EXHIBIT 4.3
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POOLING AND SERVICING AGREEMENT
among
ADVANTA AUTO FINANCE CORPORATION
as Sponsor and Servicer
___________________________________,
as [Master Administrator]
___________________________________,
as [Master Servicer]
___________________________________,
as Originator and Servicer
and
___________________________________,
as Trustee
Dated as of _____________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms............................ 2
SECTION 1.02. Provisions of General Application................ 18
SECTION 1.03. Calculation of Quarterly Interest................ 19
ARTICLE II
TRANSFER OF TRUST ASSETS
SECTION 2.01. Conveyance of Transferred Assets................. 19
SECTION 2.02. Acceptance by Trustee and Appointment of
the [Master Servicer] as Custodian............... 19
SECTION 2.03. Additional Purchases............................. 20
SECTION 2.04. Conditions Precedent to All Purchases............ 21
SECTION 2.05. Grant of Security Interest; Tax
Treatment........................................ 22
SECTION 2.06. Further Action Evidencing Assignments............ 23
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the
Sponsor.......................................... 24
SECTION 3.02. Representations and Warranties as to
Each Auto Loan and the other Transferred
Assets........................................... 26
SECTION 3.03. Repurchases and Purchases........................ 28
ARTICLE IV
SERVICING OF TRUST ASSETS
SECTION 4.01. [Appointment of [Master Servicer]................ 29
SECTION 4.02. Subservicing Agreements Between Servicer
and Subservicer.................................. 31
SECTION 4.03. Representations and Warranties of the
Servicer and the [Master Servicer]............... 32
SECTION 4.04. Duties and Responsibilities of the
Servicer......................................... 33
SECTION 4.05. Fidelity Bond, Errors and Omissions
Insurance........................................ 36
SECTION 4.06. Inspection....................................... 37
SECTION 4.07. Trustee to Cooperate............................. 37
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SECTION 4.08. Servicing Fee; Servicing Expenses................ 38
SECTION 4.09. [Master Servicer] To Maintain Computer
Link............................................. 38
SECTION 4.10. [Master Servicer] and Servicer Not to
Resign........................................... 39
SECTION 4.11. Change in Business of the [Master
Servicer] or the Servicer........................ 39
SECTION 4.12. Events of Master Servicing Termination........... 40
SECTION 4.13. Appointment of the Successor Master
Servicer......................................... 41
SECTION 4.14. Events of Servicing Termination.................. 42
SECTION 4.15. Appointment of the Successor Servicer............ 44
SECTION 4.16. Effect of Service Transfer....................... 45
SECTION 4.17. Annual Reports; Statements as to
Compliance....................................... 46
SECTION 4.18. Annual Independent Public Accountants'
Servicing Report................................. 47
SECTION 4.19. Servicer Reports................................. 47
[ARTICLE V]
[THE [Master Administrator]]
SECTION 5.01. Appointment of [Master Administrator]............ 49
SECTION 5.02. Subcontracting Agreements Between Master
Administrator and Subcontractor.................. 49
SECTION 5.03. Duties and Responsibilities of the
Master Administrator............................. 50
SECTION 5.04. Representations and Warranties of the
[Master Administrator]........................... 51
SECTION 5.05. Monthly Administrator Fee; Administrator
Expenses......................................... 52
SECTION 5.06. [Master Administrator] Not to Resign............. 52
SECTION 5.07. Events of Administrator Termination.............. 52
SECTION 5.08. Appointment of the Successor Master
Administrator.................................... 54
SECTION 5.09. Annual Reports; Annual Statement as to
Compliance....................................... 55
SECTION 5.10. Other Data....................................... 56
SECTION 5.11. Reports of the [Master Administrator]............ 56
ARTICLE VI
THE CERTIFICATES
SECTION 6.01. The Certificates................................. 58
SECTION 6.02. Authentication of Certificates................... 60
SECTION 6.03. Registration of Transfer and Exchange of
Certificates..................................... 61
SECTION 6.04 Appointment of Paying Agent...................... 62
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SECTION 6.05. Mutilated, Destroyed, Lost or Stolen
Certificates..................................... 63
SECTION 6.06. Persons Deemed Owners............................ 63
SECTION 6.07. Access to List of Certificateholders'
Names and Addresses.............................. 64
SECTION 6.08. Acts of Certificateholders....................... 64
SECTION 6.09 Notices to Depository............................ 65
ARTICLE VII
DEPOSITS AND DISTRIBUTIONS
SECTION 7.01. Rights of Certificateholders..................... 65
SECTION 7.02. Establishment and Administration of the
Collection Account............................... 66
SECTION 7.03. Establishment and Administration of the
Cash Reserve Account............................. 67
SECTION 7.04. Distributions.................................... 68
SECTION 7.05. Reports to Certificateholders.................... 71
ARTICLE VIII
REMEDIES
SECTION 8.01. Events of Default................................ 71
SECTION 8.02. Declaration of Principal Amortization
Event............................................ 73
SECTION 8.03. Collection of Indebtedness and Suits for
Enforcement by Trustee........................... 73
SECTION 8.04. Trustee May File Proofs of Claim................. 73
SECTION 8.05. Trustee May Enforce Claims Without
Possession of Investor Certificates.............. 74
SECTION 8.06. Application of Money Collected................... 75
SECTION 8.07. Limitation on Suits.............................. 75
SECTION 8.08. Restoration of Rights and Remedies............... 75
SECTION 8.09. Rights and Remedies Cumulative................... 76
SECTION 8.10. Delay or Omission Not Waiver..................... 76
SECTION 8.11. Control by Certificateholders.................... 76
SECTION 8.12. Waiver of Past Defaults.......................... 76
SECTION 8.13. Undertaking for Costs............................ 77
SECTION 8.14. Waiver of Stay or Extension Laws................. 77
ARTICLE IX
LIMITATION ON LIABILITY; INDEMNITIES
SECTION 9.01. Liabilities of Obligors and Insurers.............. 77
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SECTION 9.02. Limitation on Liability of the Sponsor,
the [Master Servicer], Servicer and the
[Master Administrator]........................... 78
SECTION 9.03. Indemnities of the [Master Servicer],
the Servicer and the [Master
Administrator]................................... 78
ARTICLE X
THE TRUSTEE
SECTION 10.01. Certain Duties................................... 79
SECTION 10.02. Notice of Defaults............................... 81
SECTION 10.03. Certain Matters Affecting the Trustee............ 81
SECTION 10.04. Trustee Not Liable for Certificates or
Auto Loans....................................... 83
SECTION 10.05. Trustee May Own Certificates..................... 84
SECTION 10.06. The [Master Administrator] to Pay
Trustee's Fees and Expenses...................... 84
SECTION 10.07. Eligibility Requirements for Trustee............. 84
SECTION 10.08. Resignation or Removal of Trustee................ 84
SECTION 10.09. Successor Trustee................................ 85
SECTION 10.10. Merger or Consolidation of Trustee............... 86
SECTION 10.11. Tax Matters...................................... 86
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Termination of Agreement; Optional
Repurchase....................................... 86
SECTION 11.02. Beneficiaries.................................... 88
SECTION 11.03. Amendment........................................ 88
SECTION 11.04. Notices.......................................... 89
SECTION 11.05. Notices and Reports to be Delivered to
the Rating Agency................................ 91
SECTION 11.06. Merger and Integration........................... 91
SECTION 11.07. Headings......................................... 91
SECTION 11.08. Certificates Nonassessable and Fully
Paid............................................. 92
SECTION 11.09. Severability of Provisions....................... 92
SECTION 11.10. No Proceedings................................... 92
SECTION 11.11. GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL............................. 92
SECTION 11.12. Counterparts..................................... 93
EXHIBITS
Exhibit A Form of Purchase Agreement
Exhibit B Auto Loan Protection Policy
Exhibit C Blanket Collateral Protection Policy
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Exhibit D Form of Assignment
Exhibit E Form of Release and Assignment
Exhibit F Form of Servicer Report
Exhibit G Form of Master Administrator Report
Exhibit H Form of Investor Certificate
Exhibit I Form of Seller Certificate
Exhibit J Form of Depository Agreement
Exhibit K Form of Issuance Supplement
SCHEDULES
Schedule 1 List of Auto Loans
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POOLING AND SERVICING AGREEMENT, dated as of ___________, 199_, among
ADVANTA AUTO FINANCE CORPORATION, a Nevada corporation, its successors and
permitted assigns, as Sponsor and as Servicer (the "Sponsor" and the "Servicer"
respectively), __________________________________, a __________ corporation, its
successors and permitted assigns as [Master Administrator] (the "[Master
Administrator]"), a _________ corporation, its successors and permitted assigns,
as [Master Servicer] (the "[Master Servicer]"), _______________, a ____________
corporation, its successors and permitted assigns, as Originator (the
"Originator") and _________________________, a _______________ corporation, its
successors and permitted assigns, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Sponsor is a bankruptcy-remote corporation formed for the
purpose of acting as the issuer of certain certificates representing undivided
beneficial interests in trusts, including the trust to be established pursuant
to this Agreement of consumer automobile loans and certain other rights and
properties pertaining to the Advanta Auto Receivables Trust 199_-_] (the
"Trust");
WHEREAS, the Sponsor will acquire from time to time consumer automobile
loans financing the purchase of automobiles and light trucks, which loans create
a lien or security interest in the automobile financed thereunder in favor of
the loan holder (the "Auto Loans");
WHEREAS, the Sponsor intends that the Trust will purchase the Auto Loans
from the Sponsor simultaneously with the acquisition of such Auto Loans by the
Sponsor;
[WHEREAS, the [Master Administrator] has been requested and is willing to
direct the Trustee to make certain distributions of funds in connection with
amounts received as proceeds from the Auto Loans, investment income, and payment
of principal of and interest on, the Certificates and to otherwise perform
certain administrative functions in connection with the transactions
contemplated hereby;]
WHEREAS, in order to effectuate the purposes of this Agreement, the
Sponsor, the [Master Administrator] and the Trustee desire that [a master
servicer and] a servicer be appointed to perform certain servicing and
collection functions in respect of the Auto Loans to be acquired by the Trust
for the benefit of the Certificateholders as their interests appear herein; and
WHEREAS, Advanta Auto Finance Corporation and ___ have been requested and
[each] is willing to act as [the [Master Servicer] and] the Servicer[,
respectively,] hereunder.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
"Actuarial Loan" means any Auto Loan in which the method of allocating
payments of principal and interest is the Actuarial Method.
"Actuarial Method" means the method of allocating a fixed level monthly
payment on an Auto Loan between principal and interest, pursuant to which the
portion of such payment that is allocated to interest is the product of
one-twelfth of the APR multiplied by the Principal Balance.
"Administrator Transfer" has the meaning specified in Section 5.07.
"Adverse Claim" means any claim of ownership or any lien, security
interest, title retention, trust or other charge or encumbrance, or other type
of preferential arrangement having the effect or purpose of creating a lien or
security interest, other than the security interest created under this
Agreement.
"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 the 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.
"Aggregate Excess Interest" means, with respect to any Distribution Date,
an amount not less than zero, equal to the total of (a) the aggregate amount of
interest collected on all of the Auto Loans during the immediately preceding Due
Period minus (b) the amount of interest on the Investor Certificates calculated
pursuant to Section 7.04(c)(i)(A) in respect of such Distribution Date minus (c)
the amount of interest on the Originator Certificate calculated pursuant to
Section 7.04(c)(iii) in respect of such Distribution Date minus (d) the Trust
Operating Expenses with respect to the immediately preceding Due Period.
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"Agreement" means this Pooling and Servicing Agreement, as amended or
supplemented from time to time including all exhibits and schedules hereto and
thereto.
"Applicants" has the meaning specified in Section 6.07.
"APR" means the annual percentage rate of an Auto Loan as determined
according to the related contractual documents with the Obligor thereof.
"Assignment" means collectively, with respect to any Auto Loan, the related
Sale Assignment and Purchase Assignment.
"Authorized Officer" means, with respect to any corporation or partnership,
the Chairman of the Board, the President, any Vice President, the Secretary, the
Treasurer, any Assistant Secretary, any Assistant Treasurer and each other
officer of such corporation or the general partner of such partnership
specifically authorized in resolutions of the Board of Directors of such
corporation to sign agreements, instruments or other documents in connection
with this Agreement on behalf of such corporation or partnership, as the case
may be.
"Auto Loan" means a consumer loan arising from the sale of an Automobile
and conveyed to the Trust by the Sponsor as part of the Trust Assets, and
includes, without limitation, (a) the related Assignment, (b) all security
interests or liens and property subject thereto from time to time purporting to
secure payment by the Obligor thereunder, (c) all guarantees, indemnities and
warranties, insurance policies (but not including the Insurance Policies),
certificates of title or other title documentation and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Auto Loan, (d) all collections and records with respect to the
foregoing, and (e) all proceeds of any of the foregoing.
"Auto Loan Protection Policy" means one of the Insurance Policies a copy of
which is attached hereto as Exhibit B insuring against loss in the amount of the
difference between (a) the unpaid balance of an Auto Loan and accrued or earned
interest thereon (after certain refundable items, repossession expenses and
applicable deductible have been subtracted) and (b) the liquidated value of the
repossessed Automobile.
"Automobiles" means new and used automobiles and light trucks, the purchase
of which the Obligors financed by the Auto Loans.
"Available Cash Reserve Amount" means, on any date of determination, the
amount on deposit in the Cash Reserve Account.
"Available Distribution Amount" means, on any Distribution Date, the amount
of Available Funds remaining after
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the payment of the Trust Operating Expenses with respect to the immediately
preceding Due Period.
"Available Funds" means for any Monthly Fee Date or Distribution Date, (a)
all amounts representing Payments collected during the immediately preceding
month or Due Period, as the case may be, (b) all Recoveries on Defaulted Auto
Loans received during such month or Due Period, and (c) all amounts retained in
the Collection Account pursuant to Section 7.04(c)(vi) and 7.04(d)(vii) (net of
investment earnings on such amounts).
"Available Purchase Amount" means, on any date of determination, an amount
equal to the sum of (a) $__________ minus (b) the then aggregate Principal
Balance of Auto Loans previously purchased by the Trust.
"Available Subordination Amount" means for any Distribution Date, the sum
of (a) the then applicable Maximum Subordination Amount minus (b) the Cumulative
Subordination Payments.
"Blanket Collateral Protection Policy" means one of the Insurance Policies,
a copy of which is attached hereto as Exhibit C, insuring against loss or
damages to an Automobile.
"Book-Entry Certificates" has the meaning specified in Section 6.01(b).
"Business Day" means any day other than a Saturday or a Sunday, or another
day on which banks in the State of New York generally, or the City of New York,
the State of _______ generally, (or such other cities and states in which the
Corporate Trust Office, the principal administrative offices of the [Master
Administrator], Certificate Registrar and Transfer Agent, and Paying Agent or
the principal offices of the [Master Servicer] or the Servicer are subsequently
located, as specified in writing by such party to the other parties hereto) are
required, or authorized by law, to close.
"Cash Reserve Account" means the account described in Section 7.03(a).
"Certificate Rate" means the rate per annum specified in the Issuance
Supplement as the rate per annum at which interest accrues in respect of the
Investor Certificates and the Originator Certificate.
"Certificates" means on any date the Originator Certificate and the
Investor Certificates issued and outstanding on such date.
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"Certificateholder" means the registered holder of an Investor Certificate
or the Originator Certificate, as the case may be.
"Certificateholders' Interest" has the meaning specified in Section
7.01(a).
"Certificate Registrar and Transfer Agent" has the meaning specified in
Section 6.03(a).
"Certificate Register" has the meaning specified in Section 6.03.
"Closing Date" means ___________, 199_.
"Code" means the Internal Revenue Code of 1986.
"Collection Account" means the account described in Section 7.02(a).
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Agreement is located at the
address set forth in Section 11.03.
"Credit and Collection Policies" means written policies consistent with the
requirements of the Pooling and Servicing Agreement in effect from time to time
formulated by the [Master Administrator] in consultation with the Servicer and
agreed to by the [Master Servicer] as to the requirements of certain servicing
matters.
"Cumulative Subordination Payments" means, for any Distribution Date, an
amount equal to the sum of (a) all payments made to the Investor
Certificateholders minus (b) amounts attributable to interest on any Shortfall,
calculated at the Certificate Rate, over the term of this Agreement up to and
including such Distribution Date minus (c) the Investor's Share of the Available
Distribution Amount determined for all Distribution Dates up to and including
such Distribution Date.
"Dealer" means each automobile dealer with whom an Originator has entered
into an agreement which provides for, among other things, the origination of the
Auto Loans.
"Debt" means for any Person, (a) indebtedness of such Person for borrowed
money, (b) obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (c) obligations of such Person to pay the deferred
purchase price of property or services, (d) obligations of such Person as lessee
under leases which have been or should be, in accordance with GAAP, recorded as
capital leases, (e) obligations secured by any lien or
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other charge upon property or assets owned by such Person, even though such
Person has not assumed or become liable for the payment of such obligations, (f)
obligations of such Person under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (a) through (e) above,
and (g) liabilities in respect of unfunded vested benefits under plans covered
by ERISA. For the purposes hereof, the term "guarantee" shall include any
agreement, whether such agreement is on a contingency or otherwise, to purchase,
repurchase or otherwise acquire Debt of any other Person, or to purchase, sell
or lease, as lessee or lessor, property or services, in any such case primarily
for the purpose of enabling another Person to make payment of Debt, or to make
any payment (whether as an advance, capital contribution, purchase of an equity
interest or otherwise) to assure a minimum equity, asset base, working capital
or other balance sheet or financial condition, in connection with the Debt of
another Person, or to supply funds to or in any manner invest in another Person
in connection with Debt of such Person.
"Defaulted Auto Loan" means, for any Due Period, (a) an Auto Loan as to
which a claim has been submitted under the terms of the Insurance Policies to
the extent such Auto Loan is eligible for coverage thereunder, (b) an Auto Loan
determined to be uncollectible in accordance with the Servicer's customary
practices on or prior to the last day of such Due Period or (c) an Auto Loan
repurchased by the Originator or the Sponsor or purchased by the [Master
Servicer] pursuant to Section 3.03.
"Definitive Certificates" has the meaning specified in Section 6.01(b).
"Deposit Date" means the Business Day immediately preceding each related
Distribution Date or Monthly Fee Date.
"Depository" means The Depository Trust Company or a successor appointed by
the [Master Administrator]. Any successor to the Depository shall be an
organization registered as a "clearing agency" pursuant to Section 17A of the
Securities Exchange Act of 1934.
"Depository Agreement" means the agreement among the Sponsor, the Trustee,
the [Master Administrator] and the Depository dated on or before the Issuance
Date, substantially in the form of Exhibit J.
"Depository Participant" means a Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Determination Date" means the 15th day of each month (or the preceding
Business Day, if such day is not a Business Day) on
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which the [Master Administrator] will determine, among other things, the
Available Funds.
"Distribution Date" means the 20th day of each month specified as a month
in which a Distribution Date occurs in the Issuance Supplement (or, if such day
is not a Business Day, the next succeeding Business Day).
"Dollar" and "$" means lawful currency of the United States of America.
"Due Period" means with respect to the first Due Period following the
Issuance Date, the period from the Issuance Date to the last day of the calendar
month immediately preceding the first Distribution Date, and thereafter, the
three consecutive calendar months immediately preceding each subsequent
Distribution Date.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co., a nationally
recognized statistical rating organization, and any successor thereto.
"Electronic Ledger" means the electronic master record of the Auto Loans
maintained by the Servicer.
"Eligible Account" means a segregated account, which may be an account
maintained with the Trustee, which is either (a) maintained with a depository
institution or trust company whose long term unsecured debt obligations are
rated at least BBB+ by Duff & Xxxxxx (or, if such obligations are not rated by
Duff & Xxxxxx, BBB+ by Standard & Poor's and Baa1 by Moody's, provided, that if
only one such rating agency rates such institution, such single rating shall
suffice), or (b) a segregated trust account or similar account maintained with a
federally or state chartered depository institution subject to regulations
regarding fiduciary funds on deposit substantially similar to 12 C.F.R.
ss.9.10(b).
"Eligible Investments" means any of the following:
(a) obligations of, or guaranteed as to the full and timely payment of
principal and interest by, the United States or obligations of any agency or
instrumentality thereof, when such obligations are backed by the full faith and
credit of the United States;
(b) repurchase agreements on obligations specified in clause (a); provided,
that the short-term debt obligations of the party agreeing to repurchase are
rated no less than Duff-1 by Duff & Xxxxxx or, if not rated by Duff & Xxxxxx, no
less than A-1 by Standard & Poor's and P-1 by Moody's (provided, that if only
one such rating agency rates such party, such single rating shall suffice);
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(c) federal funds, certificates of deposit, time deposits and bankers'
acceptances (which shall each have an original maturity of not more than 90 days
and, in the case of bankers' acceptances, shall in no event have an original
maturity of more than 365 days) of any United States depository institution or
trust company incorporated under the laws of the United States or any state;
provided, that the short-term obligations of such depository institution or
trust company are rated no less than Duff-1 by Duff & Xxxxxx or, if not rated by
Duff & Xxxxxx, no less than A-1 by Standard & Poor's and P-1 by Moody's
(provided, that if only one such rating agency rates such party, such single
rating shall suffice);
(d) commercial paper (having original maturities of not more than 30 days)
of any corporation incorporated under the laws of the United States or any state
thereof which on the date of acquisition are rated no less than Duff-1 by Duff &
Xxxxxx or, if not rated by Duff & Xxxxxx, no less than A-1 by Standard & Poor's
and P-1 by Moody's (provided, that if only one such rating agency rates such
party, such single rating shall suffice);
(e) securities of money market funds rated AAm or better by Standard &
Poor's and Aa by Moody's (provided, that if only one such rating agency rates
such fund, such single rating shall suffice); and
(f) such other investment grade investments as shall be acceptable to the
Rating Agency.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended.
"Event of Administrator Termination" has the meaning specified in Section
5.07.
"Event of Default" has the meaning specified in Section 8.01.
