
-63-
if, as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment. The Servicer shall at all times maintain each office from
which it shall service Receivables, and its principal executive office, within
the United States of America.
(d) The Servicer shall maintain or cause to be
maintained accounts and records as to each Receivable accurately and in
sufficient detail to permit (i) the reader thereof to know at any time the
status of such Receivable, including payments and Recoveries made and payments
owing (and the nature of each) and (ii) reconciliation between payments or
Recoveries on (or with respect to) each Receivable and the amounts from time to
time deposited in the Collection Account in respect of such Receivable.
(e) The Servicer shall maintain and shall cause any
Subservicer to maintain its computer systems so that, from and after the time of
sale under this Agreement of the Receivables to the Trustee, the Servicer's and
any Subservicer's master computer records (including any backup archives) that
refer to a Receivable shall indicate clearly that such Receivable is owned by
the Trust. Indication of the Trust's ownership of a Receivable shall be deleted
from or modified on the Seller's, the Servicer's and any Subservicer's computer
systems when, and only when, the Receivable shall be paid or shall become a
Purchased Receivable.
(f) If at any time the Seller or the Servicer shall
propose to sell, grant a security interest in or otherwise transfer any interest
in automobile receivables to any prospective purchaser, lender or other
transferee, the Servicer, shall give to such prospective purchaser, lender or
other transferee computer tapes, records or printouts (including any restored
from backup archives) that, if they shall refer in any manner whatsoever to any
Receivable, shall indicate clearly that such Receivable has been sold and is
owned by the Trust.
(g) The Servicer shall permit the Trustee and its agents
at any time during normal business hours to inspect, audit and make copies of
and abstracts from the Servicer's records regarding any Receivable.
(h) Upon request at any time the Trustee shall have
reasonable grounds to believe that such request is necessary in connection with
the performance of its duties under this Agreement, the Servicer shall furnish
to the Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then held as part of the Trust, together
with a reconciliation of such list to the Schedule of Receivables and to each of
the Servicer's Certificates furnished before such request indicating removal of
Receivables from the Trust.
(i) The Servicer shall deliver to the Trustee promptly
after the execution and delivery of this Agreement and of each amendment
thereto, an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given, or (B)
stating that, in the opinion of such counsel, no such action shall be necessary
to preserve and protect such interest.
-64-
(j) The Seller shall, to the extent required by
applicable law, cause the Certificates to be registered with the Commission
pursuant to Section 12(b) or Section 12(g) of the Exchange Act within the time
periods specified in such sections.
SECTION 12.3. Limitation on Rights of Certificateholders. (a) The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, or entitle the 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, or otherwise affect the
rights, obligations and liabilities of the parties to this Agreement or any of
them.
(b) No Certificateholder shall have any right to vote
(except as expressly provided herein) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties to this
Agreement, nor shall anything set forth in this Agreement, or contained in the
terms of the Certificates, be construed so as to constitute the Holders as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken pursuant to any
provision of this Agreement.
(c) 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, as hereinbefore
provided, and unless the Holders of the Certificates evidencing not less than a
majority of the aggregate outstanding principal balance of the Class A
Certificates and the Class B Certificates taken together as a single class shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee under the 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; no one or more Holders of Certificates 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 Class A Certificateholders or Class B
Certificateholders, as the case may be. For the protection and enforcement of
the provisions of this Section 12.3, each Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
SECTION 12.4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
-65-
SECTION 12.5. Notices. All demands, notices and communications upon or
to the Seller, the Servicer, the Trustee or the Rating Agencies under this
Agreement shall be in writing, personally delivered, sent by overnight courier
or mailed by certified mail, return receipt requested, (or in the form of telex
or facsimile notice, followed by written notice delivered as aforesaid) and
shall be deemed to have been duly given upon receipt (a) in the case of the
Seller or Servicer, to Bank One, Texas, N.A., 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx
00000, Attention: Chief Financial Officer, facsimile 000-000-0000 (b) in the
case of the Trustee, at the Corporate Trust Office, facsimile 000-000-0000 (c)
in the case of Moody's, to Xxxxx'x Investors Service, Inc., to 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Securities Group, facsimile
000-000-0000 and (d) in the case of Standard & Poor's, to Standard & Poor's
Corporation, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention of
Asset Backed Surveillance Department, facsimile 000-000-0000; or, as to each of
the foregoing, at such other address as shall be designated by written notice to
the other parties.