"Event of Master Servicing Termination" has the meaning specified in
Section 4.12.
"Event of Servicing Termination" has the meaning specified in Section 4.14.
"Expected Final Payment Date" means the date specified as such in the
Issuance Supplement.
"Fractional Undivided Interest" means the fractional undivided interest in
the Investor Certificate Principal Balance that is evidenced by an Investor
Certificate and that is set forth on the face of such Investor Certificate;
provided, however, that the Trust shall only issue Investor Certificates
evidencing in the
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aggregate Fractional Undivided Interests totalling 100% of the Investor
Certificate Principal Balance.
"GAAP" means generally accepted accounting principles as in effect in the
United States, consistently applied, as of the date of such application.
"Governmental Authority" means the United States of America, any state,
local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions thereof
or pertaining thereto.
"Independent Public Accountant" means any of (a) Xxxxxx Xxxxxxxx & Co., (b)
Deloitte & Touche, (c) Coopers & Xxxxxxx, (d) Ernst & Young (e) KMPG Peat
Marwick and (f) Price Waterhouse (and any successors thereof); provided, that
such firm is independent with respect to the [Master Servicer], the Servicer, or
any Subservicer, as the case may be, within the meaning of the Securities Act of
1933.
"Individual Sold Balance" means (a) with respect to any Actuarial Auto Loan
and any Precomputed Auto Loan, the present value of all Scheduled Payments for
such Auto Loan due on or after the effective date of its transfer to the Trust
(calculated based on the assumption that each such Scheduled Payment is paid on
its due date), discounted monthly at one-twelfth of the related APR and (b) with
respect to any Simple Interest Auto Loan, the principal balance thereof as of
the effective date of its transfer to the Trust.
"Initial Principal Amount" means the initial principal amount of the
Investor Certificates authenticated and delivered on the Issuance Date.
"Insurance Companies" means _________________________.
"Insurance Policies" means the Auto Loan Protection Policy and the Blanket
Collateral Protection Policy issued by _____ at the request of the Sponsor in
the name of the Trust and attached hereto as Exhibits B and C, respectively.
"Insurer" means _________________________.
"Intended Tax Characterization" has the meaning specified in Section
2.05(b).
"Interest-Only Period" means the period commencing on the Issuance Date
until the first day of the Principal Amortization Period.
"Investor Certificate Principal Balance" means, for any Distribution Date,
the Initial Principal Amount reduced by all
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prior payments to the Investor Certificateholders allocable to principal.
"Investor Certificates" means the Certificates issued pursuant hereto.
"Investor Certificateholder" means the holder of record of an Investor
Certificate.
"Investor's Share" means, with respect to any Distribution Date, the
percentage, which shall not be greater than ____%, specified as the "Investor's
Share" in the Issuance Supplement.
"Issuance Date" means the date specified as such in the Issuance Supplement
on which the Investor Certificates will be authenticated and delivered by the
Trustee in accordance with the provisions of Section 6.02(b).
"Issuance Notice" has the meaning specified in Section 6.02(b)(i).
"Issuance Supplement" means a supplement to this Agreement complying with
the terms of Section 6.02(b)(vi) and executed in conjunction with the issuance
of the Investor Certificates.
"List of Auto Loans" means a list containing the Required Information with
respect to each Auto Loan delivered to the Trustee and certified by a duly
authorized officer of the Sponsor which is attached hereto as Schedule 1.
"Loan File" means, with respect to any Auto Loan, the original loan and
security agreement evidencing the Auto Loan and originals or copies of such
other documents and instruments relating to each Auto Loan and the security
interest on the selected Automobile as specified in the Credit and Collection
Policies.
"[Master Administrator] Duties" has the meaning specified in Section
5.01(b).
"[Master Administrator]'s Report" has the meaning specified in Section
5.11.
"Maximum Subordination Amount" means, on any Distribution Date, an amount
equal to the product of (a) the Originator's Share and (b) the aggregate
Principal Balance of the Auto Loans specified in the Issuance Supplement.
"Monthly Administrator Fee" means, with respect to any Monthly Fee Date, a
fee equal to the sum of (a) all late payment penalties paid by Obligors on Auto
Loans not paid to the [Master
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Servicer] pursuant to Section 4.08 during the immediately preceding calendar
month, (b) any prepayment penalties paid by Obligors in connection with any
prepayment of any Auto Loan (such penalties to include the excess of the amount
received from and not rebated to the Obligor in connection with a prepayment in
full of a Precomputed Auto Loan or an Actuarial Loan over the outstanding
Principal Balance plus accrued interest, determined in accordance with the
Actuarial Method) during the immediately preceding calendar month; and (c) all
net investment earnings on Eligible Investments in respect of the Collection
Account and the Cash Reserve Account during the period from the second preceding
Deposit Date to the immediately preceding Deposit Date.
"Monthly Fee Date" means the 20th day of each calendar month (or, if such
day is not a Business Day, the next succeeding Business Day) commencing
__________ 20, 199_.
"Monthly Servicing Fee" means, with respect to any Monthly Fee Date, a fee
equal to (a) the product of (i) ____% and (ii) the aggregate Principal Balance
of the Auto Loans as of the end of the month immediately preceding such Monthly
Fee Date, plus (b) the Reimbursable Servicer Expenses, plus (c) the Servicer
Penalty Payment Amount, plus (d) the Servicer Variable Amount.
"Monthly Subrogation Amount" means, with respect to any Monthly Fee Date,
amounts determined by the [Master Administrator] to be payable to the Insurer in
respect of claims paid under the Insurance Policies in connection with the
Insurer's subrogation rights thereunder during the immediately preceding
calendar month.
"Moody's" means Xxxxx'x Investors Service, Inc., a nationally recognized
statistical rating organization, and any successor thereto.
"Obligor" means, with respect to any Auto Loan, the Person primarily
obligated to make payments in respect thereto.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board, Vice Chairman of the Board, the President,
a Vice President, the Treasurer, the Secretary, an Assistant Secretary, or the
manager of such Person.
"Opinion of Counsel" means a written opinion of counsel (who may be counsel
to the Sponsor, the [Master Administrator], the [Master Servicer] or the
Servicer), which opinion is acceptable to the Trustee.
"Originator Certificate" means the Certificate authenticated by the Trustee
pursuant to Section 6.02.
"Originator Certificate Principal Balance" means, on any date of
determination, (a) prior to the Issuance Date, the sum of
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(i) the initial principal amount of the Originator Certificate plus (ii) any
additions to the Originator Certificate Principal Balance pursuant to Section
2.03(a) and (b) on and after the Issuance Date, the sum of (i) the Originator
Certificate Principal Balance determined on the Issuance Date plus (ii) any
additions to the Originator Certificate Principal Balance pursuant to Section
2.03(a) minus (iii) all prior payments to the Originator Certificateholder in
reduction of principal pursuant to Section 7.04(c)(ii) and Section 7.04(d)(iv).
"Originator's Interest" means the residual undivided ownership interest in
the Auto Loans owned by the Sponsor equal to the aggregate Principal Balance of
the Auto Loans less the Investor Certificate Principal Balance.
"Originator's Share" means, with respect to any Distribution Date, the
percentage, which shall not be less than ___%, specified as the "Originator's
Share" in the Issuance Supplement.
"Partial Payment Amount" means any payment of principal on an Auto Loan
which is received in advance of its scheduled due date, but excluding any
prepayment in full by an Obligor or Recoveries on Defaulted Auto Loans.
"Payments" for any Auto Loan for any Due Period means all amounts received
with respect to such Auto Loan during such Due Period on or after the effective
date of the transfer of such Auto Loan to the Trust, including, without
limitation, proceeds from any insurance policy including the Insurance Policies
(other than proceeds applied to the restoration or repair, or in certain
circumstances, replacement, of the related Automobile), but not including
amounts which constitute Recoveries on Defaulted Auto Loans, the Repurchase
Price of any Auto Loan and withdrawals from the Cash Reserve Account.
"Percentage" means the Fractional Undivided Interest owned by a particular
Investor Certificateholder, expressed as the percentage obtained by dividing the
denomination representing the initial principal amount of the related Investor
Certificate by the Initial Principal Amount.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
association, joint venture, Governmental Authority or any other entity of
whatever nature.
"Pool Factor" means an eight-digit decimal computed as of any Distribution
Date by dividing the Investor Certificate Principal Balance (after giving effect
to any payments to Investor Certificateholders allocable to principal on such
Distribution Date) by the Initial Principal Amount.
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"Precomputed Auto Loan" means any Auto Loan under which earned interest
(which may be referred to in the Auto Loan as the add-on finance charge) and
principal is determined according to the sum of periodic balances or the sum of
monthly balances or any equivalent method commonly referred to as the "Rule of
78s".
"Principal Amortization Event" means an Event of Default declared as such
pursuant to the requirements of Section 8.02.
"Principal Amortization Period" means the period (a) beginning on the
earlier to occur of (i) the first Distribution Date following the sixth monthly
anniversary of the Issuance Date, and (ii) the Distribution Date immediately
following the occurrence of a Principal Amortization Event and (b) ending on the
Trust Termination Date.
"Principal Balance" of an Auto Loan means, on any date of determination,
(a) with respect to a Simple Interest Auto Loan, the Individual Sold Balance
thereof reduced by that portion of all prior Payments received by the Servicer
with respect to such Auto Loan allocable to principal as reflected on the
records maintained by the Servicer (in accordance with the Credit and Collection
Policies) other than amounts allocable to the Partial Prepayment Amount and (b)
with respect to a Precomputed Auto Loan or an Actuarial Auto Loan, the
Individual Sold Balance minus that portion of all Scheduled Payments received on
or prior to such date allocable to principal using the Actuarial Method other
than amounts allocable to the Partial Prepayment Amount; provided that, for the
purpose of determining principal allocable to the Certificateholders, for every
Due Period following the Due Period with respect to which an Auto Loan is
repurchased or purchased by the [Master Servicer], an Originator or the Sponsor
in accordance with the provisions of Section 3.03 or in which such Auto Loan
becomes a Defaulted Auto Loan or is prepaid in full, the Principal Balance of
such Auto Loan shall be deemed to be zero.
"Purchase" has the meaning specified in Section 2.03(a).
"Purchase Assignment" means a certificate of assignment by the Sponsor to
the Trustee substantially in the form of Exhibit A giving notice of, and
evidencing, the transfer of ownership of the Transferred Assets by the Sponsor
to the Trustee for the benefit of the Certificateholders.
"Purchase Date" means the Closing Date and each day on which a Purchase is
made by the Trust.
"Purchase Notice" has the meaning specified in Section 2.03(b).
"Rating Agency" means any nationally recognized statistical organization
rating the Investor Certificates at the request of the Sponsor; as of the date
hereof, Duff & Xxxxxx.
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"Records" means all documents, books, records and other information
(including, without limitation, computer programs, tapes, disks, punch cards,
data processing software and related property and rights) prepared and
maintained by the Originator, the [Master Servicer], the Servicer or by or on
behalf of the Sponsor with respect to Auto Loans and the related Obligors.
"Record Date" means the last Business Day of the calendar month preceding
the month in which a Distribution Date occurs.
"Recoveries on Defaulted Auto Loans" means, for any Due Period, all amounts
received by the Servicer during such Due Period with respect to Defaulted Auto
Loans from any source including without limitation proceeds of insurance
(including insurance maintained by Obligor and the Insurance Policies), and the
Repurchase Price of Auto Loans repurchased by the Originator or the Sponsor or
purchased by the [Master Servicer] pursuant to Section 3.03.
"Reimbursable Servicer Expenses" means, with respect to any Monthly Fee
Date, all reasonable and customary fees and expenses of third parties incurred
by the [Master Servicer] or the Servicer (including fees and expenses of the
Trustee, to the extent not reimbursable by the [Master Administrator] pursuant
to Section 10.06, and expenses related to financing statements and titles) in
connection with their respective repossession and remarketing activities
hereunder including without limitation fees of attorneys, appraisers, third
party collateral managers and others (who shall have been retained by the
[Master Servicer] or the Servicer, as applicable, in accordance with the
servicing standard set forth in Section 4.01) for the month immediately
preceding such Monthly Fee Date.
"Related Documents" means each Assignment, each Sale Agreement, the
Insurance Policies, the Issuance Supplement and all documents and instruments
required to be delivered thereunder.
"Repurchase Price" means for any Due Period, (a) with respect to any Auto
Loan which the Sponsor is obligated to repurchase, or the [Master Servicer] is
required to purchase in accordance with the provisions of Section 3.03, the sum
of (i) the Principal Balance of such Auto Loan plus (ii) an amount equal to the
amount of interest accrued on such Principal Balance at the related APR from the
last day to which interest has been paid with respect to such Auto Loan through
the last day of the Due Period preceding the Deposit Date on which such Auto
Loan is repurchased and (b) with respect to any Auto Loan an Originator is
required to repurchase in accordance with the provisions of Sections 3.03 and
the related Sale Agreement, the amount specified in such Sale Agreement as the
"Repurchase Price" for such Auto Loan.
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"Required Cash Reserve Amount" means, on any day, the amount specified as
such in the Issuance Supplement but not more than the Available Subordination
Amount.
"Required Information" means, with respect to an Auto Loan (a) the name of
the Obligor, (b) the Individual Sold Balance, (c) the Principal Balance, (d) the
maturity date, (e) the APR and (f) the state of origination.
"Responsible Officer" shall mean any Vice President, any Assistant Vice
President, any Assistant Secretary, any Assistant Treasurer or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above-designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Sale Agreement" means any purchase agreement between and among the
Originator and the Sponsor, providing for the sale of the Auto Loans to the
Sponsor.
"Sale Assignment" means, with respect to any Auto Loan, the assignment
conveying such Auto Loan to the Sponsor under all applicable law in the state in
which the related Automobiles are located to permit the assignee or its agents
to exercise all rights granted by the Obligor under such Auto Loan and such
other documents and all rights available under applicable law to the obligee
under such Auto Loan and which, in each case, may, to the extent permitted by
the laws of the state in which the related Automobiles are located, be a blanket
instrument of assignment covering other Auto Loans as well.
"Scheduled Payment" means a payment due on an Auto Loan in accordance with
its terms.
"Service Transfer" has the meaning specified in Section 4.14.
"Servicer Duties" has the meaning specified in Section 4.04(a).
"Servicer Penalty Payment Amount" means, with respect to any Monthly Fee
Date, all penalties or reimbursement charges paid by Obligors on account of
payments returned for insufficient funds by their paying banks and __% of all
late payment penalties paid by Obligors on Auto Loans during the immediately
preceding calendar month.
"Servicer Report" has the meaning specified in Section 4.19.
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"Servicer Variable Amount" means, with respect to any Monthly Fee Date, an
amount not less than zero, equal to the excess of (a) the aggregate interest
accrued on all of the Auto Loans at the actual interest rate of each Auto Loan
during the immediately preceding calendar month calculated using the Actuarial
Method over (b) the aggregate interest accrued on all of the Auto Loans at an
annual interest rate of __% during the immediately preceding calendar month
calculated using the Actuarial Method.
"Servicing Officer" means any officer or employee of the [Master Servicer]
or the Servicer involved in, or responsible for, the administration and
servicing of Auto Loans whose name appears on a list of servicing officers
attached to Officer's Certificates furnished to the Trustee and the [Master
Administrator] by the [Master Servicer] and the Servicer, respectively, as such
lists may be amended from time to time.
"Shortfall" means, on any Distribution Date, an amount equal to the excess,
if any, of the amount of the interest calculated pursuant to Section
7.04(c)(i)(A) or Section 7.04(d)(i)(A), as the case may be, on any prior
Distribution Date over the amount of interest actually distributed to the
Investor Certificateholders on such Distribution Dates pursuant to Section
7.04(c)(i) or Section 7.04(d)(i), as the case may be.
"Simple Interest Auto Loan" means any Auto Loan under which the portion of
a payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
"Simple Interest Method" means the method of allocating fixed level monthly
payments on an Auto Loan between interest and principal whereby the amount
allocable to interest is equal to daily interest on the Principal Balance
thereof at the stated APR for the actual number of days elapsed since the
preceding payment was made, which is computed on the basis of either 360 days or
365 days as required by applicable state law, and by application of amounts
received first to interest accrued on a daily basis and then to principal.
"Standard & Poor's" means Standard & Poor's Corporation, a nationally
recognized statistical rating organization, and any successor thereto.
"Subcontractor" means any Person with whom the [Master Administrator]
enters into a Subcontracting Agreement.
"Subcontracting Agreement" means any written contract between the [Master
Administrator] and any Subcontractor, relating to the administration of the
Trust Assets.
"Subservicer" means any Person with whom the Servicer enters into a
Subservicing Agreement.
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"Subservicing Agreement" means any written contract between the Servicer
and any Subservicer, relating to servicing, and collection of Auto Loans, in
such form as has been approved by the Servicer and the [Master Administrator].
"Subsidiary" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the Board of Directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Successor [Master Administrator]" has the meaning specified in Section
5.08(a).
"Successor [Master Servicer]" has the meaning specified in Section 4.13(a).
"Successor Servicer" has the meaning specified in Section 4.15(a).
"Tax" or "Taxes" shall mean all taxes, charges, fees, levies or other
assessments including, without limitation, income, gross receipts, profits,
withholding, excise, property, sales, use, occupation and franchise taxes
(including, in each such case, any interest, penalties or additions attributable
to or imposed on or with respect to any such taxes, charges, fees or other
assessments) imposed by the United States, any state or political subdivision
thereof, any foreign government or any other jurisdiction or taxing authority.
"Title Document" means, with respect to any Auto Loan and the related
Automobile, either (a) the certificate of title for, or other evidence of a
security interest in (including, without limitation, proof of application for
notice of lien), such Automobile or (b) with respect to any jurisdiction in
which the certificate of title or other evidence of ownership is not issued to
the holder of a lien, evidence of the security interest in the Automobile, in
each case issued by the department of motor vehicles or other appropriate
Governmental Authority in the jurisdiction in which such Automobile or the
Obligor is located.
"Transferred Assets" means the Auto Loans, the Insurance Policies (other
than any obligation to make any payment thereunder to the Insurance Companies
and taxes on premiums paid or payable thereon, which shall be obligations of the
[Master Administrator] during such time as _____ is the [Master Administrator],
and at any time thereafter, the Originator), all rights of the Sponsor under
each Sale Agreement, all monies due or to become due and all amounts received
with respect thereto and all proceeds thereof.
"Trust" has the meaning ascribed thereto in the recitals to this Agreement.
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"Trust Assets" has the meaning specified in Section 2.01.
"Trust Operating Expenses" means, with respect to each Distribution Date,
the amounts payable under Section 7.04(a) on such date, and, without
duplication, the immediately preceding two Monthly Fee Dates.
"Trust Termination Date" has the meaning specified in Section 11.01.
"UCC" means the Uniform Commercial Code as in effect in the relevant state.
"U.S. Person" means a citizen or resident of the United States, a
corporation or partnership organized in or under the laws of the United States
or any state thereof, or an estate or trust, the income of which is subject to
United States Federal income taxation regardless of its source.
SECTION 1.02. Provisions of General Application. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) All accounting terms not specifically defined herein shall be construed
in accordance with GAAP.
(b) All terms used in Article 9 of the UCC, and not specifically defined
herein, are used herein as defined in such Article 9.
(c) The terms defined in this Article include the plural as well as the
singular.
(d) The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole. All references to Articles and
Sections shall be deemed to refer to Articles and Sections of this Agreement.
(e) References to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute to which reference
is made and all regulations promulgated pursuant to such statutes.
(f) For purposes of any calculations referred to in this Agreement (unless
otherwise specified), (a) all percentages resulting from such calculations will
be rounded up, if necessary, to the nearest one ten-thousandth of a percentage
point (e.g., 9.87654% (or .0987654) being rounded up to 9.8766% (or .098766))
and (b) all Dollar amounts used in or resulting from such calculations will be
rounded up to the nearest cent (e.g., $1,234.373 being rounded up to $1,234.38).
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SECTION 1.03. Calculation of Quarterly Interest. The calculation of the
amount of interest to be paid to Certificateholders on each Distribution Date
shall be made by the [Master Administrator] and shall be made on the basis of a
year consisting of 12 months each assumed to consist of 30 days; provided, that
in connection with any Due Period the duration of which is other than three
complete calendar months, interest for each completed calendar month shall be
computed at the monthly rate and any period since the last completed calendar
month shall be computed at the daily rate.
ARTICLE II
TRANSFER OF TRUST ASSETS
SECTION 2.01. Conveyance of Transferred Assets. On the Closing Date, the
Sponsor with the execution and delivery of this Agreement does hereby, and on
each Purchase Date, the Sponsor with the execution and delivery of each Purchase
Assignment will thereby, sell, grant, transfer, assign, set over and otherwise
convey to the Trustee, on behalf of the Trust, for the benefit of the
Certificateholders, without recourse, all right, title and interest of the
Sponsor in, to and under the Transferred Assets specified herein or therein, as
the case may be. Such property together with all funds on deposit in the
Collection Account and all funds on deposit in the Cash Reserve Account shall
constitute the assets of the Trust (the "Trust Assets").
SECTION 2.02. Acceptance by Trustee and Appointment of the [Master
Servicer] as Custodian. (a) The Trustee hereby acknowledges the conveyance of
the Transferred Assets and the receipt of the Loan Files and the other
Transferred Assets conveyed by the Sponsor hereunder and declares that the
Trustee, through a custodian, will hold such Auto Loans, the Loan Files, all
other Transferred Assets conveyed by the Sponsor and all other Trust Assets in
trust, for the use and benefit of all Certificateholders subject to the terms
and provisions hereof.
(b) The [Master Servicer] shall hold and acknowledges that it is holding
the Loan Files and all other Transferred Assets that it may from time to time
receive hereunder as custodian for the Trustee. The [Master Servicer] has
subcontracted the custodial duties hereunder to the Servicer; provided, that the
[Master Servicer] shall remain obligated and be liable to the Trustee on behalf
of the Certificateholders for the performance of such custodial duties without
diminution of such obligation and liability by virtue of the appointment of the
Servicer and to the same extent and under the same terms and conditions as if
the [Master Servicer] alone were the custodian of the Transferred Assets.