SECTION 12.6. Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, 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 12.7. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 7.4, 8.3 and 8.5, this
Agreement may not be assigned by the Seller or the Servicer. This Agreement may
not be assigned by the Trustee except as provided by Sections 10.10 through
10.13 hereof.
SECTION 12.8. Certificates Nonassessable and Fully Paid. The interests
represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and, upon authentication
thereof by the Trustee pursuant to Section 6.1, each Certificate shall be deemed
fully paid.
SECTION 12.9. Intention of Parties. (a) The execution and delivery of
this Agreement shall constitute an acknowledgment by the Seller and the Trustee,
on behalf of the Certificateholders, that it is intended that the assignment and
transfer herein contemplated constitute a sale and assignment outright, and not
for security, of the Receivables and the other Trust Property, conveying good
title thereto free and clear of any liens, from the Seller to the Trustee, and
that the Receivables and the other Trust Property shall not be a part of the
estate of the Seller in the event of the insolvency, receivership,
conservatorship or the occurrence of another similar event, of, or with respect
to, the Seller. In the event that such conveyance is determined to be made as
security for a loan made by the Trustee or the Certificateholders to the Seller,
the parties intend that the Seller shall have granted to the Trustee a security
interest in all of the Seller's right, title and interest in and to the Trust
Property conveyed to the Trustee pursuant to Section 2.1 in order to secure the
obligations under the Certificates, and that this Agreement shall constitute a
security agreement under applicable law.
-66-
(b) The execution and delivery of this Agreement shall
constitute an acknowledgment by the Seller and the Trustee on behalf of the
Certificateholders that they intend that the Trust be classified (for Federal
tax purposes) as a grantor trust under Subpart E, Part I of Subchapter J of the
Code of which the Certificateholders are owners, rather than as an association
taxable as a corporation. The powers granted and obligations undertaken in this
Agreement shall be construed so as to further such intent.
SECTION 12.10. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 12.11. Collateral Agent Protection. Notwithstanding anything
contained herein to the contrary, the Collateral Agent shall have the same
rights and protection afforded to the Trustee hereunder.
SECTION 12.12. Limitation of Liability of Trustee and Collateral Agent.
Notwithstanding anything contained herein to the contrary (i) this Agreement has
been accepted by Bankers Trust Company not in its individual capacity but solely
as Trustee and as Collateral Agent with respect to the Reserve Fund and in no
event shall Bankers Trust Company have any liability for the representations,
warranties, covenants, agreements or other obligations of the Seller hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Seller and
(ii) under no circumstances shall Bankers Trust Company be liable for the
payment of any indebtedness or expenses of the Trust; provided, however, nothing
contained herein shall relieve Bankers Trust Company of its obligations
contained herein in its capacity as successor Servicer, as Trustee and as
Collateral Agent.
-67-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BANK ONE, TEXAS, N.A.
as Seller and Servicer
By:____________________________
Name:
Title:
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:_______________________________
Name:
Title:
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Collateral Agent
By:_______________________________
Name:
Title:
-68-
SCHEDULE A
Schedule of Receivables
(delivered to the Trustee at Closing)
SCHEDULE B
Location of Receivables
EXHIBIT A
FORM OF CLASS A CERTIFICATE
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT
BALANCE ON THE FACE HEREOF.
NUMBER A- $________________________
(of CUSIP NO. ________________ $________________ issued)
BANC ONE AUTO GRANTOR TRUST 1997-A
CLASS A _____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of motor vehicle retail installment sale
contracts secured by new or used automobiles, vans or light duty trucks.
(This Certificate does not represent an interest in or obligation of Bank One,
Texas, N.A., the Trustee or any of their respective affiliates, except to the
extent described below.)
THIS CERTIFIES THAT _________________ is the registered owner of a
$____________________ nonassessable, fully-paid, fractional undivided interest
in Banc One Auto Grantor Trust 1997-A (the "Trust") formed pursuant to the
Pooling and Servicing Agreement (the "Agreement") dated as of May 31, 1997 among
Bank One, Texas, N.A., as seller (the "Seller") and servicer (the "Servicer")
and Bankers Trust Company, a New York banking corporation, as Trustee and
Collateral Agent, a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement.
A-1
This Certificate is one of the duly authorized Certificates, designated
as the Class A ____% Asset Backed Certificates (herein called the "Class A
Certificates"), issued under the Agreement. Also issued under the Agreement are
Certificates designated as the Class B ____% Asset Backed Certificates (the
"Class B Certificates"). The Class A Certificates and the Class B Certificates
are hereinafter collectively called the "Certificates." The aggregate beneficial
ownership interests in the Trust evidenced by all Class A Certificates is ____%.