(c) The Servicer shall perform its duties under this Section 2.02 in
accordance with the standard set forth in Section
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4.01 as such standard applies to servicers acting as custodial agents. The
Servicer shall promptly report to the [Master Administrator], the [Master
Servicer] and the Trustee any failure by it to hold the complete Loan Files as
herein provided and shall promptly take appropriate action to remedy any such
failure but only to the extent (i) any such failure is caused by the acts or
omissions of the Servicer and (ii) such remedial action is otherwise within its
capabilities or control. As custodian, the Servicer shall have and perform the
following powers and duties:
(i) hold the Loan Files on behalf of the Trustee for the benefit
of the Trust, maintain accurate records pertaining to each Auto Loan to
enable it to comply with the terms and conditions of this Agreement, and
maintain a current inventory thereof;
(ii) implement policies and procedures in accordance with the
Servicer's normal business practices with respect to the handling and
custody of the Loan Files so that the integrity and physical possession of
the Loan Files will be maintained; and
(iii) attend to all details in connection with maintaining
custody of the Loan Files on behalf of the Trustee on behalf of the Trust.
(d) In acting as custodian of the Loan Files, the Servicer agrees further
that it does not and will not have or assert any beneficial ownership interest
in the Auto Loans or the Loan Files. Promptly upon the Trust's acquisition
thereof and the Servicer's receipt thereof, the Servicer on behalf of the Trust
shall xxxx conspicuously each original contractual document with an Obligor, and
its master data processing records evidencing each Auto Loan with a legend,
acceptable to the [Master Administrator] and the Trustee, evidencing that the
Trust has purchased the Auto Loans and all right and title thereto and interest
therein as provided herein and in the related Purchase Assignment.
(e) The Servicer agrees to maintain the related Loan Files at its office
located in _______________ or at such other offices of the Servicer as shall
from time to time be identified by prior written notice to the [Master
Administrator], the [Master Servicer] and the Trustee. Subject to the foregoing,
the Servicer may temporarily move individual Loan Files or any portion thereof
without notice as necessary to conduct collection and other servicing
activities.
SECTION 2.03. Additional Purchases. (a) Prior to the commencement of the
Principal Amortization Period, the Trust shall, upon the written request of the
Sponsor, purchase additional Auto Loans (each, a "Purchase") from the Sponsor on
the terms and subject to the conditions of this Agreement, in an aggregate
principal amount such that at any one time after giving effect to
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such Purchase, the total Principal Balance of Auto Loans acquired by the Trust
(determined as of the close of business on the last Business Day of the
immediately preceding Due Period) is up to, but not exceeding, the Available
Purchase Amount.
(b) On any Business Day which is a Purchase Date, the Sponsor shall give
the [Master Administrator] and the Servicer written notice of each Purchase (in
each case, a "Purchase Notice") (a) specifying the Individual Sold Balance of
each Auto Loan sold thereby to the Trust on such Purchase Date and (b) including
a representation by the Sponsor that the Purchase requested shall not be greater
than the Available Purchase Amount. The [Master Administrator] and the Servicer
may without any duty to make any independent investigation with respect thereto,
rely on the facts set forth in such Purchase Notice.
(c) On each Purchase Date, following its delivery of a Purchase Notice, the
Sponsor will complete, execute and deliver a Purchase Assignment to the [Master
Administrator]. The [Master Administrator] and the Servicer, as custodian for
and on behalf of the Trustee shall thereupon execute such Purchase Assignment
and deliver executed copies thereof to each other and to the Sponsor. The
Servicer shall, on the Closing Date and on each monthly anniversary thereof
until the beginning of the Principal Amortization Period, deliver to, or accept
as custodian for, the Trustee on behalf of the Trust all Assignments and Sale
Agreements delivered to it since the last such delivery to the Trustee
(including, any Assignments and Sale Agreements delivered to it pursuant to
Section 2.04).
(d) Following delivery of a duly executed Purchase Assignment, subject to
the satisfaction of the conditions set forth in Section 2.04, (i) the Dollar
amount of the Originator Certificate Principal Balance represented by the
Originator Certificate will increase in the amount of the aggregate Principal
Balance of the Auto Loans conveyed to the Trust on such Purchase Date and (ii)
the ownership of all Transferred Assets specified in such Purchase Assignment
(including Auto Loans transferred prior to the related Purchase Date) will be
vested in the Trustee for the benefit of the Certificateholders and such
Transferred Assets shall become part of the Trust Assets.
SECTION 2.04. Conditions Precedent to All Purchases. Each Purchase shall be
subject to the conditions precedent that:
(a) On the related Purchase Date, the Sponsor shall have certified in the
related Purchase Assignment that:
(i) the representations and warranties of the Sponsor, and, to
the best of its knowledge, the [Master Administrator], the [Master
Servicer] and the Servicer set forth in Sections 3.01, 3.02, 4.03 and 5.04
are true and
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correct on and as of such date, before and after giving effect to such
Purchase, as though made on and as of such date;
(ii) to the best of its knowledge, no event has occurred, or
would result from such Purchase or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both;
(iii) the Sponsor is in compliance with each of its covenants set
forth herein;
(iv) to the best of its knowledge, no event has occurred which
constitutes an Event of Master Servicing Termination or would constitute an
Event of Master Servicing Termination but for the requirement that notice
be given or time elapse or both;
(v) to the best of its knowledge, no event has occurred which
constitutes an Event of Servicing Termination or would constitute an Event
of Servicing Termination but for the requirement that notice be given or
time elapse or both;
(vi) no event has occurred which constitutes an Event of
Administrator Termination or would constitute an Event of Administrator
Termination but for the requirement that notice be given or time elapse or
both;
(b) The Principal Amortization Period shall not have begun;
(c) The Sponsor shall have delivered to the Servicer as custodian for and
on behalf of the Trustee an executed copy of the related Sale Agreement (if such
Sale Agreement has not been previously delivered to the Trustee) and Sale
Assignment and an Officer's Certificate stating that all conditions precedent to
the effectiveness thereof shall have been satisfied to the extent that the
failure to do so would have a material adverse effect on the Certificateholders;
(d) Each of the Sponsor, the [Master Administrator], the [Master Servicer],
the Originator and the Servicer shall have taken such other action, including
delivery of approvals, consents, opinions, documents and instruments as may be
reasonably requested by each of them, the Trustee or the Rating Agency with
respect to the transactions contemplated by this Agreement or such Purchase
Assignment.
SECTION 2.05. Grant of Security Interest; Tax Treatment. (a) Except with
respect to the Intended Tax Characterization, it is the intention of the parties
hereto that the conveyance by the Sponsor of the Transferred Assets to the
Trustee on behalf of the
22
Trust on the Closing Date and each Purchase to be made hereunder shall
constitute a purchase and sale of such Transferred Assets and not a loan. In the
event, however, that a court of competent jurisdiction were to hold that the
transaction evidenced hereby constitutes a loan and not a purchase and sale, it
is the intention of the parties hereto that this Agreement and each related
Purchase Assignment shall constitute a security agreement under applicable law,
and that the Sponsor shall be deemed to have granted to the Trustee, on behalf
of the Trust, a first priority perfected security interest in all of the
Sponsor's right, title and interest in, to and under the Transferred Assets and
the other Trust Assets. The conveyance by the Sponsor of the Transferred Assets
to the Trustee on behalf of the Trust on the Closing Date and the Purchases
shall not constitute and are not intended to result in an assumption by the
Trustee or any Certificateholder of any obligation of the Sponsor to the
Obligors, the Originator, the insurers under any insurance policies including
the Insurance Policies, or any other Person in connection with the Transferred
Assets.
(b) It is the intention of the Sponsor that, with respect to all Taxes, the
Investor Certificates will be treated as indebtedness of the Sponsor to the
Investor Certificateholders secured by the Transferred Assets (the "Intended Tax
Characterization"). The Sponsor and the Trustee, by entering into this
Agreement, and each Investor Certificateholder by the purchase of an Investor
Certificate, agree to report such transactions for purposes of all Taxes in a
manner consistent with the Intended Tax Characterization.
(c) The Sponsor shall take no action inconsistent with the Trust's
ownership of the Transferred Assets and shall indicate or shall cause to be
indicated in its records and records held on its behalf that ownership of each
Auto Loan and the other Transferred Assets is held by the Trustee on behalf of
the Trust. In addition, the Sponsor shall respond to any inquiries from third
parties with respect to ownership of an Auto Loan or any other Transferred Asset
by stating that it is not the owner of such Auto Loan and that ownership of such
Auto Loan or other Transferred Asset is held by the Trustee on behalf of the
Trust.
SECTION 2.06. Further Action Evidencing Assignments. (a) The Sponsor agrees
that, from time to time, at its expense, it will promptly execute and deliver
all further instruments and documents, and take all further action, that may be
necessary or appropriate, or that the [Master Administrator], the [Master
Servicer], the Servicer or the Trustee may reasonably request, in order to
perfect, protect or more fully evidence the transfer of ownership of the
Transferred Assets or to enable the Trustee to exercise or enforce any of its
rights hereunder, and under any Purchase Assignment. Without limiting the
generality of the foregoing, the Sponsor will, upon the request of the [Master
Administrator] on its behalf or on behalf of the [Master Servicer],
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the Servicer or the Trustee execute and file (or cause to be executed and filed)
such financing or continuation statements, or amendments thereto or assignments
thereof, and such other instruments or notices, as may be necessary or
appropriate including, without limitation, recording and filing UCC-1 financing
statements, amendments or continuation statements with the office of the
Secretary of State of the state of the location of chief executive office of the
Sponsor (and other locations): (i) on or prior to the Closing Date; and (ii) not
more than five days after the effective date of any change of the name, identity
or structure or relocation of its chief executive office or any change that
would make any UCC-1 or continuation statement previously filed pursuant to this
Agreement seriously misleading within the meaning of applicable provisions of
the UCC.
(b) The Sponsor hereby grants to the [Master Administrator] a power of
attorney to execute all documents on behalf of the Sponsor as may be necessary
or desirable to effectuate the foregoing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Sponsor. The Sponsor
represents and warrants to the [Master Administrator], the [Master Servicer],
the Servicer and the Trustee, as of the Closing Date and on each day until the
Trust Termination Date, as follows:
(a) The Sponsor is a corporation duly organized, validly existing and in
good standing under the laws of the state of Nevada and is duly qualified to do
business, and is in good standing in each jurisdiction in which the nature of
its business requires it to be so qualified and which permits such
qualification;
(b) The Sponsor has the power and authority to own and convey all of its
properties and to execute and deliver this Agreement and the Related Documents
and to perform the transactions contemplated hereby and thereby;
(c) The Sponsor is operated in such a manner that it would not be
substantively consolidated in the bankruptcy trust estate of any Affiliate, such
that the separate existence of the Sponsor and any Affiliate would be
disregarded;
(d) The Sponsor has not engaged, and does not presently engage and shall
not engage, in any activity other than the activities substantially similar to
those undertaken pursuant to this Agreement and the Related Documents and
activities ancillary or incident thereto;
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(e) The Sponsor has not entered into any agreement or arrangement including
the Interim Financing (i) pursuant to which it grants rights in any of the Trust
Assets to any Person and (ii) which does not include a provision in form and
substance similar to Section 11.10;
(f) The execution, delivery and performance by the Sponsor of this
Agreement, the Related Documents and the transactions contemplated hereby and
thereby, (i) have been duly authorized by all necessary partnership or other
action on the part of the Sponsor, (ii) do not contravene or cause the Sponsor
to be in default under (A) the Sponsor's certificate of incorporation (B) any
contractual restriction contained in any indenture, loan or credit agreement,
lease, mortgage, security agreement, bond, note, or other agreement or
instrument binding on or affecting the Sponsor or its property, (C) any law,
rule, regulation, order, writ, judgment, award, injunction, or decree applicable
to, binding on or affecting the Sponsor or its property, and (iii) do not result
in or require the creation of any Adverse Claim upon or with respect to any of
the property of the Sponsor;
(g) This Agreement and the Related Documents have each been duly executed
and delivered on behalf of the Sponsor;
(h) No consent of, or other action by, and no notice to or filing with, any
Governmental Authority or any other party, is required for the due execution,
delivery and performance by the Sponsor of this Agreement or any of the Related
Documents or for the perfection of or the exercise by the Trustee of any of its
rights or remedies thereunder which have not been obtained;
(i) Each of this Agreement, and each other Related Document is the legal,
valid and binding obligation of the Sponsor enforceable against the Sponsor in
accordance with its respective terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws relating to or affecting the rights of creditors generally, and by general
principles of equity (regardless of whether such enforcement is consideration in
a proceeding in law or in equity);
(j) There is no pending or threatened action, suit or proceeding, nor any
injunction, writ, restraining order or other order of any nature against or
affecting the Sponsor, its officers or directors, or the property of the
Sponsor, in any court or tribunal, or before any arbitrator of any kind or
before or by any Governmental Authority (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the sale and
assignment of any Auto Loan or the consummation of any of the transactions
contemplated thereby, (iii) seeking any determination or ruling that might
materially and adversely affect (A) the performance by the Sponsor of this
Agreement or any of the Related Documents, (B) the validity or enforceability of
this Agreement or any of the Related Documents, (C) any Auto Loan,
25
(D) the federal income tax attributes of the Investor Certificates, or (iv)
asserting a claim for payment of money adverse to the Sponsor or the conduct of
its business or which is inconsistent with the due consummation of the
transactions contemplated by this Agreement or any of the Related Documents;
(k) The principal place of business and chief executive office of the
Sponsor are located at the address indicated in Section 11.04 and there are now
no, and there have not been any, other locations where the Sponsor is located
(as that term is used in the UCC) or keeps Records except, after the date of
this Agreement, as disclosed in writing to the Trustee and the [Master
Administrator];
(l) The legal name of the Sponsor is as set forth in the beginning of this
Agreement and the Sponsor does not use any tradenames, fictitious names, assumed
names or "doing business as" names;
(m) The Sponsor does not have any Subsidiary;
(n) The Sponsor is solvent and will not become insolvent after giving
effect to the transactions contemplated by this Agreement and each of the
Related Documents; and the Sponsor's transfers of Transferred Assets to the
Trust have been and will be made for reasonably equivalent value and fair
consideration; and
(o) The Sponsor has complied in all material respects with all applicable
laws, rules, regulations, and orders with respect to it, its business and
properties and all of the Transferred Assets.
SECTION 3.02. Representations and Warranties as to Each Auto Loan and the
other Transferred Assets. (a) The Sponsor represents and warrants, as to each
Auto Loan, that, to the best of its knowledge, as of the Purchase Date of such
Auto Loan:
(i) such Auto Loan is eligible for coverage under and is covered
by the Insurance Policies;
(ii) the Required Information in respect of such Auto Loan on the
List of Auto Loans delivered pursuant to Section 5.03(a)(iii) is true and
correct in all material respects as of the date of delivery thereof, and
such Auto Loan is denominated in and payable in Dollars;
(iii) such Auto Loan (A) includes a validly perfected first
priority security interest in the Automobile in favor of the Trustee or the
Originator (and if perfected in the name of the Originator, assigned
pursuant to the Sale Agreement to the Trustee on behalf of the Trust), as
provided in the related Sale Agreement, as secured party and has not been
released from such lien in whole or in part, and (B) is
26
subject to a physical damage/collision insurance policy on the Automobile
with a maximum deductible of no more than $___, which security interest and
insurance are assignable and have been so assigned to the Trust;
(iv) such Auto Loan has not been satisfied, subordinated or
rescinded; and no provision of the Auto Loan has been waived, altered or
modified in any respect, except by instruments or documents identified in
the Loan File;
(v) such Auto Loan is not and will not be subject to any right of
rescission, set-off, recoupment, counterclaim or defense, whether arising
out of transactions concerning the Auto Loan or otherwise and no such right
has been asserted with respect thereto;
(vi) the Sponsor has conveyed to the Trust good and marketable
title to the Auto Loan, free and clear of any Adverse Claim;
(vii) there is no default, breach, violation, or event permitting
acceleration under the Auto Loan, and no event has occurred which, with
notice and the expiration of any grace or cure period or both, would
constitute a default, breach, violation, or event permitting acceleration
under such Auto Loan; and
(viii) such Auto Loan constitutes the legal, valid and binding
obligation of the Obligor thereunder enforceable against the Obligor in
accordance with their respective terms (except as may be limited by laws
affecting creditors' rights in similar transactions generally) and the
documents evidencing such Auto Loan contain enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
realization against the collateral for the benefit of the security afforded
thereby.
(b) With respect to each Auto Loan sold to the Sponsor pursuant to each
Sale Agreement, a true and complete copy of which has been delivered to the
Trustee and the [Master Administrator], on the date of such sale the Originator
made the additional representations and warranties as set forth in the related
Sale Agreement. The Sponsor hereby assigns to the Trustee on behalf of the Trust
such benefits and its rights under the Sale Agreements to cause the Originator
to repurchase an Auto Loan as to which there has occurred an uncured breach of a
representation or warranty in respect of the representations and warranties set
forth in the related Sale Agreement. The Trustee hereby acknowledges such
assignment.
(c) The Sponsor hereby certifies that the representations and warranties
described in this Section 3.02 shall survive the sale of the Auto Loans to the
Trust.
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SECTION 3.03. Repurchases and Purchases. (a) Upon discovery by any of the
Sponsor, the [Master Administrator], the [Master Servicer] or the Servicer, or
actual knowledge of a Responsible Officer of the Trustee, of (i) a breach of any
of the representations and warranties set forth in Sections 3.01 and 3.02,
without regard to any limitation set forth in such representation or warranty
concerning the knowledge of the Sponsor as to the facts stated therein, which
materially and adversely affects the interests of the Trust in any Auto Loan,
(ii) a failure of any Loan File to contain original documents as set forth in
Sections 2.02 and 4.04(a)(i), if the Trust is unable to enforce the obligations
of the related Obligor by reason of not having possession of such original
documentation, or (iii) a failure to make any filing referred to in Section
2.06, which materially and adversely affects the interest of the
Certificateholders in any Auto Loan or which results in a loss, the party
discovering such breach shall give prompt written notice to the others. If, on
the Deposit Date in the month following the expiration of a 90 day period since
the date of such notice referred to in the immediately preceding sentence, such
breach or failure shall remain uncured, the Auto Loan as to which the breach or
failure relates shall be repurchased or purchased for the Repurchase Price as
follows:
(i) in respect of matters set forth in Sections 2.06, 3.01, and
3.02(a), by the Sponsor;
(ii) in respect of the matters set forth in Section 3.02(b), the
[Master Administrator] shall enforce the Trust's right to effect a
repurchase of such Auto Loan against the Originator; and
(iii) in respect of matters set forth in Sections 2.02 and
4.04(a)(i), by the [Master Servicer];
provided, that (A) none of the foregoing shall relieve the Servicer of its
obligations to make claims under the Insurance Policies within the time period
required by the Insurance Policies and (B) receipt of any payment under the
Insurance Policies shall not lower the Repurchase Price nor result in any refund
in respect thereof as to any party purchasing or repurchasing an Auto Loan under
this Section 3.03.
(b) Upon receipt by the Trustee of written certification of the [Master
Administrator] to the effect that the Repurchase Price has been deposited in the
Collection Account, the Trustee on behalf of the Trust shall order the Servicer
to release such Auto Loan and the related Loan File to the Sponsor, the
Originator or the [Master Servicer], as the case may be, and the Trustee on
behalf of the Trust shall assign to the Sponsor, the Originator or the [Master
Servicer], as the case may be, all of the Trust's and the Certificateholders'
right, title and interest in such purchased or repurchased Auto Loan, and all
property and rights conveyed to the Trustee relating thereto (excluding,
however, payments
28
previously received under the Insurance Policies), and the Assignments to the
extent such payments relate to such repurchased or purchased Auto Loans, without
recourse, representation or warranty, except as to the absence of liens, charges
or encumbrances created by or arising as a result of actions of the Trustee
except as to liens, charges or encumbrances created or arising out of this
Agreement. The Trustee and the Sponsor shall execute and deliver to the Sponsor,
the Originator, or the [Master Servicer], as the case may be, an assignment
substantially in the form of Exhibit D to vest ownership of the repurchased Auto
Loan in such party. The repurchase and purchase obligations pursuant to this
Section 3.03 constitute the sole remedy available to the Trustee and the
Certificateholders for a breach of a representation or warranty or agreement of
the Sponsor, set forth in Sections 2.06, 3.01 and 3.02 or the agreements of the
[Master Servicer] and the Servicer, as the case may be, set forth in Section
2.02 and 4.04(a)(i); provided, that the foregoing limitation shall not be
construed to limit in any manner the right of the [Master Administrator], the
Trustee or the Investor Certificateholders to declare a Principal Amortization
Event to have occurred or to terminate the responsibilities of the [Master
Servicer] or the Servicer hereunder to the extent such breaches also constitute
or contribute to the determination of a Principal Amortization Event or an Event
of Master Servicing Termination or an Event of Servicing Termination. For the
purposes of this Agreement, an Auto Loan has not been "repurchased" or
"purchased" by the Sponsor, the Originator or the [Master Servicer], as the case
may be, pursuant to this Section 3.03 unless the Repurchase Price therefor has
been deposited into the Collection Account.
ARTICLE IV
SERVICING OF TRUST ASSETS
SECTION 4.01. [Appointment of [Master Servicer]. (a) ___ agrees to act as
the [Master Servicer] to perform all servicing duties under this Agreement
subject to the terms hereof.
(b) Except as specifically identified herein as duties of the [Master
Servicer], the [Master Servicer] hereby subcontracts all servicing duties
hereunder to the Servicer; provided, that the [Master Servicer] shall remain
obligated and be liable to the Trust and the Trustee for the servicing and
administration of the Auto Loans in accordance with the provisions hereof
without diminution of such obligation and liability by virtue of the appointment
of the Servicer and to the same extent and under the same terms and conditions
as if the [Master Servicer] alone were servicing and administrating the Auto
Loans.
(c) Each of the [Master Servicer] and the Servicer shall perform its
respective obligations pursuant to this Agreement on behalf of and for the
benefit of the Trust in accordance with the
29
terms of this Agreement, the respective Auto Loans and applicable law and, to
the extent consistent with such terms, in the same manner in which, and with the
same care, skill, prudence and diligence with which, it services and administers
Auto Loans of similar credit quality for other portfolios, if any, giving due
consideration to customary and usual standards of practice of prudent
institutional automobile and loan servicers and, in each case, taking into
account its other obligations hereunder, but without regard to:
(i) any relationship that the [Master Servicer] or the Servicer,
any Subservicer or any Affiliate of the [Master Servicer] or the Servicer
or any Subservicer may have with the related Obligor;
(ii) the ownership of any Certificate by the [Master Servicer] or
the Servicer or any Affiliate of the [Master Servicer] or the Servicer;
(iii) the [Master Servicer]'s, the Servicer's or any
Subservicer's right to receive compensation for its services hereunder or
with respect to any particular transaction; or
(iv) the ownership, or servicing for others, by the [Master
Servicer] or the Servicer or any Subservicer, of any other automobile loans
or property.
In the event that the [Master Servicer] or the Servicer believes that it is
unable to comply with the requirements of this Section 4.01(c) with respect to
any particular Auto Loan as a result of one or more of the factors described in
the foregoing clauses (i) through (iv), it may enter into a Subservicing
Agreement pursuant to Section 4.02 pursuant to which a Subservicer shall perform
its duties with respect to such Auto Loan. In such event, so long as such
Subservicer performs such duties on behalf of the [Master Servicer] or the
Servicer, as applicable, in accordance with the requirements of this Section
4.01, then the [Master Servicer] or the Servicer shall be deemed to be in
compliance therewith. Subject to any express limitations set forth in this
Agreement, the [Master Servicer] and the Servicer shall also seek to maximize
the timely and complete recovery of principal and interest on Auto Loans;
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the [Master Servicer] or the Servicer of the
collectibility of the Auto Loans. Notwithstanding any other provision of this
Agreement, the Servicer shall at all times service the Auto Loans in a manner
consistent with maintaining their eligibility for coverage under the Insurance
Policies.
(d) The [Master Servicer] and the Servicer are authorized and empowered by
the Trustee to execute and deliver, on behalf of themselves, the Trust, the
Certificateholders, or the Trustee or any of them, any and all instruments of
satisfaction or
30
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to the Auto Loans or the related Automobiles. Without
limiting the generality of the foregoing, the Trustee shall, upon the receipt of
a written request of a Servicing Officer, execute and deliver to the [Master
Servicer] or the Servicer any limited powers of attorney and other documents
prepared by the Servicer and necessary or appropriate (as certified in such
written request) to enable the [Master Servicer] or the Servicer, as applicable,
to carry out its servicing duties hereunder (including without limitation
matters relating to the Insurance Policies and certificates of title with
respect to the Automobiles), and the Trustee shall not be held responsible for
any negligence by the [Master Servicer] or the Servicer, as applicable, in its
use of such limited powers of attorney.]
SECTION 4.02. Subservicing Agreements Between Servicer and Subservicer. (a)
The Servicer may, with the prior written consent of the [Master Servicer] and
the [Master Administrator], enter into Subservicing Agreements with a
Subservicer for the performance of all or a part of the Servicer Duties.
References in this Agreement to actions taken or to be taken by the Servicer in
performance of the Servicer Duties include actions taken or to be taken by a
Subservicer on behalf of the Servicer. Each Subservicing Agreement will be upon
such terms and conditions as are not inconsistent with this Agreement. The
Servicer shall provide notice to the [Master Administrator], the [Master
Servicer], the Trustee and the Rating Agency in writing promptly upon the
appointment of any Subservicer. For purposes of this Agreement, the receipt by
the Subservicer of any amount with respect to an Auto Loan (other than amounts
representing servicing compensation or reimbursement or an advance) shall be
treated as the receipt by the Servicer of such amount.
(b) Except as provided in Section 4.02(e), the Servicer shall be entitled
to terminate any Subservicing Agreement that may exist in accordance with the
terms and conditions of such Subservicing Agreement and without any limitation
by virtue of this Agreement.
(c) Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Servicer or a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the [Master Servicer] and the Servicer shall remain obligated and liable to the
Trustee, the Trust and the [Master Administrator] for the servicing and
administering of the Auto Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability (including their
respective indemnity of obligations under Section 9.03) by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer or the Servicer and to the same extent and under the same terms and
conditions as if the [Master Servicer] and the Servicer alone were servicing and
administering the Auto Loans. The [Master Servicer]
31
and the Servicer shall be entitled to enter into any agreement with a
Subservicer for indemnification of the [Master Servicer] and the Servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
(d) Any Subservicing Agreement that may be entered into and any other
transaction or services relating to the Auto Loans involving a Subservicer in
its capacity as such and not as an Originator shall be deemed to be between the
Subservicer and the Servicer alone and the [Master Administrator], the [Master
Servicer], the Trustee and the Certificateholders shall not be deemed parties
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Subservicer.
(e) If the Servicer shall for any reason no longer be the Servicer
hereunder (including by reason of any Event of Servicing Termination), the
Servicer, upon prior written notice to the [Master Administrator] and the
Trustee, shall thereupon terminate each Subservicing Agreement that may have
been entered into, and the [Master Administrator], the Trustee and the successor
Servicer shall not be deemed to have assumed any of the Servicer's interest
therein or to have replaced the Servicer as a party to any such Subservicing
Agreement.
SECTION 4.03. Representations and Warranties of the Servicer and the
[Master Servicer]. Each of the [Master Servicer] and the Servicer, with respect
to itself, represents and warrants to the Sponsor, the [Master Administrator]
and the Trustee, as follows, as of the date hereof:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation and is duly qualified to
do business, and is in good standing in every jurisdiction in which the nature
of its business requires it to be so qualified, it is or will be in compliance
with the laws of each state to the extent necessary to ensure the enforceability
of each Auto Loan and the servicing of the Auto Loans under this Agreement and
has obtained all necessary licenses with respect to it required by law to enable
it to perform its duties herein;
(b) It has the power and authority to execute, deliver and perform this
Agreement and the transactions contemplated hereby;
(c) The execution, delivery and performance by it of this Agreement, and
all other agreements, instruments and documents which may be delivered by it
pursuant hereto, and the transactions contemplated thereby, (i) have been duly
authorized by all necessary corporate or other action, on the part of it, (ii)
do not contravene or cause it to be in default under (A) its charter or by-laws,
(B) any contractual restriction with respect to any Debt of it or contained in
any indenture, loan or credit agreement, lease, mortgage, security agreement,
bond, note, or other agreement
32
or instrument binding on or affecting it or its property or (C) any law, rule,
regulation, order, writ, judgment, award, injunction or decree applicable to or
binding on or affecting it or its property, and (iii) do not result in or
require the creation of any Adverse Claim upon or with respect to any of its
properties;
(d) This Agreement has been duly executed and delivered on behalf of it;
(e) No consent of, or other action by, and no notice to or filing with, any
Governmental Authority or any other party is required for the due execution,
delivery and performance by it of this Agreement or any other agreement,
document or instrument to be delivered hereunder;
(f) This Agreement is its legal, valid and binding obligation enforceable
against it in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally, and by
general principles of equity (regardless of whether such enforcement is
consideration in a proceeding in law or in equity);
(g) There is no pending or threatened action, suit or proceeding, nor any
injunction, writ, restraining order or other order of a material nature against
or affecting it, its officers or directors, or its property, in any court or
tribunal, or before any arbitrator of any kind or before or by any Governmental
Authority (i) asserting the invalidity of this Agreement or any document to be
delivered by it hereunder or (ii) seeking any determination or ruling that might
materially and adversely affect (A) the performance by it of its obligations
under this Agreement, or (B) the validity or enforceability of this Agreement or
any document to be delivered by it hereunder or (iii) which is inconsistent with
the due consummation by it of the transactions contemplated by this Agreement;
and
(h) Its servicing facilities, plant, personnel, records and products are
adequate for the performance of its duties hereunder, including, in the case of
the [Master Servicer], the duties of the Servicer hereunder.
SECTION 4.04. Duties and Responsibilities of the Servicer. (a) The Servicer
shall service and make collections on the Auto Loans and otherwise enforce the
rights of the Trust in the Auto Loans and the other Trust Assets, in conformity
with Section 4.01 and as more specifically described in the Credit and
Collection Policies, as such Credit and Collection Policies are amended from
time to time (the "Servicer Duties"). The Servicer Duties shall include at all
times:
(i) certifying to the Sponsor and the Trustee on behalf of the
Trust prior to the Sponsor's purchase of an Auto
33
Loan that it has received (A) the related Loan File containing each item
under the related Sale Agreement and (B) an executed Sale Assignment;
(ii) monitoring and tracking Automobile titles and insurance;
(iii) billing, collection and recording of Payments including
sending each Obligor a letter notifying it to send payments to the Eligible
Account maintained by the Servicer for such purpose; (provided that the
Servicer shall not make any change in its instructions to any Obligor
regarding payments to be made in respect of the Auto Loans other than
pursuant to Sections 4.04(d), 4.04(e) and 4.15(c));
(iv) communicating with and providing billing records to
Obligors;
(v) depositing of all Payments and other monies received in
respect of the Auto Loans (without offset or deduction) into an account
maintained by the Servicer in the name of the Trust (which account shall be
an Eligible Account), and thereafter (A) depositing all such sums into the
Collection Account in accordance with Section 7.02(b) and (B) paying all
investment earnings, if any, on sums in such account to the [Master
Administrator] on each Distribution Date;
(vi) administering and enforcing all rights and responsibilities
of the holder of the Auto Loans provided for in the Assignments and
Insurance Policies;
(vii) submitting information on the Auto Loans to the Insurance
Companies or their designated agents (as specified in the Credit and
Collection Policies) for coverage under the Insurance Policies; receiving
Payments as the Trust's agent on the Insurance Policies as well as on the
insurance policies maintained by the Obligors, filing claims with the
Insurance Companies with respect thereto and working with the [Master
Administrator] to resolve any disputes in respect thereto;
(viii) issuance of the reports to the [Master Administrator], the
Trustee and the Rating Agency required by this Agreement;
(ix) providing the [Master Administrator] with such assistance as
it may require for the preparation and timely delivery of the List of Auto
Loans pursuant to Section 5.03(a)(iii), and furnishing, on request of the
[Master Administrator], the Trustee or the Rating Agency, such reasonably
pertinent underlying data as can be generated by the Servicer's existing
data processing systems without, in the opinion of the Servicer, undue
modification or expense;
34
(x) repossessing and remarketing of Automobiles following Obligor
defaults;
(xi) maintaining such books of account and other records as will
enable the [Master Administrator] and the Trustee to determine the status
of each Auto Loan;
(xii) providing the Obligors with any reports required by
applicable law; and
(xiii) making payments in respect of certain Auto Loan
origination reimbursement obligations of the Sponsor arising in connection
with the acquisition of the Auto Loans, as directed by the Sponsor, but in
no event shall the Servicer be required to make such a payment such that
the aggregate payments made by it exceed the aggregate Servicer Interest
Amount received by it unless the Sponsor shall have provided such funds to
it.
(b) The Servicer may xxx to enforce or collect upon the Auto Loans in its
own name, or as agent for the Trust. If the Servicer elects to commence a legal
proceeding to enforce an Auto Loan in its own name, the act of commencement
shall be deemed to be an automatic assignment of the Auto Loan by the Trustee to
the Servicer for purposes of collection only. If in any enforcement suit or
legal proceeding it is held that the Servicer may not enforce an Auto Loan on
the grounds that it is not a real party in interest or a holder entitled to
enforce the Auto Loan, the Trustee, on behalf of the Trust, and with the consent
of the Servicer, shall take such steps as the Servicer deems necessary to assign
to the Servicer the Auto Loan solely for the purpose of permitting the Servicer
to enforce the Auto Loan.
(c) The Servicer shall exercise any rights of recourse against third
Persons that exist with respect to any Auto Loan (except with respect to any
repurchase obligation of the Originator, which shall be enforced by the [Master
Administrator] pursuant to Section 3.03) or otherwise in accordance with the
Servicer's usual practice and the standard of care required by Section 4.01.
(d) In accordance with the standard of care in Section 4.01 the Servicer
may grant to the Obligor on any Auto Loan any rebate, refund or adjustment that
the Servicer in good faith believes is required under the Auto Loan or
applicable law in connection with a prepayment in full of the Auto Loan, and may
deduct the amount of any such rebate, refund or adjustment from the amount
otherwise payable by the Servicer into the Collection Account. The Servicer may
not permit any rescission or cancellation of any Auto Loan nor may it take any
action with respect to any Auto Loan, Insurance Policy or Assignment which would
materially impair the rights of the Trust or the Certificateholders therein or
in the proceeds thereof.
35
(e) The Automobile securing an Auto Loan shall not be released by or on
behalf of the Sponsor or the Servicer from the security interest granted by such
Auto Loan in whole or in part, except:
(i) when such Auto Loan has been paid in full;
(ii) immediately upon any exchange or substitution of such Automobile
by the Dealer or manufacturer thereof in settlement of claims as to defects,
breach of warranties, and similar matters, with an Automobile of equal or
greater collateral value as of the date of such exchange in the reasonable
judgment of the Servicer (subject to all the terms hereof including the
recordation of the Trustee's lien thereon and the requirements of the Insurance
Policies); or
(iii) as otherwise contemplated in Section 3.03; provided, however,
that the Servicer may extend any Auto Loan for credit related reasons,
consistent with the servicing standard in Section 4.01, subject to the
limitations on extensions and modifications on Auto Loans set forth in the
Insurance Policies.
(f) Except as expressly provided herein, neither the [Master Servicer] nor
the Servicer shall sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create any Adverse Claim upon or with respect to, any Auto Loan
(or any right to income in respect thereof), or any account in which any
Payments are deposited, or assign any right to receive income in respect of any
Auto Loan.
SECTION 4.05. Fidelity Bond, Errors and Omissions Insurance. The Servicer
shall maintain, at its own expense, a blanket fidelity bond and an errors and
omissions insurance policy, with broad coverage with responsible companies on
all officers, employees or other Persons acting on behalf of the Servicer in any
capacity with regard to the Trust Assets to handle funds, money, documents and
papers relating to the Trust Assets. Any such fidelity bond and errors and
omissions insurance shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Persons and shall be maintained in a form and amount that
would meet the requirements of prudent institutional auto loan servicers. No
provision of this Section 4.05 requiring such fidelity bond and errors and
omissions insurance shall diminish or relieve the Servicer from its duties and
obligations as set forth in this Agreement. The Servicer shall be deemed to have
complied with this provision if one of its respective Affiliates has such
fidelity bond and errors and omissions policy coverage and, by the terms of such
fidelity bond and errors and omissions policy, the coverage afforded thereunder
extends to the Servicer. The Servicer shall cause each and every Subservicer for
it to maintain a policy of insurance covering errors and omissions and a
fidelity bond which would meet such requirements. Upon request of the [Master
36
Administrator], the [Master Servicer] or the Trustee, the Servicer shall cause
to be delivered to the [Master Administrator] or the Trustee a certification
evidencing coverage under such fidelity bond and insurance policy. Any such
fidelity bond or insurance policy shall not be cancelled or modified in a
materially adverse manner without ten days' prior written notice to the [Master
Administrator] and the Rating Agency.
SECTION 4.06. Inspection. (a) At all times during the term hereof, each of
the [Master Servicer] and the Servicer shall afford the [Master Administrator]
and the Trustee and its authorized agents, upon reasonable notice, reasonable
access (subject to the security rules and regulations of the [Master Servicer]
or the Servicer, as the case may be) during normal business hours to their
respective records relating to the Auto Loans and the other Trust Assets
conveyed pursuant to Section 2.01 and Section 2.05 and will cause their
respective personnel to assist in any examination of such records by the
Trustee, provided, that the foregoing shall not require the [Master
Administrator] or Trustee to conduct any inspection. The examination referred to
in this Section 4.06 will be conducted in a manner which does not unreasonably
interfere with the [Master Servicer]'s or the Servicer's normal operations or
customer or employee relations or require the [Master Servicer] or the Servicer
to disclose or expose confidential information related to its services to their
other clients. Without otherwise limiting the scope of the examination, the
[Master Administrator] and the Trustee may, using generally accepted auditing
standards, verify the status of each Auto Loan and review the Loan Files,
Electronic Ledger and records relating thereto for conformity to reports
prepared pursuant to Section 4.19 and compliance with the standards represented
to exist as to each Auto Loan in this Agreement.
(b) All information obtained by the [Master Administrator] regarding the
Obligors and the Auto Loans, whether upon exercise of its rights under this
Section 4.06 or otherwise, shall be maintained by the [Master Administrator] in
confidence and shall not be disclosed to any other Person, except as otherwise
required by applicable law or regulation.
SECTION 4.07. Trustee to Cooperate. Upon payment in full on any Auto Loan,
the Servicer shall notify the Trustee in writing on the next succeeding Deposit
Date (which notification shall include a statement to the effect that all
amounts received in connection with such payment in full which are required to
be deposited in the Collection Account pursuant to Section 7.02(b) have been so
deposited) and if the related Loan File is not at the time held by the Servicer
as the custodian of the Trustee, shall request delivery of the Auto Loan and
Loan File to the Servicer. Upon receipt of such request, the Trustee shall
promptly release or cause to be released such Auto Loan and the related Loan
File if appropriate to the Servicer by executing a release and assignment
37
in the form of Exhibit E hereto, which assignment shall be without recourse to
the Trustee (except as to the absence of liens, charges or encumbrances created
by or arising as a result of actions taken by the Trustee other than those
created by or arising from this Agreement). Upon receipt of such Auto Loan and
Loan File, the Servicer shall be authorized to execute an instrument in
satisfaction of such Auto Loan and to take such other actions and execute such
other documents as it deems necessary to discharge the Obligor thereunder and
eliminate the security interest in the Automobile related thereto. The Servicer
shall determine when an Auto Loan has been paid in full. Upon request of a
Servicing Officer, the Trustee shall perform such other acts as reasonably
requested by the Servicer and otherwise cooperate with the Servicer in
enforcement of the Certificateholder's rights and remedies with respect to the
Auto Loans, the Assignments and the Insurance Policies; provided, however, the
Trustee shall not be required to take any action in breach of its fiduciary
duties, and nothing herein shall require the Trustee to advance its own funds.
SECTION 4.08. Servicing Fee; Servicing Expenses. The [Master Servicer]
shall be paid the Monthly Servicing Fee in accordance with the provisions of
Section 7.04(a). No later than ten Business Days prior to the next Monthly Fee
Date, the Servicer shall provide the [Master Administrator] with a list of items
eligible for reimbursement under the Monthly Servicing Fee, in such reasonable
detail as the [Master Administrator] may request, together with its
certification by a Servicing Officer that all such items are eligible for
inclusion within the Monthly Servicing Fee. The [Master Administrator] may rely
on such certification without independent investigation of the matters set forth
therein. Except to the extent of the Monthly Servicing Fee, the [Master
Servicer] shall be required to pay for all expenses incurred by it and by the
Servicer in connection with their respective activities hereunder (including any
payments to accountants, counsel, Subservicers, or any other Person) and shall
not be entitled to any payment or reimbursement therefor. In the event that no
[Master Servicer] is appointed pursuant to Section 4.13(a), the Monthly
Servicing Fee shall be paid in accordance with the provisions of Section 7.04 to
the Servicer.
SECTION 4.09. [Master Servicer] To Maintain Computer Link. Without
limitation of its obligations in respect of the other provisions of this
Agreement, and in addition to the duties of the Servicer, the [Master Servicer]
has provided and will maintain on-line computer linkage capability with the
Servicer so as to enable the [Master Servicer] to convert and use the Servicer's
files in a form suitable for immediate assumption of its duties as Servicer
pursuant to Section 4.15.
SECTION 4.10. [Master Servicer] and Servicer Not to Resign. Neither the
[Master Servicer] nor the Servicer, as the case may be, shall resign from the
obligations and duties hereby
38
imposed on it except upon its determination that (a) the performance of its
duties hereunder has become impermissible under applicable law and (b) there is
no reasonable action which the [Master Servicer] or the Servicer, as the case
may be, could take to make the performance of its duties hereunder permissible
under applicable law. Any such determination permitting the resignation of the
[Master Servicer] or the Servicer, as the case may be, shall be evidenced as to
clause (a) above by an Opinion of Counsel to such effect delivered to the
[Master Administrator] and the Trustee and as to clause (b) by on Officer's
Certificate to such effect delivered to the [Master Administrator] and the
Trustee. The action referred to in clause (b) above will not be considered
reasonable if it requires the payment of extraordinary fees or costs for which
the [Master Servicer] or the Servicer, as the case may be, are not eligible for
reimbursement under Section 4.08. Promptly upon any resignation pursuant to this
Section 4.10, the [Master Administrator] shall notify the Rating Agency thereof.
SECTION 4.11. Change in Business of the [Master Servicer] or the Servicer.
The Sponsor, the [Master Administrator] and the Trustee on behalf of the
Certificateholders have entered into this Agreement with the [Master Servicer]
and the Servicer, respectively as to each, in reliance upon its ability to
perform the servicing duties, if necessary, without any delegation thereof; the
adequacy of its plant, personnel, records and procedures; its integrity,
reputation and financial standing and the continuance of each of the foregoing.