This Class A Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement to which Agreement reference is hereby made for
a statement of the respective rights and obligations thereunder of the Seller,
the Servicer, the Trustee and Holders of the Class A Certificates.
The property of the Trust includes a pool of simple interest motor
vehicle retail installment sale contracts for new or used automobiles, vans or
light duty trucks (collectively, the "Receivables"), all monies received under
the Receivables on or after the related Cutoff Date, security interests in the
vehicles financed thereby, certain bank accounts, the rights to proceeds from
certain insurance proceeds, the rights of the Trust under the Agreement, the
right to receive certain payments from funds deposited in the Reserve Fund and
all proceeds of the foregoing.
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 (each, a
"Distribution Date"), commencing on July 21, 1997, to the Person in whose name
this Certificate is registered at the close of business on the last day of the
calendar month preceding such Distribution Date (the "Record Date"), such
Certificateholder's fractional undivided interest in the amount to be
distributed to Certificateholders on such Distribution Date.
It is the intent of the Seller, the Trustee and the Certificateholders
that the Trust be classified (for Federal tax purposes) as a grantor trust under
Subpart E, Part I of Subchapter J of the Code of which the Class A
Certificateholders are owners, rather than as an association taxable as a
corporation. The Seller, the Servicer, the Trustee and the Certificateholders,
by acceptance of a Class A Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Certificates for such tax purposes as
interests in a grantor trust.
Distributions on this Certificate will be made as provided in the
Agreement by the Trustee by check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon, except that with respect to
Certificates registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Trustee in the Borough of Manhattan, the City
of New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-2
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Trustee, by manual signature, this Certificate
shall not entitle the Holder hereof to any benefit under the Agreement or be
valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly executed.
Date:
Bankers Trust Company,
not in its individual capacity
but solely as Trustee
By: ______________________________
Authorized Signatory
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the within-mentioned
Agreement.
Date:
Bankers Trust Company,
not in its individual capacity
but solely as Trustee
By: ______________________________
Authorized Signatory
A-4
(REVERSE OF CLASS A CERTIFICATE)
The Class A Certificates do not represent an obligation of, or an
interest in, any of the Seller, the Servicer, the Trustee or any affiliates of
any of them, and no recourse may be had against such parties or their assets
except as expressly set forth or contemplated herein or in the Agreement. In
addition, this Certificate is limited in right of payment to certain collections
and recoveries with respect to the Receivables (and certain other amounts), all
as more specifically set forth herein and in the Agreement. A copy of the
Agreement may be examined by any Certificateholder upon written request during
normal business hours at the principal office of the Seller and at such other
places, if any, designated by the Seller.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller, the Servicer and the Trustee and the rights of the Certificateholders at
any time by the Seller, the Servicer and the Trustee with the consent of the
Holders of Certificates evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates and the Class B
Certificates taken together as a single class. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in the Borough of Manhattan, The
City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and 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.
Except as provided in the Agreement, the Class A Certificates are
issuable only as registered certificates without coupons in minimum
denominations of $1,000 and integral multiples thereof; provided, however, that
one Class A Certificate may be issued in a denomination that represents any
remaining portion of the Original Class A Principal Balance. 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 charge payable in connection
therewith.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Trustee or any such agent shall be affected by any notice to the
contrary.
A-5
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held by the Trust. The Seller 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 Certificates; however, such right of
purchase is exercisable only on a Distribution Date during a Collection Period
subsequent to a Collection Period in which the Pool Balance is 5% or less of the
Original Pool Balance as of the first day of such Collection Period.
A-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 type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class A Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ____________________________ to transfer said Class
A Certificate on the books of the Trustee, with full power of substitution in
the premises.