Neither the [Master Servicer] nor the Servicer shall, without prior written
consent of the [Master Administrator] (a) make any material change in the
character of its business; or (b) merge with or into or consolidate with or
into, or convey, transfer, lease or otherwise dispose of all or substantially
all of its assets (whether now owned or hereafter acquired), or acquire all or
substantially all of the assets or capital stock or other ownership interest of,
any other corporation; provided, however, that the sole remedy of the Trustee on
behalf of the Certificateholders and the [Master Administrator] shall have in
respect of the Servicer's noncompliance with the provisions of the preceding
clauses (a) and (b) shall be to terminate the Servicer's rights and
responsibilities pursuant to Section 4.14. The [Master Administrator] shall
consent to the changes referred to in the preceding clauses (a) and (b) if, but
only if, the Rating Agency indicates in writing to the [Master Administrator]
and the Trustee that such changes would not result in a review with negative
implications, suspension, downgrade, withdrawal or other adverse effect on the
rating of the Investor Certificates.
SECTION 4.12. Events of Master Servicing Termination. If any of the
following events (each, an "Event of Master Servicing Termination") shall occur
and be continuing:
(a) Failure on the part of the [Master Servicer] to observe or perform any
term, covenant or agreement in this
39
Agreement, including the [Master Servicer] duties under Section 4.09, which
materially affects the rights of the Certificateholders and which continues
unremedied for five Business Days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the [Master
Servicer] by the [Master Administrator] or the Trustee; or
(b) Any proceeding shall be instituted against the [Master Servicer] (or,
if the [Master Servicer] is actively contesting the merits thereof, such
proceeding is not dismissed within 90 days) seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or any of its Debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
(c) The commencement by the [Master Servicer] of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the [Master Servicer] in an involuntary
case or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the [Master Servicer] or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability
to pay its Debts generally as they become due, or the taking of corporate action
by the [Master Servicer] in furtherance of any such action; or
(d) There is at any time a material breach of any of the representations
and warranties of the [Master Servicer] set forth in Section 4.03; or
(e) The short term unsecured debt obligations of the [Master Servicer]
shall be rated no less than Duff-2 by Duff & Xxxxxx (or if not at such time
rated by Duff & Xxxxxx, (i) no less than A-2 by Standard & Poor's and P-2 by
Moody's (provided, that if only one such rating agency rates such party, such
single rating
40
shall suffice) and (ii) the [Master Servicer] shall give prompt notice of any
downgrade by Standard & Poor's or Moody's to Xxxx & Xxxxxx); and provided,
further, that an Event of Master Servicing Termination shall not be deemed to
have occurred if, following the occurrence of the [Master Servicer]'s short-term
unsecured debt rating falling below the foregoing ratings, the Rating Agency
confirms in writing to the [Master Administrator] and the Trustee that such
decline will not result in a review with negative implications, suspension,
downgrade, withdrawal or other adverse effect on the rating of the Certificates,
at which point such new rating shall be substituted in place of the ratings
provided above, subject to the same conditions as to any further downgrade;
then, and in any such event, either the [Master Administrator] or the Trustee
may by delivery to the [Master Servicer] of a written notice specifying the
occurrence of any of the foregoing events terminate the servicing and custodial
responsibilities of the [Master Servicer] hereunder, without demand, protest or
further notice of any kind, all of which are hereby waived by the [Master
Servicer]; provided, that, in the event any of the events described in
subsections (b) or (c) shall have occurred, termination of the duties and
responsibilities of the [Master Servicer] shall automatically occur, without,
demand, protest, or further notice of any kind, all of which are expressly
waived by the [Master Servicer]. The Trustee or the [Master Administrator], as
the case may be, shall simultaneously with any declaration of any Event of
Master Servicing Termination, give notice thereof to the Rating Agency, the
[Master Administrator], the [Master Servicer], the Servicer and the Trustee.
SECTION 4.13. Appointment of the Successor Master Servicer. (a) Upon
termination of the [Master Servicer]'s responsibilities under this Agreement
pursuant to Section 4.10 or Section 4.12, the [Master Administrator] may, but
shall not be obligated to unless the Rating Agency indicates by written notice
to the [Master Administrator] that such failure would result in a suspension,
downgrade, or withdrawal of the then current rating assigned to the Investor
Certificates, appoint a successor [Master Servicer] acceptable to the Trustee
and the Rating Agency (a "Successor [Master Servicer]"). Such Successor [Master
Servicer] shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the [Master Servicer] under this Agreement; provided,
that such Successor [Master Servicer] and the Trustee shall have no
responsibility for any actions of the [Master Servicer] prior to the date of the
appointment of such Successor [Master Servicer] as [Master Servicer]. Prior to
the appointment of such Successor [Master Servicer], the Trustee shall be
authorized and empowered to execute and deliver, on behalf of the [Master
Servicer], as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do any and all acts or things necessary or appropriate to
effect the purposes of such notice of termination and to perform the duties of
the [Master Servicer] hereunder
41
(including its duties as Successor Servicer hereunder but excluding its duty to
indemnify pursuant to Article IX). The standard of care, representations and
warranties, covenants, liabilities, rights of indemnification, and all other
rights and obligations of the Trustee under this Agreement shall also be
applicable to the Trustee in its capacity hereunder. In the event no Successor
[Master Servicer] has been appointed within 60 days of the removal of a [Master
Servicer] and the Trustee has received written notice from the Rating Agency to
the effect that failure to appoint a successor [Master Servicer] will or has
resulted in suspension, downgrade or withdrawal of the rating assigned to the
Investor Certificates, the Trustee may petition a court of competent
jurisdiction to appoint a Successor [Master Servicer].
(b) Any Successor [Master Servicer] appointed hereunder (including the
Trustee during such time as it functions as the Successor [Master Servicer])
shall be entitled to reasonable compensation (including the estimated costs of
such servicing and a reasonable profit) which shall be determined by the [Master
Administrator]; provided, that if the [Master Administrator] or any of its
Affiliates is the Successor [Master Servicer], the Trustee shall agree to the
amount of such compensation. The amount of such compensation may result in an
increase or decrease in the Monthly Servicing Fee.
(c) The outgoing [Master Servicer], the [Master Administrator], the Trustee
and the Successor [Master Servicer] shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession, including,
without limitation, the express assumption by such Successor [Master Servicer]
of the duties and obligations of the outgoing [Master Servicer] hereunder.
(d) Upon appointment, any Successor [Master Servicer] shall be successor in
all respects to the outgoing [Master Servicer] under this Agreement and the
transactions set forth or provided for herein and shall be subject to all
responsibilities, duties and liabilities relating thereto placed upon the
[Master Servicer] by the terms and provisions hereof (subject to the same
limitations as are contained in this Section 4.13 with respect to a succession
to the outgoing [Master Servicer] by the Trustee).
SECTION 4.14. Events of Servicing Termination. If any of the following
events (each, an "Event of Servicing Termination") shall occur and be
continuing:
(a) Any failure by the Servicer to make any payment or deposit required to
be made by it hereunder and the continuance of such failure for a period of one
Business Day after the date upon which written notice of such failure shall have
been given to the Servicer by the [Master Administrator] or the Trustee; or
42
(b) Failure on the part of the Servicer to observe or perform any term,
covenant or agreement in this Agreement which materially adversely affects the
rights of the Certificateholders and which continues unremedied for 30 Business
Days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the [Master
Administrator] or Trustee; or
(c) Any proceeding shall be instituted against the Servicer (or, if the
Servicer is actively contesting the merits thereof, such proceeding is not
dismissed within 90 days) seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or any of its Debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or
(d) The commencement by the Servicer of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Servicer in an involuntary case or proceeding under
any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Servicer or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its Debts generally as
they become due, or the taking of corporate action by the Servicer in
furtherance of any such action; or
(e) The Servicer shall fail to deliver a report expressly required by this
Agreement, and the continuance of such failure for a period of five Business
Days after the date upon which written notice of such failure shall have been
given to the Servicer by the [Master Administrator] or the Trustee (except that
such five day period shall be deemed not to run as to any portion of such report
during such time as the Servicer's failure to provide such information is for
cause or inability beyond its control; or
43
(f) There is at any time a material breach of any of the representations
and warranties of the Servicer set forth in Section 4.03; or
(g) An Event of Master Servicing Termination has occurred and the [Master
Administrator] or the Trustee has terminated the servicing and custodial
responsibilities of the [Master Servicer] pursuant to Section 4.12 and is
required to appoint a Successor [Master Servicer] pursuant to Section 4.13(a);
then, and in any such event, either the [Master Administrator] or the Trustee
may by delivery to the Servicer of a written notice specifying the occurrence of
any of the foregoing events terminate the servicing and custodial
responsibilities of the Servicer hereunder, without demand, protest or further
notice of any kind, all of which are hereby waived by the Servicer (such
termination being herein called a "Service Transfer"); provided, that, in the
event any of the events described in subsections (c) or (d) shall have occurred,
termination of the duties and responsibilities of the Servicer shall
automatically occur, without, demand, protest, or further notice of any kind,
all of which are expressly waived by the Servicer. The Trustee or the [Master
Administrator], as the case may be, shall simultaneously with any declaration of
any Event of Servicing Termination, give notice thereof to the Rating Agency,
the [Master Administrator], the [Master Servicer], the Servicer and the Trustee.
SECTION 4.15. Appointment of the Successor Servicer. (a) Upon termination
of the Servicer's responsibilities under this Agreement pursuant to Section 4.10
or Section 4.14 the [Master Servicer] shall immediately assume all of the
Servicer's responsibilities, duties and obligations as Servicer. On or at any
time after the date of such assumption, the [Master Servicer] may appoint a
successor Servicer acceptable to the [Master Administrator], the Trustee and the
Rating Agency (a "Successor Servicer"). Such Successor Servicer shall succeed to
all rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement; provided, that such Successor Servicer shall have
no responsibility for any actions of the Servicer prior to the date of the
appointment of such Successor Servicer as Servicer. In the event the [Master
Servicer] fails to assume the duties of the Servicer or appoint a Successor
Servicer pursuant to the terms of this Agreement, the Trustee shall be
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do any and all acts or things necessary or appropriate to effect the purposes
of such notice of termination or perform the duties of the Servicer hereunder
(excluding its duty to indemnify pursuant to Article IX). The standard of care,
representations and warranties, covenants, liabilities, rights of
indemnification, and all other rights and obligations of the Trustee under this
Agreement shall also be applicable to the Trustee in its capacity hereunder. The
Trustee
44
may petition a court of competent jurisdiction to appoint a Successor Servicer
if the [Master Servicer] fails to assume the duties of the Servicer or appoint a
Successor Servicer within 60 days of the removal of a Servicer.
(b) Any Successor Servicer appointed hereunder (including the Trustee,
during such time as it functions as the successor Servicer) shall be entitled to
reasonable compensation (including the estimated costs of its servicing and a
reasonable profit) which shall be determined by the [Master Administrator],
provided that if the [Master Administrator] or any of its Affiliates is the
Successor Servicer, the Trustee shall agree to the amount of such compensation.
The amount of such compensation may result in an increase or decrease in the
Monthly Servicing Fee.
(c) The outgoing Servicer, the [Master Servicer], the [Master
Administrator], the Trustee and the Successor Servicer shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession, including, without limitation, (i) the express assumption by such
Successor Servicer of the duties and obligations of the outgoing Servicer
hereunder, (ii) notifying Obligors in writing to make payments under the Auto
Loans to the Successor Servicer, and (iii) providing such Successor Servicer
with all Records maintained or held by it as Servicer hereunder.
(d) Upon appointment, any Successor Servicer shall be successor in all
respects to the outgoing Servicer under this Agreement and the transactions set
forth or provided for herein and shall be subject to all responsibilities,
duties and liabilities relating thereto placed upon the Servicer by the terms
and provisions hereof (subject to the same limitations as are contained in this
Section 4.15 with respect to a succession to the outgoing Servicer by the
Trustee).
SECTION 4.16. Effect of Service Transfer. (a) After any Service Transfer,
the Successor Servicer shall notify (or, to the extent that the Servicer
provided such notice pursuant to Section 4.15(c), confirm the instructions to)
Obligors to make payments under the Auto Loans directly to the Successor
Servicer.
(b) After any Service Transfer, the outgoing Servicer shall have no further
obligations with respect to the management, servicing, custody or collection of
the Auto Loans and the Successor Servicer shall have all of such obligations,
except that the outgoing Servicer will transmit or cause to be transmitted
directly to the Successor Servicer for its own account, promptly on receipt and
in the same form in which received, any amounts held by the outgoing Servicer
(properly endorsed where required for the Successor Servicer to collect them)
received as Payments upon or otherwise in connection with the Auto Loans.
45
(c) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including, but not limited to, the obligations and
indemnities of the outgoing Servicer or the Sponsor pursuant to Section 9.02 and
Section 9.03) other than those relating to the management, servicing, custody or
collection of the Auto Loans.
SECTION 4.17. Annual Reports; Statements as to Compliance. (a) The [Master
Servicer] and the Servicer shall each deliver to the [Master Administrator] and
the Trustee as soon as available, but in any event within 120 days after the end
of each of its fiscal years, a consolidated and consolidating balance sheet of
it and its Subsidiaries, if any, as at such last day of the fiscal year, a
consolidated and consolidating statements of income and retained earnings and
statements of cash flow, for each such fiscal year, each prepared in accordance
with GAAP, in reasonable detail, and as to the consolidated statements,
certified without qualification by an Independent Public Accountant, who may
also render other services to the [Master Servicer], the Servicer, or any of
their Affiliates and certified, as to the consolidating statements by the chief
financial officer of the [Master Servicer] or the Servicer, as the case may be,
as fairly presenting the financial position and the results of operations of the
[Master Servicer] or the Servicer, respectively, as at and for the year ending
on its date and as having been prepared in accordance with GAAP.
(b) The [Master Servicer] and the Servicer shall each, and shall cause any
Subservicer (to the extent (a) such Person is in any manner receiving Payments
or (b) required by the [Master Administrator] or the Rating Agency by written
notice to the [Master Administrator] and the Trustee) hereunder to, deliver to
the [Master Administrator] and the Trustee on or before __________ of each year,
beginning with _________, 199_ an Officer's Certificate stating, as to each
signer thereof, that (a) a review of the activities of the [Master Servicer],
the Servicer, or the Subservicer, as the case may be, during the preceding
calendar year and of performance under this Agreement has been made under such
officer's supervision and (b) to the best of such officer's knowledge, based on
such review, the [Master Servicer], the Servicer or Subservicer, as the case may
be, has fulfilled all its respective 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 and remedies therefor being pursued.
(c) The [Master Servicer] and the Servicer shall promptly (but in any event
within five Business Days) notify the Trustee and the [Master Administrator]
upon receiving actual knowledge of any event which constitutes an Event of
Master Servicing Termination or and Event of Servicing Termination or would
constitute an Event of Master Servicing Termination or an
46
Event of Servicing Termination but for the requirement that notice be given or
time elapse or both.
SECTION 4.18. Annual Independent Public Accountants' Servicing Report. On
or before __________ of each year, beginning with ________, 199_ each of the
[Master Servicer] (during such time that it directly performs the duties of the
Servicer hereunder), the Servicer and any Subservicer (to the extent (a) in any
manner receiving Payments or (b) required by the [Master Administrator] or the
Rating Agency by written notice to the [Master Administrator] and the Trustee)
hereunder, at its expense shall cause an Independent Public Accountant to
furnish a statement to the [Master Administrator] and the Trustee to the effect
that such firm has examined certain documents and records relating to the
servicing of the Auto Loans and the reporting requirements with respect thereto
and that, on the basis of such examination, such servicing and reporting
requirements applicable to each of the foregoing entities have been conducted in
compliance with this Agreement, except for (a) such exceptions as such firm
shall believe to be immaterial and (b) such other exceptions as shall be set
forth in such statement.
SECTION 4.19. Servicer Reports. (a) The Servicer shall furnish by the 13th
day of each month in which a Distribution Date occurs (or, if such day is not a
Business Day, the next succeeding Business Day), to the [Master Administrator]
and the Trustee, an Officer's Certificate, substantially in the form attached
hereto as Exhibit F (the "Servicer Report") which shall include the following
information with respect to the Due Period prior to the related Distribution
Date:
(i) the aggregate Principal Balance of the Auto Loans and the
number of Auto Loans at the beginning of such Due Period (and, by period of
delinquency, current, 30-59 days, 60-89 days, 90-119 days and over 120 days
delinquent);
(ii) the aggregate Principal Balance of the Auto Loans at the end
of the such Due Period (and, by period of delinquency, current, 30-59 days,
60-89 days, 90-119 days and over 120 days delinquent);
(iii) the amount of Payments collected by the Servicer and
deposited into the Collection Account during such Due Period (identifying
the components of such amount (e.g., interest payments, scheduled principal
payments, prepayments, etc.));
(iv) the amount and computation of the Monthly Servicing Fees
paid and to be paid to the [Master Servicer] in respect of such Due Period;
(v) the number of Auto Loans and their aggregate Principal
Balances which (A) became Defaulted Auto Loans during the such Due Period
and (B) have their payment
47
schedules extended or modified in accordance with the provisions of Section
4.04(e);
(vi) the number and the aggregate Repurchase Price of all Auto
Loans to be repurchased by the Sponsor, the Originator, or the [Master
Servicer] pursuant to Section 3.03 during such Due Period (including on the
Deposit Date immediately preceding the Distribution Date with respect to
such Due Period);
(vii) Recoveries on Defaulted Auto Loans received by the Servicer
during such Due Period;
(viii) the number of Automobiles repossessed during such Due
Period, the aggregate Principal Balances of the related Auto Loans, and the
number of Automobiles disposed of following repossession during such Due
Period;
(ix) an Auto Loan by Auto Loan schedule of claims filed and
payments received under each of the Insurance Policies during such Due
Period, including the date and amount of claims filed and received and
identifying the components thereof as to principal and interest; and
(x) the total amount of net losses incurred during such Due
Period identifying the components of such loss (e.g., aggregate outstanding
Principal Balance written-off, deductibles on insurance claims and
uninsured claims).
(b) The Servicer shall furnish by the 13th day of each calendar month in
which a Distribution Date does not occur (or, if such day is not a Business Day
the next succeeding Business Day), to the [Master Administrator], a certificate
of a Servicing Officer, substantially in the form attached hereto as Exhibit F
(the "Servicer Report") which shall include the following information with
respect to the immediately preceding calendar month:
(i) the information and schedules referred to in Section 4.19(a)
determined with respect to such calendar month;
(ii) an Auto Loan by Auto Loan schedule of monthly amortization
of unearned interest on Actuarial Loans and Precomputed Loans with respect
to such calendar month;
(iii) an Auto Loan by Auto Loan schedule of interest accruals of
Simple Interest Loans, as of the end of such calendar month; and
(iv) reports with respect to the Originator including (A)
generation of Auto Loans by the Originator and (B) Delinquency Reports with
respect to Auto Loans originated
48
by the Originator (computed as to the delinquency periods specified in
Section 4.19(a)(i)).
(c) Each Servicer Report shall include a certification that the information
contained in such certificate is accurate and that no Event of Servicing
Termination, or event that with notice or lapse of time or both would become an
Event of Servicing Termination, has occurred, or if an Event of Servicing
Termination or such event has occurred and is continuing, specifying the Event
of Servicing Termination or such event and its status.
[ARTICLE V]
[THE [Master Administrator]]
[SECTION 5.01. Appointment of [Master Administrator]. (a) _____ agrees to
act as the [Master Administrator] under this Agreement and the
Certificateholders by their acceptance of Certificates consent to _____ acting
as [Master Administrator].
(b) The [Master Administrator] shall conduct the duties specified in this
Agreement as duties of the [Master Administrator] (the "[Master Administrator]
Duties") in accordance with (i) customary and prudent business practices for the
performance of similar activities, all applicable laws, rules and regulations
with respect to it, its business and properties and all Auto Loans, Insurance
Policies, and other Trust Assets with respect thereto and, (ii) to the extent
consistent with the foregoing, in the same manner in which, and the same care,
skill, prudence and diligence with which, it performs similar management and
administrative services for its own account or on behalf of other Persons giving
due consideration to customary and prudent business practices.
SECTION 5.02. Subcontracting Agreements Between Master Administrator and
Subcontractor. The [Master Administrator] may enter into Subcontracting
Agreements with a Subcontractor for the performance of all or a part of the
duties to be performed by the [Master Administrator] hereunder if the [Master
Administrator] delivers to the Trustee and the Rating Agency an Officer's
Certificate of the [Master Administrator] notifying such parties of the
appointment of the Subcontractor and the entering into of the Subcontracting
Agreement; provided, that the [Master Administrator] shall remain obligated and
be liable to the Trustee and the Certificateholders for the performance of its
duties specified in this Agreement without diminution of such obligations and
liability by virtue of the appointment of a Subcontractor and to the same extent
and under the same terms and conditions as if the [Master Administrator] alone
were performing such duties. References in this Agreement to actions taken or to
be taken by the [Master Administrator] in performance of the [Master
Administrator] Duties include actions taken or to be taken by a Subcontractor on
behalf of the [Master Administrator]. The Servicer may be a Subcontractor
49
and during such time as it is a Subcontractor, its relationship to the [Master
Administrator] shall be separate and apart from its obligations as the Servicer.
Each Subcontracting Agreement will be upon such terms and conditions as are not
inconsistent with this Agreement and as the [Master Administrator] and the
Subcontractor have agreed.
SECTION 5.03. Duties and Responsibilities of the Master Administrator. (a)
In addition to the other duties specified in this Agreement, the [Master
Administrator] Duties shall consist of: (i) filing periodic requests for
confirmation of coverage under the Insurance Policies; (ii) assisting the
Servicer in working with the Insurance Company on claims which are disputed or
not paid in a timely manner to effect their resolution; (iii) delivering the
List of Auto Loans as amended from time to time, on the Closing Date and each
monthly anniversary thereof until the beginning of the Principal Amortization
Period; (iv) furnishing reports on the foregoing matters in a timely manner as
reasonably requested by the Sponsor or the Trustee; and (v) formulating the
Credit and Collection Policies in consultation with the Servicer, from time to
time.
(b) The [Master Administrator] shall not sell, assign (by operation of law
or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse
Claim upon or written respect to, any Auto Loan (or any right to receive income
in respect thereof), or the Collection Account.
(c) The [Master Administrator] covenants and agrees to enforce the Sale
Agreements, the Assignments and the Insurance Policies in accordance with their
respective terms for the benefit of the Trust and the Certificateholders as
agent for the Trust and may xxx to enforce or collect upon such Sale Agreements,
Assignments, and Insurance Policies as agent for the Trust. If, however, in any
enforcement suit or legal proceeding it is held that the [Master Administrator]
may not enforce a Sale Agreement or the related Assignment or Insurance Policy
on the grounds that it is not a real party in interest, the Trustee, on behalf
of the Trust, shall take such steps as the [Master Administrator] deems
necessary to assign to the [Master Administrator] the Sale Agreement, the
Assignment, or the Insurance Policy solely for the purpose of permitting the
[Master Administrator] to enforce the Sale Agreement, Assignment or the
Insurance Policy. The Trustee, at the request of an Authorized Officer of the
[Master Administrator], shall furnish the [Master Administrator] with any
limited powers of attorney or other documents prepared by the [Master
Administrator] necessary or appropriate to enable the [Master Administrator] to
carry out such duties.
SECTION 5.04. Representations and Warranties of the [Master Administrator].
The [Master Administrator] represents and warrants to the Sponsor, the [Master
Servicer], the Servicer and the Trustee as follows, as of the date hereof:
50
(a) The [Master Administrator] is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation and
is duly qualified to do business, and is in good standing in every jurisdiction
in which the nature of its business requires it to be so qualified;
(b) The [Master Administrator] has the power and authority to execute,
deliver and perform this Agreement and the transactions contemplated hereby;
(c) The execution, delivery and performance by the [Master Administrator]
of this Agreement, and all other agreements, instruments and documents which may
be delivered by it pursuant hereto, and the transactions contemplated thereby,
(i) have been duly authorized by all necessary corporate or other action, on the
part of the [Master Administrator], (ii) do not contravene or cause the [Master
Administrator] to be in default under (A) its charter or by-laws, (B) any
contractual restriction with respect to any Debt of the [Master Administrator]
or contained in any indenture, loan or credit agreement, lease, mortgage,
security agreement, bond, note, or other agreement or instrument binding on or
affecting it or its property or (C) any law, rule, regulation, order, writ,
judgment, award, injunction or decree applicable to or binding on or affecting
it or its property, and (iii) do not result in or require the creation of any
Adverse Claim upon or with respect to any of its properties;
(d) This Agreement has been duly executed and delivered on behalf of the
[Master Administrator];
(e) No consent of, or other action by, and no notice to or filing with, any
Governmental Authority or any other party is required for the due execution,
delivery and performance by the [Master Administrator] of this Agreement or any
other agreement, document or instrument to be delivered hereunder;
(f) This Agreement is the legal, valid and binding obligation of the
[Master Administrator] enforceable against the [Master Administrator] in
accordance with its terms except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally, and by general
principles of equity (regardless of whether such enforcement is consideration in
a proceeding in law or in equity); and
(g) There is no pending or threatened action, suit or proceeding, nor any
injunction, writ, restraining order or other order of a material nature against
or affecting the [Master Administrator], its officers or directors, or the
property of the [Master Administrator], in any court or tribunal, or before any
arbitrator of any kind or before or by any Governmental Authority (i) asserting
the invalidity of this Agreement or any document to be delivered by the [Master
Administrator] hereunder or
51
(ii) seeking any determination or ruling that might materially and adversely
affect (A) the performance by the [Master Administrator] of its obligations
under this Agreement, or (B) the validity or enforceability of this Agreement or
any document to be delivered by the [Master Administrator] hereunder or (iii)
which is inconsistent with the due consummation of the transactions contemplated
by this Agreement.
SECTION 5.05. Monthly Administrator Fee; Administrator Expenses. As
compensation for its services hereunder, the Trustee shall remit to the [Master
Administrator] the Monthly Administrator Fee in accordance with the provisions
of Section 7.04(a) and the Servicer shall remit to the [Master Administrator]
the sums specified in Section 4.04(a)(v)(B). The [Master Administrator] shall be
required to pay for all expenses incurred by the [Master Administrator] in
connection with its activities hereunder (including any payments to accountants,
counsel, Subcontractors, or any other Person) and shall not be entitled to any
payment or reimbursement therefor.
SECTION 5.06. [Master Administrator] Not to Resign. The [Master
Administrator] shall not resign from the obligations and duties hereby imposed
on it except upon determination that (a) the performance of its duties hereunder
has become impermissible under applicable law and (b) there is no reasonable
action which the [Master Administrator] could take to make the performance of
its duties hereunder permissible under applicable law. Any such determination
permitting the resignation of the [Master Administrator] shall be evidenced as
to clause (a) above by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation shall become effective until a successor to the
[Master Administrator] shall have assumed the responsibilities and obligations
of the [Master Administrator] in accordance with Section 5.08.
SECTION 5.07. Events of Administrator Termination. If any of the following
events (each, an "Event of Administrator Termination") shall occur and be
continuing:
(a) Any failure by the [Master Administrator] to make any payment or
deposit required to be made hereunder and the continuance of such failure for a
period of five Business Days after the date upon which written notice of such
failure shall have been given to the [Master Administrator] by the Trustee,
except, in the case of a payment or deposit to be made on the Deposit Date
immediately preceding a Distribution Date, no later than such Distribution Date;
or
(b) Failure on the part of the [Master Administrator] to observe or perform
any term, covenant or agreement in this Agreement which materially affects the
rights of the Certificateholders and which continues unremedied for five
Business Days after the date on which written notice of such failure, requiring
the
52
same to be remedied shall have been given to the [Master Administrator] by the
Trustee; or
(c) Any proceeding shall be instituted against the [Master Administrator]
(or, if the [Master Administrator] is actively contesting the merits thereof,
such proceeding is not dismissed within 90 days) seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or any of its
Debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
(d) The commencement by the [Master Administrator] of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the [Master Administrator] in an
involuntary case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the [Master
Administrator] or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its Debts generally as they become due, or the taking of
corporate action by the [Master Administrator] in furtherance of any such
action; or
(e) There is a material breach of any of the representations and warranties
of the [Master Administrator] set forth in Section 5.04;
then, and in any such event, the Trustee may by delivery to the [Master
Administrator] of a written notice specifying the occurrence of any of the
foregoing events terminate the responsibilities of the [Master Administrator]
hereunder, without demand, protest or further notice of any kind, all of which
are hereby waived by the [Master Administrator]; provided, that, in the event
any of the events described in subsections (c) or (d) shall have occurred,
termination of the duties and responsibilities of the [Master Administrator]
shall automatically occur, without
53
demand, protest, or further notice of any kind, all of which are expressly
waived by the [Master Administrator] (such termination being herein called an
"Administrator Transfer"). The Trustee shall simultaneously with any declaration
of any Event of Administrator Termination, give notice thereof to the Rating
Agency, the [Master Administrator], the [Master Servicer], the Servicer and the
Trustee.
SECTION 5.08. Appointment of the Successor Master Administrator. (a) Upon
termination of the [Master Administrator]'s responsibilities under this
Agreement pursuant to Section 5.06 or Section 5.07, the Trustee shall
immediately assume all of the [Master Administrator]'s responsibilities, duties
and obligations as [Master Administrator]. If the Trustee is unable, or
unwilling to act as the successor to the [Master Administrator], the Trustee may
appoint a successor to the [Master Administrator] acceptable to the Rating
Agency (a "Successor [Master Administrator]"), provided, that the Trustee shall
be the successor to the [Master Administrator] until such Successor [Master
Administrator] is appointed. Such Successor [Master Administrator] shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the [Master Administrator] under this Agreement; provided further, that such
Successor [Master Administrator] and the Trustee shall have no responsibility
for any actions of the [Master Administrator] prior to the date of the
appointment of such Successor [Master Administrator] as [Master Administrator].
Prior to the appointment of such Successor [Master Administrator], the Trustee
shall be authorized and empowered to execute and deliver, on behalf of the
[Master Administrator], as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do any and all acts or things necessary or
appropriate to effect the purposes of such notice of termination, perform the
duties of the [Master Administrator] hereunder. The standard of care,
representations and warranties, covenants, liabilities, rights of
indemnification, and all other rights and obligations of the Trustee under this
Agreement shall also be applicable to the Trustee in its capacity hereunder. The
Trustee may petition a court of competent jurisdiction to appoint a Successor
[Master Administrator] if no Successor [Master Administrator] has been appointed
within 60 days of the removal of the [Master Administrator].
(b) Any successor of the [Master Administrator] appointed hereunder
(including the Trustee as the Successor [Master Administrator] during such time
as it functions as the Successor [Master Administrator]) shall be entitled to
compensation (including the estimated costs of such services and a reasonable
profit). Such compensation will be payable to the successor to the [Master
Administrator] in the manner provided in Section 7.04(a). The amount of such
compensation may result in an increase or decrease in the Monthly Administrator
Fee.
54
(c) The outgoing [Master Administrator], the Trustee and the Successor
[Master Administrator] shall take such action, consistent with this Agreement,
as shall be necessary to effectuate any such succession, including, without
limitation, the express assumption by such Successor [Master Administrator] of
the duties and obligations of the outgoing [Master Administrator] hereunder.
(d) Upon appointment, any Successor [Master Administrator] shall be
successor in all respects to the outgoing [Master Administrator] this Agreement
and the transactions set forth or provided for herein and shall be subject to
all responsibilities, duties and liabilities relating thereto placed upon the
[Master Administrator] by the terms and provisions hereof (subject to the same
limitations as are contained in this Section 5.08 with respect to a succession
to the outgoing [Master Administrator] by the Trustee).
SECTION 5.09. Annual Reports; Annual Statement as to Compliance. (a) The
[Master Administrator] shall deliver to the Trustee and the Rating Agency as
soon as available, but in any event within 120 days after the end of each of its
fiscal years, a consolidated and consolidating balance sheet of it and its
Subsidiaries, if any, as at such last day of the fiscal year, a consolidated and
consolidating statements of income and retained earnings and statements of cash
flow, for each such fiscal year, each prepared in accordance with GAAP, in
reasonable detail, and as to the consolidated statements, certified without
qualification by an Independent Public Accountant, who may also render other
services to the [Master Administrator] or its Affiliates or certified, as to the
consolidating statements by the chief financial officer of the [Master
Administrator], as fairly presenting the financial position and the results of
operations of the [Master Administrator] as at and for the year ending on its
date and as having been prepared in accordance with GAAP.
(b) The [Master Administrator] shall, and shall cause any Subcontractor
hereunder having any responsibilities pertaining to the distribution of funds
to, deliver to the Trustee and the Rating Agency on or before __________ of each
year, beginning with _________, 199_, an Officer's Certificate stating, as to
each signer thereof, that (a) a review of the activities of the [Master
Administrator] or Subcontractor, as the case may be, during the preceding
calendar year and of performance under this Agreement has been made under such
officer's supervision and (b) to the best of such officer's knowledge, based on
such review, the [Master Administrator] or Subcontractor, as the case may be,
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 and remedies therefor being pursued.
(c) The [Master Administrator] shall promptly (but in any event within five
Business Days) notify the Trustee and the
55
Rating Agency upon receiving actual knowledge of any event which constitutes or
an Event of Default, an Event of Master Servicing Termination, an Event of
Servicing Termination, an Event of Administrator Termination or would constitute
an Event of Default, an Event of Master Servicing Termination, an Event of
Servicing Termination or an Event of Administrator Termination but for the
requirement that notice be given or time elapse or both.
SECTION 5.10. Other Data. In addition to the statements and reports
expressly required to be furnished by the [Master Administrator] hereunder, the
[Master Administrator] shall, on request of the Trustee or the Rating Agency,
furnish such reasonably pertinent underlying data as can be generated by the
[Master Administrator]'s existing data processing systems without, in the
opinion of the [Master Administrator], undue modification or expense.
SECTION 5.11. Reports of the [Master Administrator]. On each Determination
Date immediately preceding a Distribution Date, the [Master Administrator] shall
furnish to the Trustee an Officer's Certificate, substantially in the form
attached hereto as Exhibit G (the "[Master Administrator]'s Report"), which
shall include the following information with respect to the related Distribution
Date (which may be substantially in the form of a Form 10-Q filed with the
Securities and Exchange Commission for such period):
(i) the Investor Certificate Principal Balance as of the end of
the second preceding Due Period (after giving effect to the disbursements
of principal, if any, made on the immediately preceding Distribution Date);
(ii) the Pool Factor with respect to the beginning of the Due
Period;
(iii) the Pool Factor with respect to the ending of the Due
Period;
(iv) the amount (each to be separately set forth) of Monthly
Servicing Fees paid to the [Master Servicer], and the Monthly Subrogation
Amounts and the Monthly Administrator Fees paid to the [Master
Administrator];
(v) the amount of Available Funds with respect to the related Due
Period;
(vi) the amount of the aggregate distribution to be made on such
Distribution Date which constitutes interest on the Investor Certificates
at the Certificate Rate, including any Shortfall so allocable;
(vii) the amount of the aggregate distribution to be made on such
Distribution Date which constitutes payments in
56
reduction of principal with respect to the Investor Certificates;
(viii) the Investor Certificate Principal Balance as of the end
of the immediately preceding Due Period (after giving effect to the
disbursements in reduction of principal on such Distribution Date);
(ix) the Originator Certificate Principal Balance as of the end
of the second preceding Due Period (after giving effect to the
disbursements in reduction of principal, if any, on the immediately
preceding Distribution Date);
(x) the amount of the aggregate distribution to be made on such
Distribution Date which constitutes interest on the Originator Certificate
at the Certificate Rate;
(xi) the amount of the aggregate distribution to be made on such
Distribution Date which constitutes a reduction of principal with respect
to the Originator Certificate;
(xii) the Originator Certificate Principal Balance as of the end
of the immediately preceding Due Period (after giving effect to the
payments in reduction of principal on such Distribution Date);
(xiii) the Available Subordination Amount;
(xiv) the Maximum Subordination Amount;
(xv) the Cumulative Subordination Payments;
(xvi) the amount on deposit in the Cash Reserve Account and
available for deposit to the Collection Account for such Distribution Date;
(xviii) the amount to be withdrawn from or to be deposited to the
Cash Reserve Account with respect to such Distribution Date; and
(xix) the Required Cash Reserve Amount and the Available Cash
Reserve Amount (assuming all withdrawals or deposits to be made with
respect to the current Distribution Date are made).
Each such certificate will include a certification that the information
contained in such certificate is accurate and that no Event of Administrator
Termination, or event that with notice or lapse of time or both would become an
Event of Administrator Termination, has occurred, or if an Event of
Administrator Termination or such event has occurred and is continuing,
specifying the Event of Administrator Termination or such event and its status.]
57
ARTICLE VI
THE CERTIFICATES
SECTION 6.01. The Certificates. (a) The Investor Certificates shall be
substantially in the form of Exhibit H and the Originator Certificate shall be
substantially in the form of Exhibit I. The Certificates shall be issuable in
denominations of $1,000 of Initial Principal Amount or integral multiples
thereof (except that one Certificate may be issued in a denomination of less
than $1,000).
(b) The Investor Certificates, upon original issuance, shall be issued in
the form of one or more typewritten Certificates representing the Certificates,
to be delivered to the Depository by, or on behalf of, the Sponsor (the
"Book-Entry Certificates"). The Investor Certificates shall initially be
registered on the Certificate Register in the name of Cede & Co., the nominee of
the Depository. No Certificateholder will receive a definitive certificate
representing such Certificateholder's interest in the Investor Certificates,
except as provided in Section 6.01(e). Unless and until definitive, fully
registered Investor Certificates (the "Definitive Certificates") have been
issued to Certificateholders pursuant to Section 6.01(e):
(i) the provision of this Section 6.01(b) shall be in full force and
effect with respect to the Investor Certificates;
(ii) the Sponsor, the [Master Administrator], the Paying Agent, the
Certificate Registrar and Transfer Agent and the Trustee may deal with the
Depository for all purposes, including the making of distributions on the
Investor Certificates as the authorized representatives of the respective
Certificateholders;
(iii) to the extent that the provisions of this Section 6.01 conflict
with any other provisions of this Agreement, the provisions of this Section
6.01 shall control; and
(iv) the rights of Certificateholders shall be exercised only through
the Depository and the applicable Depository Participants and shall be
limited to those established by law and agreements between such
Certificateholders and the Depository and/or the Depository Participants.
Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 6.01(e), the Depository will
make book-entry transfers among the Depository Participants and receive and
transmit distributions of
58
principal and interest on the Investor Certificates to such Depository
Participants.
(c) For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Investor Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
Investor Certificates, such direction or consent may be given by Investor
Certificateholders (acting through Depository and the Depository Participants)
owning Investor Certificates evidencing the requisite percentage of principal
amount of Investor Certificates.
(d) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificateholders pursuant to Section 6.01(e), the Trustee
shall give all such notices and communications specified herein to be given to
holders of the Investor Certificates to the Depository for distribution to the
Certificateholders.
(e) If (i) (A) the [Master Administrator] advises the Trustee in writing
that the Depository is no longer willing or able to discharge properly its
responsibilities, and (B) the [Master Administrator] is unable to locate a
qualified successor, (ii) the Sponsor, at its option, advises the Trustee in
writing that it elects to terminate the book-entry system through the Depository
or (iii) after the occurrence of an Event of Administrator Termination, Investor
Certificateholders with an aggregate Percentage of 50% advise the Trustee and
the applicable Depository through the applicable Depository Participants in
writing that the continuation of a book-entry system through the applicable
Depository is no longer in the best interests of the Certificateholders, the
Trustee shall notify all Certificateholders through the applicable Depository
Participants, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificateholders requesting the same. Upon
surrender to the Trustee of the Investor Certificates by the applicable
Depository, accompanied by registration instructions from the applicable
Depository for registration, the Trustee shall cause the Definitive Certificates
to be issued on behalf of the Trust. Neither the Sponsor 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 all references herein to obligations imposed
upon or to be performed by the applicable Depository shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with respect
to such Definitive Certificates, and the Trustee shall recognize the
Certificateholders of the Definitive Certificates as Certificateholders
hereunder.
SECTION 6.02. Authentication of Certificates. (a) The Trustee shall execute
on behalf of the Trust, authenticate and
59
deliver the Originator Certificate to the Originator on the Closing Date.
Subject to the terms of Section 6.01(b) and Section 6.02(b), on the Issuance
Date, the Trustee shall authenticate and deliver the Investor Certificates, to
or upon the written order of the Sponsor to the underwriters, for the sale of
the Book-Entry Certificates evidenced by such Investor Certificates in an
aggregate principal amount equal to the Initial Principal Amount to or upon the
order of the Sponsor against payment to the Sponsor of the purchase price
therefor. Upon the receipt of such payment, the Investor Certificates shall be
fully paid and nonassessable.
(b) Upon satisfaction of the conditions set forth in clauses (i) through
(v) below on or before the Issuance Date, the Trustee will execute on behalf of
the Trust, authenticate and deliver the Investor Certificates and a newly issued
Originator Certificate. In connection with the issuance of the Investor
Certificates, the Originator will surrender the Originator Certificate to the
Trustee in exchange for a newly issued Originator Certificate. The following
conditions must be satisfied on or prior to the Issuance Date:
(i) on or before the fifth Business Day prior to the Issuance
Date, the Sponsor and the [Master Administrator] shall execute and deliver
to the Trustee, a notice (the "Issuance Notice") specifying (A) the
Certificate Rate, (B) the Initial Principal Amount, (C) the Expected Final
Payment Date and (D) the day on which the Investor Certificates are to be
authenticated and delivered by the Trustee;
(ii) the Originator shall have surrendered the original
Originator Certificate delivered to the Trustee;
(iii) the Rating Agency shall have indicated in writing that it
has assigned the Investor Certificates a rating of at least __;
(iv) such issuance will not result in an Event of Default and the
Sponsor shall have delivered to the Trustee an Officer's Certificate, dated
the Issuance Date to the effect that (A) the Rating Agency has not reduced
or withdrawn the rating of the Investor Certificates since the date of its
rating letter and (B) there is no Event of Default which has occurred and
is continuing as of the Issuance Date and the Sponsor reasonably believes
that such issuance is not reasonably expected to result in an Event of
Default at any time in the future;
(v) the Trustee shall have received an Opinion of Counsel (who
may be counsel to the Sponsor and the [Master Administrator]) with respect
to the Intended Tax Characterization; and
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(vi) the parties hereto shall have executed an Issuance
Supplement dated as of the Issuance Date substantially in the form of
Exhibit K, which shall specify certain relevant terms with respect to the
Investor Certificates, including, without limitation: (A) the manner of
determining when a Distribution Date shall occur, (B) the Expected Final
Payment Date, (C) the Initial Principal Amount, (D) the Certificate Rate,
(E) the Investor's Share, (F) the aggregate Principal Balance of the Auto
Loans to be used in the computation of the Maximum Subordination Amount,
(G) the Required Cash Reserve Amount, (H) the Originator Certificate
Principal Balance, (I) the Originator's Share, (G) the representations and
warranties referred to in Section 3.02(b)(ii) and (H) the List of Auto
Loans as of such Issuance Date.
(c) Subject to the provisions of Section 6.02(b), each Certificate shall be
authenticated by the Trustee by the manual signature of a duly authorized
signatory. Certificates bearing the signatures of individuals who were at the
time the proper officers or authorized signatories of the Trustee shall bind the
Trust, notwithstanding that such individuals or any of them have ceased to hold
such offices or positions prior to the delivery of such Certificates or did not
hold such offices or positions at the date of such Certificates. All
Certificates shall be dated the date of their authentication. The authentication
by the Trustee upon any Certificate shall be conclusive evidence, and the only
evidence, that the Certificate so authenticated has been duly authenticated and
delivered hereunder and is entitled to the benefit of this Agreement. The
authentication certification of the Trustee may be executed by any Person
authorized by the Trustee, but it shall not be necessary that the same
authorized Person sign the authentication certificates on all of the
Certificates.