Dated:
___________________________________________*/
Medallion:
____________________________*/
-----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner 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 an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-7
EXHIBIT B
FORM OF CLASS B CERTIFICATE
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE MAY NOT BE DIRECTLY OR INDIRECTLY SOLD OR TRANSFERRED
TO, OR PURCHASED OR ACQUIRED BY, OR ON BEHALF OF (1) ANY EMPLOYEE BENEFIT PLAN,
RETIREMENT ARRANGEMENT, INDIVIDUAL RETIREMENT ACCOUNT OR XXXXX PLAN WHICH IS
SUBJECT TO EITHER TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (EACH, A "PLAN"), OR (2) ANY ENTITY WHOSE SOURCE OF FUNDS TO BE USED FOR
THE PURCHASE OF THIS CLASS B CERTIFICATE INCLUDES THE ASSETS OF ANY SUCH PLAN,
OTHER THAN AN "INSURANCE COMPANY GENERAL ACCOUNT" AS DEFINED IN, AND WHICH
COMPLIES WITH THE PROVISIONS OF, PROHIBITED TRANSACTION EXEMPTION 95-60.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS CERTIFICATE
WILL BE MADE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT
BALANCE ON THE FACE HEREOF.
NUMBER B- $_________________ (of
CUSIP NO. ____________ $______________ issued)
BANC ONE AUTO GRANTOR TRUST 1997-A
CLASS B _____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of motor vehicle retail installment sale
contracts secured by new or used automobiles, vans or light duty trucks.
B-1
(This Certificate does not represent an interest in or obligation of Bank One,
Texas, N.A., the Trustee or any of their respective affiliates, except to the
extent described below.)
THIS CERTIFIES THAT _________________ is the registered owner of a
$____________________ nonassessable, fully-paid, fractional undivided interest
in Banc One Auto Grantor Trust 1997-A (the "Trust") formed pursuant to the
Pooling and Servicing Agreement (the "Agreement") dated as of May 31, 1997 among
Bank One, Texas, N.A., as seller (the "Seller") and servicer (the "Servicer")
and Bankers Trust Company, a New York banking corporation, as Trustee and
Collateral Agent, a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement.
This Certificate is one of the duly authorized Certificates, designated
as the Class B ____% Asset Backed Certificates (herein called the "Class B
Certificates"), issued under the Agreement. Also issued under the Agreement are
Certificates designated as the Class A ____% Asset Backed Certificates (the
"Class A Certificates"). The Class A Certificates and the Class B Certificates
are hereinafter collectively called the "Certificates." The aggregate beneficial
ownership interests in the Trust evidenced by all Class B Certificates is ____%.
This Class B Certificate is issued under and is subject to the terms, provisions
and conditions of the Agreement to which Agreement reference is hereby made for
a statement of the respective rights and obligations thereunder of the Seller,
the Servicer, the Trustee and Holders of the Class B Certificates.
The property of the Trust includes a pool of simple interest motor
vehicle retail installment sale contracts for new or used automobiles, vans or
light duty trucks (collectively, the "Receivables"), all monies received under
the Receivables on or after the Cutoff Date, security interests in the vehicles
financed thereby, certain bank accounts, the rights to proceeds from certain
insurance proceeds, the rights of the Trust under the Agreement, the right to
receive certain payments from funds deposited in the Reserve Fund and all
proceeds of the foregoing.
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 (each, a
"Distribution Date"), commencing on July 21, 1997, to the Person in whose name
this Certificate is registered at the close of business on the last day of the
calendar month preceding such Distribution Date (the "Record Date"), such
Certificateholder's fractional undivided interest in the amount to be
distributed to Certificateholders on such Distribution Date.
It is the intent of the Seller, the Trustee and the Certificateholders
that the Trust be classified (for Federal tax purposes) as a grantor trust under
Subpart E, Part I of Subchapter J of the Code of which the Class B
Certificateholders are owners, rather than as an association taxable as a
corporation. The Seller, the Servicer, the Trustee and the Certificateholders,
by acceptance of a Class B Certificate, agree to treat, and to take no action
inconsistent with the treatment of, the Certificates for such tax purposes as
interests in a grantor trust.
Distributions on this Certificate will be made as provided in the
Agreement by the Trustee by check mailed to the Certificateholder of record in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon, except that with
B-2
respect to Certificates registered on the Record Date in the name of the nominee
of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will
be made by wire transfer in immediately available funds to the account
designated by such nominee. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Trustee in the Borough of Manhattan, the City
of New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Trustee, by manual signature, this Certificate
shall not entitle the Holder hereof to any benefit under the Agreement or be
valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
B-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly executed.