SECTION 6.03. Registration of Transfer and Exchange of Certificates. (a)
The Trustee shall maintain, or cause to be maintained by a certificate registrar
and transfer agent (the "Certificate Registrar and Transfer Agent"), in
accordance with Section 6.03(b) a certificate register in which the Trustee
shall provide or cause to be provided for the registration of Investor
Certificates and transfers and exchanges of Investor Certificates as herein
provided (the "Certificate Register"). The Trustee is hereby initially appointed
the Certificate Registrar and Transfer Agent for the purpose of registering
Investor Certificates and transfers and exchanges of Investor Certificates as
provided herein. All Investor Certificates shall be so registered.
(b) The Certificate Registrar and Transfer Agent will maintain at its
expense in the City of __________ an office or offices or an agency or agencies
where Investor Certificates may be surrendered for registration of transfer or
exchange. The Certificate Registrar and Transfer Agent hereby appoints its
office at ______________________________________________________ for such
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purpose. Subject to the provisions of Section 6.01(b), at the option of an
Investor Certificateholder, Investor Certificates may be exchanged for other
Investor Certificates of authorized denominations, upon surrender of the
Investor Certificates to be exchanged at such office. Upon surrender for
registration or transfer of any Investor Certificate at such office, the Trustee
shall, on behalf of the Trust, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Investor Certificates of a
like aggregate Percentage and dated the date of authentication by the Trustee.
Whenever any Investor Certificates are so surrendered for exchange, the Trustee
shall execute, on behalf of the Trust, authenticate and deliver the Investor
Certificates which the Certificateholder making the exchange is entitled to
receive. Every certificate presented or surrendered for transfer or exchange
shall be duly endorsed by, or be accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder thereof or his or her attorney duly authorized in writing.
(c) No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee or Certificate Registrar and Transfer Agent may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates. All Certificates surrendered for transfer and exchange shall be
disposed of in a manner approved by the Trustee.
(d) Except as provided in Section 6.02, in no event shall the Originator
Certificate or any interest therein be sold hereunder, in whole or in part,
unless the Originator shall have consented in writing to such transfer and
unless the Trustee shall have received (i) confirmation in writing from the
Rating Agency that such transfer will not result in the reduction or withdrawal
of its then-existing rating of the Investor Certificates, (ii) an Opinion of
Counsel that such transfer does not adversely affect the conclusions reached in
the federal income tax opinion dated the Issuance Date and (iii) an agreement
supplemental hereto executed and delivered to the Trustee, in form and substance
satisfactory to the Trustee, in which the transferee of the Originator
Certificate expressly assumes the obligations of the Originator hereunder
provided, however, that this Section 6.03(d) shall not prevent the Originator
from pledging its interest in the Originator Certificate in connection with any
interim financing.
SECTION 6.04 Appointment of Paying Agent. The Paying Agent shall make
distributions to Investor Certificateholders from the Collection Account
pursuant to Section 7.04 and shall report the amounts of such distributions to
the Trustee. Any Paying Agent shall have the revocable power to withdraw funds
from the Collection Account for the purpose of making the distributions referred
to above. The Trustee may revoke such power and remove the Paying Agent if the
Trustee determines in its sole discretion
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that the Paying Agent shall have failed to perform is obligations under this
Agreement in any material respect. The Paying Agent shall initially be _____.
_____ shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Trustee. In the event that _____ shall no longer be the Paying Agent, the
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The Trust shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Trustee to execute and deliver to the
Trustee an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Investor Certificateholders in trust for the benefit of the
Investor Certificateholders entitled thereto until such sums shall be paid to
such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Trustee.
SECTION 6.05. Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Definitive Certificate is surrendered to the Certificate Registrar and
Transfer Agent, or the Certificate Registrar and Transfer Agent receives
evidence to its satisfaction of the destruction, loss or theft of any Definitive
Certificate, and (b) there is delivered to the Certificate Registrar and
Transfer Agent and the Trustee such security or indemnity as may be required by
each to save it harmless, then in the absence of notice to the Certificate
Registrar and Transfer Agent or the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall on behalf of the Trust,
execute, authenticate and deliver, in exchange for and in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and percentage. Upon the issuance of any new Certificate under this
Section 6.05, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expense connected therewith. Any duplicate Certificate issued pursuant
to this Section 6.05 shall constitute complete and indefeasible evidence of
ownership of the Fractional Undivided Interest represented by the original
Certificate, as if originally issued, whether or not the destroyed, lost or
stolen Certificate shall be found at any time.
SECTION 6.06. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Sponsor, the [Master
Administrator], the Paying Agent, the Trustee, and the Certificate Registrar and
Transfer Agent may treat the Person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving remittances
pursuant to Section 7.04 and for all other purposes whatsoever, and none of the
Sponsor, the [Master Administrator], the Paying Agent, the Trustee, the
Certificate Registrar and Transfer Agent nor any agent of the Sponsor, the
[Master Administrator], the Paying Agent, the
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Trustee, or the Certificate Registrar and Transfer Agent shall be affected by
notice to the contrary. Any action taken by the Trustee pursuant to this
Agreement upon the request or authority or consent of any Person who at the time
of making such request or giving such authority or consent is a
Certificateholder shall be conclusive and binding upon all future holders of the
same Certificate and upon Certificates issued in exchange therefor or in place
thereof.
SECTION 6.07. Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar and Transfer Agent will furnish to the Trustee, the
Paying Agent, the Sponsor, and the [Master Administrator] promptly upon request
therefor from any of them in writing, a list of the names and addresses of the
Certificateholders as of the most recent Record Date. Upon written application
by Investor Certificateholders with an aggregate Percentage of 10% or more
(hereinafter referred to as "Applicants") to the Trustee stating that the
Applicants desire to communicate with other Investor Certificateholders with
respect to their rights under this Agreement or under the Investor Certificates
accompanied by a copy of the communication which such Applicants propose to
transmit, the Trustee shall, within five Business Days after the receipt of such
application, afford such Applicants access during normal business hours to the
most recent list of Investor Certificateholders held by the Trustee. If such
list is as of a date more than 90 days prior to the date of receipt of such
Applicants' request, the Trustee shall promptly request from the Certificate
Registrar and Transfer Agent a current list as provided above, and shall afford
such Applicants access to such list promptly upon receipt. Every
Certificateholder, by receiving and holding an Investor Certificate, agrees with
the Certificate Registrar and Transfer Agent and the Trustee that none of the
Sponsor, the [Master Administrator], the Paying Agent, the Certificate Registrar
and Transfer Agent nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was obtained.
SECTION 6.08. Acts of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Investor Certificateholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Investor Certificateholders in Person or by an agent duly
appointed in writing; and except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and where required, to the Sponsor and the [Master
Administrator]. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and (subject to Section 10.01) conclusive in favor of the Trustee, the Sponsor,
the
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[Master Administrator], the [Master Servicer] and the Servicer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Investor Certificateholders
of any such instrument or writing may be provided in any reasonable manner which
the Trustee deems sufficient.
(c) The ownership of Investor Certificates shall be proved by the
Certificate Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Investor Certificateholder shall bind every holder of every
Investor Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done by the Trustee, the Sponsor, the [Master Administrator], the [Master
Servicer] or the Servicer in reliance thereon, whether or not notation of such
action is made upon such Certificate.
(e) The Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
SECTION 6.09 Notices to Depository. Whenever any notice, report or other
communication is required to be given to Certificateholders with respect to
which Book-Entry Certificates have been issued, unless and until Definitive
Certificates shall have been issued to the related Investor Certificateholders,
the Trustee shall give all such notices, reports and communications to the
Depository.
ARTICLE VII
DEPOSITS AND DISTRIBUTIONS
SECTION 7.01. Rights of Certificateholders. (a) The Investor Certificates
and the Originator Certificate shall represent fractional undivided interests in
the Trust, consisting of the right to receive, to the extent necessary to make
the required payments with respect to the Investor Certificates at the times and
in the amounts specified in this Agreement, in, to and under Trust Assets (the
"Certificateholders' Interest").
(b) Amounts held by the Trustee for future distribution to the
Certificateholders, including, without limitation, in the Collection Account and
the Cash Reserve Account, shall not be distributed except in accordance with the
terms of this Agreement. The Originator as holder of the Originator Certificate
is deemed to have granted a security interest in rights to receive monies from
the Collection Account and the Cash Reserve Account to Investor
Certificateholders to secure the rights of the Investor
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Certificateholders to receive distributions in priority over the Originator
Certificate as provided herein. Whenever requested by the Trustee, and without
prejudice to the intent of the parties that the Collection Account and the Cash
Reserve Account be held exclusively in the name of the Trustee for the benefit
of the Trust, the Sponsor or the Originator Certificate, or both, will make,
execute and deliver or cause to be made, executed and delivered any and all
further and other notices instruments and assurances, and will furnish such
information and will make such filings with Governmental Authorities, including
but not limited to financing statements on Form UCC-1, as may be necessary or
appropriate to carry out the intention or to facilitate the performance of the
terms of this Agreement, including without limitation, the foregoing
subordination provisions, to ensure the perfection of the security interest of
the Investor Certificateholders in the Cash Reserve Account, or otherwise to
protect and preserve the rights and remedies hereunder of the Investor
Certificateholders. Amounts properly distributed to the holder of the Originator
Certificate pursuant to Section 7.04 shall be deemed released from the security
interest established by this Section 7.01, and the holder of the Originator
Certificate will not in any event be required to refund any such distributed
amounts.
SECTION 7.02. Establishment and Administration of the Collection Account.
(a) The Trustee, shall cause to be established and maintained at all times the
Collection Account on behalf of and in the name of the Trustee for the benefit
of the Trust. The Collection Account shall be an Eligible Account initially
established at the office of the Trustee, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Trust. The Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Collection Account and in all proceeds thereof.
The Collection Account shall be under the sole dominion and control of the
Trustee for the benefit of the Certificateholders as their interests appear in
the Trust. If, at any time, the Collection Account ceases to be an Eligible
Account, the [Master Administrator], on behalf of the Trustee, shall within 20
Business Days establish a new Collection Account which shall be an Eligible
Account, transfer any cash and/or any investments to such new Collection Account
and from the date such new Collection Account is established, it shall be the
"Collection Account".
(b) The Servicer shall deposit into the Collection Account, as soon as
practicable, but in no event later than the close of business on the fifth
Business Day after the date of receipt thereof (i) all amounts representing
Payments collected by the Servicer, (ii) all Recoveries on Defaulted Auto Loans
received by the Servicer during such Due Period and (iii) the Repurchase Price
of Auto Loans repurchased by the Sponsor or an Originator or purchased by the
[Master Servicer] pursuant to Section 3.03.
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(c) The [Master Administrator] shall deposit into the Collection Account,
as soon as practicable, but in no event later than the close of business on the
fifth Business Day after receipt thereof the Repurchase Price of Auto Loans
repurchased by an Originator pursuant to the related Sale Agreement and Section
3.03.
(d) The [Master Administrator] shall direct the Trustee in writing to
invest, and the Trustee shall so invest, the amounts in the Collection Account
in specified Eligible Investments that mature not later than the next succeeding
Deposit Date; provided, that any Eligible Investment as to which the Trustee is
the obligor in its individual capacity may mature not later than such
Distribution Date; and provided further, that all Eligible Investments shall be
held to maturity.
(e) The [Master Administrator] shall instruct the Trustee to make
withdrawals and payments from the Collection Account for the purposes of
carrying out the [Master Administrator]'s or the Trustee's duties hereunder.
SECTION 7.03. Establishment and Administration of the Cash Reserve Account.
(a) On or prior to the Issuance Date, the Trustee shall cause to be established
and maintained at all times the Cash Reserve Account on behalf of and in the
name of the Trustee for the benefit of the Trust. The Cash Reserve Account shall
be an Eligible Account initially established at the offices of the Trustee,
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Trust. The Trustee shall possess all right, title
and interest in all funds on deposit from time to time in the Cash Reserve
Account and in all proceeds thereof. The Cash Reserve Account shall be under the
sole dominion and control of the Trustee for the benefit of the Trust. If, at
any time, the Cash Reserve Account ceases to be an Eligible Account, the [Master
Administrator] on behalf of the Trustee shall within 20 Business Days establish
a new Cash Reserve Account which shall be an Eligible Account, transfer any cash
and/or any investments to such new Cash Reserve Account and from the date such
new Cash Reserve Account is established, it shall be the "Cash Reserve Account".
(b) The [Master Administrator] shall direct the Trustee in writing to
invest, and the Trustee shall so invest, the amounts in the Cash Reserve Account
in specified Eligible Investments that mature not later than the Deposit Date
preceding the next Distribution Date; provided that any Eligible Investment as
to which the Trustee is the obligor in its individual capacity may mature not
later than such Distribution Date; and provided further, that all Eligible
Investments shall be held to maturity.
(c) If on any Distribution Date the amounts disbursed pursuant to Sections
7.04(a), 7.04(c) and 7.04(d) are insufficient to pay the amounts required to be
disbursed pursuant to Sections 7.04(a)(i) and (ii), 7.04(c)(i) and
7.04(d)(i)-(ii), the Trustee
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shall withdraw from the Cash Reserve Account and deposit in the Collection
Account the least of (i) the Available Cash Reserve Amount, (ii) the Available
Subordination Amount and (iii) the amount necessary to make up such deficiency
and shall disburse such amounts in accordance with Section 7.04; provided,
however, that in no event will any amount representing net investment earnings
on amounts held in the Cash Reserve Account be remitted or otherwise used in any
manner for the benefit of the Certificateholders.
(d) If the Available Cash Reserve Amount, after giving effect to the
distributions to the Investor Certificateholders on any Distribution Date, is
greater than the Required Cash Reserve Amount on such Distribution Date, the
amount of such excess shall be distributed to the Servicer. Amounts properly
distributed to the Servicer pursuant to this Section 7.03(d), either directly
without deposit in the Cash Reserve Account or from amounts in excess of the
Required Cash Reserve Amount, shall be deemed released from the security
interest established by Section 7.01, and the Servicer will not in any event be
required to refund any such distributed amounts.
(e) On the first Distribution Date following the earlier to occur of (i)
the Distribution Date on which the Investor Certificateholders have been paid in
full and (ii) the Available Subordination Amount has been reduced to zero, the
Trustee shall disburse all amounts held in the Cash Reserve Account, if any, to
the Servicer.
(f) The [Master Administrator] shall instruct the Trustee to make
withdrawals and payments from the Cash Reserve Account for the purposes of
carrying out the [Master Administrator]'s or the Trustee's duties hereunder.
SECTION 7.04. Distributions.
(a) On each Monthly Fee Date, the Trustee, at the direction of the [Master
Administrator], shall disburse Available Funds, including the amounts deposited
in the Collection Account from the Cash Reserve Account pursuant to Section
7.03(c) in the following priority (to the extent available) (and, if such date
is also a Distribution Date, in priority to the amounts to be disbursed pursuant
to subsection (b), (c) and (d) below):
(i) to the [Master Servicer] (or the Servicer subject to the
provisions of Section 4.08), the Monthly Servicing Fee plus any accrued but
unpaid Monthly Servicing Fee with respect to any prior month; and
(ii) to the [Master Administrator], the Monthly Subrogation
Amount plus any accrued but unpaid Monthly Subrogation Amount with respect
to any prior month; and
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(iii) to the [Master Administrator], the Monthly Administrator
Fee plus any accrued but unpaid Monthly Administrator Fee with respect to
any prior month.
(b) On each Monthly Fee Date occurring prior to the Issuance Date, the
Trustee, at the direction of the [Master Administrator], shall disburse the
balance of Available Funds (to the extent available after making the
disbursements under Section 7.04(a) owing on such date) to the holder of the
Originator Certificate.
(c) On each Distribution Date occurring during the Interest-Only Period,
the Trustee, at the direction of the [Master Administrator], shall disburse the
balance of Available Funds (to the extent available after making the
disbursements under Section 7.04(a) owing on such date) in the following
priority:
(i) to the Investor Certificateholders, interest in an amount
equal to the lesser of (A) the sum of (1) one-quarter of the Certificate
Rate times the Investor Certificate Principal Balance and (2) any Shortfall
and (B) the sum of the Investor's Share of the Available Distribution
Amount plus the Available Subordination Amount;
(ii) to the holder of the Originator Certificate, in reduction of
the Originator Certificate Principal Balance, an amount equal to the excess
of (A) the Originator Certificate Principal Balance over (B) the
Originator's Share of the aggregate Principal Balance of the Auto Loans
determined as of the end of the immediately preceding Due Period;
(iii) to the holder of the Originator Certificate, interest in an
amount equal to one-quarter of the Certificate Rate times the Originator
Certificate Principal Balance;
(iv) to the Cash Reserve Account, an amount equal to the lesser
of (A) the Aggregate Excess Interest on such Distribution Date and, (B) the
Required Cash Reserve Amount minus the Available Cash Reserve Amount;
(v) to the holder of the Originator Certificate, an amount equal
to the excess, if any, of the Aggregate Excess Interest over the amount
disbursed to the Cash Reserve Account in accordance with the provisions of
7.04(c)(iv); and
(vi) the remainder of funds held in the Collection Account
following the distributions in clauses (i) - (v) above shall be retained in
the Collection Account.
(d) On each Distribution Date occurring during the Principal
Amortization Period, the Trustee, at the direction of the [Master Administrator]
shall disburse the balance of Available
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Funds (to the extent available after making the disbursements under Section
7.04(a) owing on such date) in the following priority:
(i) to the Investor Certificateholders, interest in an amount
equal to the lesser of (A) the sum of (1) one-quarter of the Certificate
Rate times the Investor Certificate Principal Balance and (2) any Shortfall
and (B) the sum of the Investor's Share of the Available Distribution
Amount plus the Available Subordination Amount;
(ii) to the Investor Certificateholders, in reduction of the
Investor Certificate Principal Balance, an amount equal to the lesser of
(A) principal in an amount equal to the excess of (1) the Investor
Certificate Principal Balance over (2) the Investor's Share of the
aggregate Principal Balance of the Auto Loans determined as of the end of
the immediately preceding Due Period and (B) the sum of the balance of the
Investor's Share of the Available Distribution Amount plus the Available
Subordination Amount;
(iii) to the holder of the Originator Certificate, interest in an
amount equal to one-quarter of the Certificate Rate times the Originator
Certificate Principal Balance;
(iv) to the holder of the Originator Certificate, in reduction of
the Originator Certificate Principal Balance, an amount equal to the excess
of (A) the Originator Certificate Principal Balance over (B) the
Originator's Share of the aggregate Principal Balance of the Auto Loans
determined as of the end of the immediately preceding Due Period;
(v) to the Cash Reserve Account, an amount equal to the sum of
the (A) the Required Cash Reserve Amount minus (B) the Available Cash
Reserve Amount;
(vi) to the holder of the Originator Certificate, the balance of
Available Funds minus the Partial Prepayment Amount; and
(vii) the remainder of funds held in the Collection Account
following the distribution in Clauses (i) - (vi) above shall be retained in
the Collection Account.
(e) With respect to each reference in this Section 7.04 as to payments to
Certificateholders, the Trustee shall permit the Paying Agent to disburse such
Funds to the Certificateholders pursuant to Section 6.04.
(f) On the first Distribution Date following the Distribution Date on which
the Investor Certificateholders have been paid in full, all amounts held in the
Collection Account and the Cash Reserve Account, if any, shall be disbursed to
the holder of the Originator Certificate and all interests of the Trust in all
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Auto Loans which have an outstanding balance shall be reconveyed by the Trustee
to, or at the direction of, the Sponsor. Such disbursement and reconveyance
shall constitute the final payment to which the holder of the Originator
Certificate is entitled with respect to its Originator's Interest pursuant to
the terms of this Agreement.
SECTION 7.05. Reports to Certificateholders. On each Distribution Date,
concurrently with the distribution to the Certificateholders, the Trustee shall
furnish, or cause to be furnished by the Paying Agent to the Certificateholders,
a report prepared by the [Master Administrator] substantially in the form of
Exhibit G.
ARTICLE VIII
REMEDIES
SECTION 8.01. Events of Default. "Event of Default", whenever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any Governmental Authority):
(a) Default in the payment to the Investor Certificateholders of any
interest or principal due hereunder in accordance with the provisions of Section
7.04 or Section 11.01 when such payment becomes due and payable and continuance
of such default for a period of three Business Days; or
(b) Default in the performance, or breach, of any covenant or agreement of
the Sponsor in this Agreement (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section 8.01 specifically
dealt with), and continuance of such default or breach for a period of 30 days
after there has been given, by registered or certified mail, to the Sponsor by
the [Master Administrator] or the Trustee, or to the Sponsor, the [Master
Administrator] and the Trustee by the Certificateholders of at least 50% in
aggregate principal amount of the outstanding Investor Certificates a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, or if, in any such
case, the Sponsor shall have consented in writing that any such event shall be
an Event of Default; or
(c) Any proceeding shall be instituted against the Sponsor (or, if the
Sponsor is actively contesting the merits thereof, such proceeding is not
dismissed within 90 days) seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or any of its Debts under any law
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relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or
(d) The commencement by the Sponsor of a voluntary case or proceeding under
any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Sponsor in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Sponsor or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its Debts generally as they
become due, or the taking of corporate action by the Sponsor in furtherance of
any such action; or
(e) Judgments or orders for the payment of money (other than such judgments
or orders in respect of which adequate insurance is maintained for the payment
thereof) against the Sponsor shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of 30 days or more; or
(f) There is a material breach of any of the representations and warranties
of the Sponsor set forth in Section 3.01(a); or
(g) An Event of Master Servicing Termination shall have occurred and the
[Master Administrator] or the Trustee has terminated the servicing
responsibilities of the [Master Servicer] pursuant to Section 4.12; or
(h) An Event of Servicing Termination shall have occurred and the [Master
Administrator] or the Trustee has terminated the servicing responsibilities of
the Servicer pursuant to Section 4.14; or
(i) Either of the [Master Servicer] or the Servicer shall have resigned
pursuant to Section 4.10; or
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(j) An Event of Administrator Termination shall have occurred and the
Trustee has terminated the administrative responsibilities of the [Master
Administrator] pursuant to Section 5.07.