Date:
Bankers Trust Company,
not in its individual capacity
but solely as Trustee
By: ______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
Date:
Bankers Trust Company,
not in its individual capacity
but solely as Trustee
By: ______________________________
Authorized Signatory
B-4
(REVERSE OF CLASS B CERTIFICATE)
The Class B Certificates do not represent an obligation of, or an
interest in, any of the Seller, the Servicer, the Trustee or any affiliates of
any of them, and no recourse may be had against such parties or their assets
except as expressly set forth or contemplated herein or in the Agreement. In
addition, this Certificate is limited in right of payment to certain collections
and recoveries with respect to the Receivables (and certain other amounts), all
as more specifically set forth herein and in the Agreement. A copy of the
Agreement may be examined by any Certificateholder upon written request during
normal business hours at the principal office of the Seller and at such other
places, if any, designated by the Seller.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller, the Servicer and the Trustee and the rights of the Certificateholders at
any time by the Seller, the Servicer and the Trustee with the consent of the
Holders of Certificates evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates and the Class B
Certificates taken together as a single class. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and on all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in the Borough of Manhattan, The
City of New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and 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.
Except as provided in the Agreement, the Class B Certificates are
issuable only as registered certificates without coupons in minimum
denominations of $1,000 and integral multiples thereof; provided, however, that
one Class B Certificate may be issued in a denomination that represents any
remaining portion of the Original Class B Principal Balance. 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 charge payable in connection
therewith.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
none of the Trustee or any such agent shall be affected by any notice to the
contrary.
B-5
The obligations and responsibilities created by the Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Agreement and the
disposition of all property held by the Trust. The Seller 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 Certificates; however, such right of
purchase is exercisable only on a Distribution Date during a Collection Period
subsequent to a Collection Period in which the Pool Balance is 5% or less of the
Original Pool Balance as of the first day of such Collection Period.
[By accepting and holding this Class B Certificate, the Holder hereof
shall be deemed to have represented and warranted that it is it is not acquiring
Class B Certificates, directly or indirectly, for or on behalf of an ERISA
Entity other than an "insurance company general account" as defined in, and
which complies with the provisions of, Prohibited Transaction Exemption 95-60.]
[The transferee hereof of this Class B Definitive Certificate will
represent that it is not either (1) an employee benefit plan, retirement
arrangement, individual retirement account or xxxxx plan which is subject to
either Title I of ERISA, or Section 4975 of the Code, or (2) any entity whose
source of funds to be used for the purchase of the Class B Certificate includes
the assets of any such Plan, other than an "Insurance Company General Account"
as defined in, and which complies with the provisions of, Prohibited Transaction
Exemption 95-60 issued by the United States Department of Labor.]
B-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 type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Class B Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ____________________________ to transfer said Class
B Certificate on the books of the Trustee, with full power of substitution in
the premises.
Dated:
___________________________________________*/
Medallion:
____________________________*/
-----------------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner 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 an "eligible guarantor institution" meeting
the requirements of the Trustee, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
B-7
EXHIBIT E
FORM OF BENEFIT PLAN AFFIDAVIT
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Bank One, Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
STATE OF ___________)
ss:
COUNTY OF __________)
Under penalties of perjury, I, the undersigned, declare that, to
the best of my knowledge and belief, the following representations are true,
correct, and complete.
1. That I am a duly authorized officer of _____________ (the
"Purchaser"), whose taxpayer identification number is _________, and on behalf
of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Class B Certificate (the
"Certificate") representing an interest in the Trust.
3. That the Purchaser is not either (1) an employee benefit plan,
retirement arrangement, individual retirement account or xxxxx plan which is
subject to either Title I of ERISA, or Section 4975 of the Code, or (2) any
entity whose source of funds to be used for the purchase of the Class B
Certificate includes the assets of any such Plan, other than an "Insurance
Company General Account" as defined in, and which complies with the provisions
of, Prohibited Transaction Exemption 95-60 issued by the United States
Department of Labor.
Capitalized terms used in and not otherwise defined herein shall
have the meaning assigned to them in the Pooling and Servicing Agreement dated
as of May 31, 1997 among Bank One, Texas, N.A., as seller and servicer and
Bankers Trust Company, as trustee.
E-1
IN WITNESS WHEREOF, the Purchaser has caused this instrument to
be duly executed on its behalf, by its duly authorized officer this ____ day of
___________, 19__.
-----------------------------------
By:________________________________
Its:_______________________________
Personally appeared before me ____________, known or proved to me
to be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that he or she
executed the same as his or her free act and deed and as the free act and deed
of the Purchaser.
Subscribed and sworn before me
this ____ day of ____________, 19__
-----------------------------------
Notary Public
My commission expires the ____ day of ___________________, 19__.