SECTION 8.02. Declaration of Principal Amortization Event. (a) If an Event
of Default occurs under Sections 8.01(a), (c), or (d), and is continuing, the
Trustee, upon a Responsible Officer receiving written notice thereof, shall
promptly declare that a Principal Amortization Event has occurred, without
demand, protest, or notice of any kind all of which are expressly waived by the
Sponsor; provided, that, in the event any of the events described in Sections
8.01 (c) or (d) shall have occurred, an Event of Default shall automatically
occur, without demand, protest, or notice of any kind all of which are expressly
waived by the Sponsor. If an Event of Default occurs and is continuing, other
than under Section 8.01(a), (c), or (d), then and in every such case the Trustee
may at any time in the case of any such other Event of Default, or Investor
Certificateholders of an aggregate Percentage of not less than 50% may instruct
the Trustee to and the Trustee shall, declare that a Principal Amortization
Event has occurred by a notice in writing to the Sponsor. The Trustee shall
simultaneously with any declaration of any Principal Amortization Event, give
notice thereof to the Rating Agency, the [Master Administrator], the [Master
Servicer] and the Servicer.
(c) The Sponsor shall promptly (but in any event within five Business Days)
notify the Trustee upon receiving actual knowledge of any event which
constitutes an Event of Default or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
SECTION 8.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Certificateholders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Agreement or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
The Trustee shall notify the Sponsor, the [Master Administrator], the [Master
Servicer], the Servicer and the Rating Agency of any such action.
SECTION 8.04. Trustee May File Proofs of Claim. (a) In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Sponsor, or any other obligor upon the Investor Certificates, or the
property of the Sponsor, or such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Investor Certificates shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee
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shall have made any demand on the Sponsor for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Investor Certificates or
any amount owing on the Auto Loans or the other Trust Assets and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee and any predecessor Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee and any predecessor Trustee, their agents and counsel) and
of the Certificateholders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Certificateholder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Certificateholders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee and any predecessor Trustee under Section 10.06.
(b) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Certificateholder
any plan or reorganization, agreement, adjustment or composition affecting the
Investor Certificates or the rights of any Certificateholder thereof or
affecting the Auto Loans or the other Trust Assets or to authorize the Trustee
to vote in respect of the claim of any Certificateholder in any such proceeding.
SECTION 8.05. Trustee May Enforce Claims Without Possession of Investor
Certificates. All rights of action and claims under this Agreement, the Investor
Certificates, the Auto Loans or the other Trust Assets may be prosecuted and
enforced by the Trustee without the possession of any of the Investor
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 of an express trust, and any recovery of judgment shall, after
provisions for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor Trustee, their
agents and counsel, be for the ratable benefit of the Certificateholders in
respect of which such judgment has been recovered.
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SECTION 8.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article VIII shall be deposited in the Collection
Account for disbursement in accordance with the provisions of Article VII.
SECTION 8.07. Limitation on Suits. No Investor Certificateholder shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Agreement, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) there is a continuing Event of Default and such Certificateholder has
previously given written notice to the Trustee of a continuing Event of Default;
(b) the Investor Certificateholders of an aggregate Percentage of not less
than 50% shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Investor Certificateholder or Investor Certificateholders have
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee, for 60 days after its receipt of such notice, request and
offer of indemnity, has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Investor Certificateholders of a
majority in aggregate principal amount of the outstanding Investor Certificates;
it being understood and intended that no one or more Investor Certificateholders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Agreement to affect, disturb or prejudice the rights of any
other Certificateholders, or to obtain or to seek to obtain priority or
preference over any other Certificateholders or to enforce any right under this
Agreement, except in the manner herein provided and for the ratable benefit of
all the Certificateholders.
SECTION 8.08. Restoration of Rights and Remedies. If the Trustee or any
Certificateholder has instituted any proceeding to enforce any right or remedy
under this Agreement and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such
Certificateholder, then and in every such case, subject to any determination in
such proceeding, the Sponsor, the Trustee and the Certificateholders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and
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remedies of the Trustee and the Certificateholders shall continue as though no
such proceeding had been instituted.
SECTION 8.09. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Investor Certificates in Section 6.05, no right or remedy herein
conferred upon or reserved to the Trustee or to the Certificateholders is
intended to be exclusive of any other right or remedy and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 8.10. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Certificateholder to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the
Certificateholders may be exercised from time to time, and as often as may be
deemed expedient, as permitted under the terms hereof, by the Trustee or by the
Certificateholders, as the case may be.
SECTION 8.11. Control by Certificateholders. Investor Certificateholders of
an aggregate Percentage of not less than 50% shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, provided,
that (a) such direction shall not be in conflict with any rule of law or with
this Agreement, and (b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 8.12. Waiver of Past Defaults. The Certificateholders of not less
than a majority in aggregate principal amount of the outstanding Investor
Certificates may on behalf of the Certificateholders of all the Investor
Certificates waive any past default hereunder and its consequences, except a
default:
(a) in the payment of the principal of or interest on any Investor
Certificate, or
(b) in respect of a covenant or provision hereof which under Article XI
cannot be modified or amended without the consent of an aggregate Percentage of
[66 2/3%] of the outstanding Investor Certificates affected, or
(c) described under Section 8.01(c) or (d).
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Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Agreement; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 8.13. Undertaking for Costs. All parties to this Agreement agree,
and each Investor Certificateholder by his acceptance of an Investor Certificate
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Agreement, or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and disbursements,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 8.13 shall not apply to any suit instituted by the
Sponsor, to any suit instituted by the Trustee, to any suit instituted by any
Certificateholder or group of Certificateholders holding in the aggregate more
than 10% in principal amount of the outstanding Investor Certificates, or to any
suit instituted by any Certificateholder for the enforcement of the payment of
any principal of or interest on any Investor Certificate.
SECTION 8.14. Waiver of Stay or Extension Laws. The Sponsor covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Agreement; and
the Sponsor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE IX
LIMITATION ON LIABILITY; INDEMNITIES
SECTION 9.01. Liabilities of Obligors and Insurers. No obligation or
liability of any Obligor under any of the Auto Loans or any insurer under any
Insurance Policy is intended to be assumed by the Sponsor, the [Master
Administrator], the [Master Servicer], the Servicer, the Trust, the Trustee or
the Certificateholders under or as a result of this Agreement and the
transactions contemplated hereby and, to the maximum extent permitted and valid
under mandatory provisions of law, the Sponsor, the [Master Administrator], the
[Master Servicer], the Servicer, the Trust, the
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Trustee and the Certificateholders expressly disclaim such assumption.
SECTION 9.02. Limitation on Liability of the Sponsor, the [Master
Servicer], Servicer and the [Master Administrator].
(a) The Sponsor, the [Master Servicer], the Servicer and the [Master
Administrator], shall each be liable in accordance herewith only to the extent
of the obligations specifically imposed by this Agreement.
(b) None of the Sponsor, the [Master Servicer], Servicer, or the [Master
Administrator] nor any of the directors, officers, employees or agents of the
Sponsor, the [Master Servicer], the Servicer, or the [Master Administrator]
shall be under any liability to the Trust or the Certificateholders for any
action taken, or for refraining from the taking of any action, in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Sponsor, the [Master Servicer], the
Servicer, or the [Master Administrator] or any such Person against any breach of
warranties or representations made herein, or against any specific liability
imposed on each such party pursuant to this Agreement or against any liability
which 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 or duties hereunder. The Sponsor, the [Master Servicer], the
Servicer, the [Master Administrator] and any director, officer, employee or
agent of the Sponsor, the [Master Servicer], the Servicer or the [Master
Administrator] may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any appropriate Person respecting
any matters arising hereunder.
SECTION 9.03. Indemnities of the [Master Servicer], the Servicer and the
[Master Administrator].
(a) The [Master Servicer] agrees to indemnify the Trust, the Trustee, the
[Master Administrator] and any of their respective directors, officers,
employees or agents from, and hold them harmless against, any and all costs,
expenses, losses, claims, damages (except for consequential damages) and
liabilities to the extent that such cost, expense, loss, claim, damage or
liability arose out of, or was imposed upon the Trust, the Trustee or the
[Master Administrator] through:
(i) the [Master Servicer]'s acts or omissions in violation of
this Agreement (subject to the servicing standard set forth in Section
4.01(c)); and
(ii) the gross negligence, willful misfeasance or bad faith of
the Servicer in the performance of its duties under this Agreement or by
reason of the Servicer's reckless disregard of its obligations and duties
hereunder;
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except (x) as to clause (ii) for any losses, liability, damages, claims or
expenses arising out of the actions or omissions in the performance of
repossession activities in respect of Defaulted Auto Loans, and (y) as to
clauses (i) and (ii), to the extent the Trustee's or the [Master
Administrator]'s, as the case may be, own bad faith, willful misconduct, or
negligence contributes to the cost, expense, loss, claim, damage or liability.
(b) The Servicer agrees to indemnify the Trust, the Trustee, and any of its
directors, officers, employees or agents and the [Master Administrator], and any
of its directors, officers and employees, from, and hold them harmless against,
any and all losses, liabilities, damages (except for consequential damages),
claims or expenses (including reasonable attorneys' fees of counsel reasonably
acceptable to the Servicer) arising as a result of the Servicer's acts or
omissions (subject to the servicing standard set forth in Section 4.01(c)) in
violation of this Agreement except to the extent the Trustee's or the [Master
Administrator]'s, as the case may be, own bad faith, willful misconduct, or
negligence contributes to the loss, liability, damage, claim or expense.
(c) The [Master Administrator] agrees to indemnify (i) the Trust from, and
hold it harmless against, any and all losses, liabilities, damages, claims or
expenses (including reasonable attorneys' fees of counsel reasonably acceptable
to the [Master Administrator]) arising as a result of the [Master
Administrator]'s acts or omissions (subject to the administration standard set
forth in Section 5.01(b)) in violation of this Agreement and (ii) the Trustee,
its directors, officers, employees or agents from, and hold it harmless against,
any and all losses, liabilities, damages, claims, expenses (including attorneys
fees and disbursements), fines or penalties, or judgments arising out of or in
connection with the performance by the Trustee of its duties hereunder or in
connection with the Trust, or the issuance by the Trust of the Certificates
except to the extent the Trustee's own bad faith, willful misconduct or gross
negligence contributes to the loss, liability, damage, claim or expense.
(d) This Section 9.03 shall survive the termination of this Agreement or
the resignation or removal of the Trustee in respect of rights accrued prior to
such resignation or removal.
ARTICLE X
THE TRUSTEE
SECTION 10.01. Certain Duties. (a) The Trustee undertakes to perform such
duties and 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 (including, without limitation the duties referred to in Section
4.13, 4.15 and 5.08 during the continuance of an Event of Master Servicing
Termination, an Event of Servicing Termination or
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an Event of Administrator Termination resulting in the appointment of the
Trustee as Successor [Master Servicer], Successor Servicer or Successor [Master
Administrator], respectively).
(b) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Agreement.
(c) In case an Event of Default, an Event of Master Servicing Termination
(resulting in the appointment of the Trustee as Successor [Master Servicer]), an
Event of Servicing Termination (resulting in the appointment of the Trustee as
Successor Servicer) or an Event of Administrator Termination (resulting in the
appointment of the Trustee as Successor [Master Administrator]) has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Agreement, and use the same degree of care and skill in their
exercise, as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs, provided, however, that no provision
in this Indenture shall be construed to limit the obligations of the Trustee to
provide notices under Section 10.02.
(d) No provision of this Agreement shall be construed to relieve the
Trustee of any obligation to exercise any of its duties under the Agreement in
any case in which the Trustee has not been offered reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in the exercise of such duty.
(e) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) this Section shall not be construed to limit the effect of
Section 10.01(a) and (b);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
written direction of the Certificateholders of a majority (or such lesser
percentage as may be specified by certain provisions hereunder) in
principal amount of the outstanding Investor Certificates relating to the
time, method and place of conducting any proceeding for
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any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement; and
(iv) no provision of this Agreement shall require the Trustee 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 repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
10.01.
(g) The Trustee shall have no liability in connection with compliance of
the [Master Administrator], the [Master Servicer], the Servicer or the Sponsor
with statutory or regulatory requirements related to the Trust Assets. The
Trustee makes no representations or warranties with respect to the Trust Assets
or the validity or sufficiency of any assignment of the Auto Loans to the
Sponsor or to the Trustee.
SECTION 10.02. Notice of Defaults. The Trustee shall promptly (but in any
event within 10 Business Days) notify the Rating Agency upon a Responsible
Officer obtaining actual knowledge of any event which constitutes an Event of
Default, an Event of Master Servicing Termination, an Event of Servicing
Termination, or an Event of Administrator Termination or would constitute an
Event of Default, an Event of Master Servicing Termination, an Event of
Servicing Termination, or an Event of Administrator Termination but for the
requirement that notice be given or time elapse or both. In addition, the
Trustee shall, within 10 Business Days following a Responsible Officer receiving
actual knowledge of any Event of Default, Event of Master Servicing Termination,
Event of Servicing Termination or Event of Administrator Termination specified
in the immediately preceding sentence, transmit to all Certificateholders, as
their names and addresses appear in the Certificate Register notice of such
event known to the Trustee, unless such default shall have been cured or waived;
provided further, that this Section 10.02 shall not limit the obligations of the
Trustee to provide notices expressly required by this Agreement.
SECTION 10.03. Certain Matters Affecting the Trustee. Subject to the
provisions of Section 10.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
81
genuine and to have been signed or presented by the proper party or parties;
(b) Any request or direction of any Certificateholders, the [Master
Administrator], the Sponsor, the [Master Servicer] or the Servicer mentioned
herein shall be in writing;
(c) Whenever in the performance of its duties hereunder the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate or Opinion of Counsel;
(d) The Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered, or omitted by it hereunder in good
faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement at the request or direction of any of
the Certificateholders pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) Prior to the occurrence of an Event of Default, an Event of Master
Servicing Termination, an Event of Servicing Termination, or an Event of
Administrator Termination, or after the curing of all Events of Default, Events
of Master Servicing Termination, Events of Servicing Termination or Events of
Administrator Termination which may have occurred, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper document, unless
requested in writing so to do by Certificateholders with an aggregate Percentage
of 50% or more; 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 such investigation 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 against such cost,
expense or liability as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by the [Master Administrator] or, if paid
by the Trustee, shall be reimbursed by the [Master Administrator] upon demand;
and
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian (which may be Affiliates
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of the Trustee) and the Trustee shall not be liable for any acts or omissions of
such agents, attorneys or custodians (i) appointed with due care by it hereunder
and (ii) in respect of the Servicer as custodian of the Loan Files hereunder.
SECTION 10.04. Trustee Not Liable for Certificates or Auto Loans. (a) The
Trustee makes no representations as to the validity or sufficiency of this
Agreement or any Related Document, the Certificates (other than the execution
and authentication thereof) or of any Auto Loan. The Trustee shall not be
accountable for the use or application by the Sponsor of funds paid to the
Sponsor in consideration of conveyance of the Auto Loans to the Trust.
(b) Except with respect to the Trustee in its capacity as Successor [Master
Servicer] or Successor Servicer pursuant to Article IV or Successor [Master
Administrator] pursuant to Article V, the Trustee shall have no responsibility
or liability for or with respect to: the validity of any security interest in
any Automobile; the perfection of any such security interest (whether as of the
date hereof or at any future time) or the maintenance of or the taking of any
action to maintain such perfection; the existence or validity of any Auto Loan,
the validity of the assignment of any Auto Loan to the Trust or of any
intervening assignment; the review of any Auto Loan, any Loan File or the
Electronic Ledger, the completeness of any Loan File, the receipt by it or its
custodian of any Auto Loan or Loan File or (it being understood that the Trustee
has not reviewed and does not intend to review such matters); the performance or
enforcement of any Auto Loan; the compliance by the [Master Administrator], the
Sponsor or the Servicer with any covenant or the breach by the [Master
Administrator], the Sponsor or the Servicer of any warranty or representation
made hereunder or in any related document or the accuracy of any such warranty
or representation; any investment of monies in the Collection Account and the
Cash Reserve Account (except as specified in this Agreement) or any loss
resulting therefrom; the acts or omissions of the [Master Administrator], the
[Master Servicer], the Servicer or any Obligor or Dealer; any action of the
[Master Administrator], the [Master Servicer] or the Servicer taken in the name
of the Trustee; any action by the Trustee taken at the instruction of the
[Master Administrator]. Except as provided in Article IX hereof, no recourse
shall be had for any claim based on any provision of this Agreement, the
Certificates or any Auto Loan or Assignment thereof against the Trustee in its
individual capacity, and the Trustee shall not have any personal obligation,
liability or duty whatsoever to any Certificateholder or any other Person with
respect to any such claim, and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided herein.
SECTION 10.05. Trustee May Own Certificates. The Trustee in its individual
or any other capacity may become the
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owner or pledgee of Investor Certificates with the same rights as it would have
if it were not Trustee.
SECTION 10.06. The [Master Administrator] to Pay Trustee's Fees and
Expenses. The [Master Administrator] agrees:
(a) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it as Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust); and
(b) to reimburse the Trustee upon its request for all reasonable
third-party expenses, disbursements and advances incurred or made by the Trustee
in its capacity as such in accordance with any provision of this Agreement
(including the reasonable compensation and the expenses and disbursement of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith.
The obligations of the [Master Administrator] under this Section 10.06 shall
survive the termination of this Agreement.
SECTION 10.07. Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times (a) be a corporation, depository institution, or trust
company organized and doing business under the laws of the United States of
America or any state thereof authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000, (b)
be subject to supervision or examination by federal or state authority, (c) be
capable of maintaining an Eligible Account and (d) have a long-term unsecured
debt rating of not less than BBB from a nationally recognized statistical rating
organization or such other rating as may be acceptable to the Rating Agency. If
such institution publishes 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 10.07, the combined capital and surplus of
such institution shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 10.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 10.08.
SECTION 10.08. Resignation or Removal of Trustee. (a) The Trustee may at
any time resign and be discharged from the Trust hereby created by giving 30
days' written notice thereof to the [Master Administrator], the [Master
Servicer], the Servicer, the Sponsor and the Rating Agency. Upon receiving such
notice of resignation, the [Master Administrator] shall promptly appoint a
successor Trustee by written instrument, in quintuplicate, one counterpart of
which instrument shall be delivered to each of the Sponsor, the [Master
Servicer], the Servicer, the successor Trustee
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and the predecessor Trustee. A copy of such instrument shall be delivered to the
Rating Agency. 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 10.07 and shall fail to resign after written
request therefor by the [Master Administrator], or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
[Master Administrator] may remove the Trustee. If it removes the Trustee under
the authority of the immediately preceding sentence, the [Master Administrator]
shall promptly appoint a successor Trustee by written instrument, in
quintuplicate, one counterpart of which instrument shall be delivered to each of
the Sponsor, the [Master Servicer], the Servicer, the successor Trustee and the
predecessor Trustee. Copies of such instrument shall also be delivered by the
[Master Administrator] to the Rating Agency.
(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 10.08 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 10.09.
SECTION 10.09. Successor Trustee. (a) Any successor Trustee appointed as
provided in Section 10.08 shall execute, acknowledge and deliver to each of the
[Master Administrator], the Sponsor, the [Master Servicer], the Servicer, and to
its predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder with like effect as if originally named
a Trustee. The predecessor Trustee shall deliver or cause to be delivered to the
successor Trustee or its custodian and any related documents and statements held
by it or its custodian hereunder (provided, that so long as no Event of
Servicing Termination shall have occurred, the Servicer shall continue as
custodian of the Loan Files hereunder); and the [Master Administrator], the
Sponsor, the [Master Servicer], the Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for the full and certain vesting and confirmation in the successor
Trustee of all such rights, powers, duties and obligations.
85
(b) No successor Trustee shall accept appointment as provided in this
Section 10.09 unless at the time of such acceptance such successor Trustee shall
be eligible under the provisions of Section 10.07.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 10.09, the Servicer shall mail notice of the succession of such
Trustee hereunder to each Certificateholder at its address as shown in the
Certificate Register and to the Rating Agency. If the [Master Administrator]
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Sponsor.
SECTION 10.10. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be eligible
under the provisions of Section 10.07, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 10.11. Tax Matters. (a) The [Master Administrator] shall prepare
all tax returns and any other information, returns or reports, if any, that need
to be filed for the Trust. The Trustee shall thereupon execute and file all such
tax returns and other information, returns or reports.
(b) The [Master Administrator], shall take all action reasonably necessary
to assure compliance with the provisions of the Code relating to (i) certain
withholding requirements applicable to non-U.S. Person taxpayers; (ii) backup
withholding requirements and (iii) certain taxpayer certification requirements
relating to clauses (i) and (ii) above.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Termination of Agreement; Optional Repurchase. (a) This
Agreement and the respective obligations and responsibilities of the Sponsor,
the [Master Administrator], the [Master Servicer], the Servicer and the Trustee
created hereby (other than the obligation of the Trustee to make payments to
Certificateholders as hereinafter set forth) shall terminate on the date (the
"Trust Termination Date") which is the earlier to occur of:
86
(i) the day after the day on which the Certificateholders are
paid in full; and
(ii) December 31, 20__.
(b) Upon at least 15 days' written notice to the Trustee (and to Investor
Certificateholders) prior to a Distribution Date, provided the Investor
Certificate Principal Balance on such Distribution Date is 10% or less of the
Initial Principal Amount, the [Master Administrator] may, but is not required
to, purchase as of the last day of the preceding Due Period all, but not less
than all, outstanding Auto Loans at a price equal to the aggregate Principal
Balances of all Auto Loans on the next preceding Distribution Date plus accrued
and unpaid interest thereon at the sum of the weighted average APR through the
last day of such preceding Due Period. Such price shall be deposited to the
Collection Account in immediately available funds by 10:00 a.m., New York City
time, on the relevant Distribution Date and the Trustee shall release (or cause
its custodian to release) the Auto Loans and, if at such time the [Master
Administrator] does not have possession of the Loan Files, the Loan Files to the
[Master Administrator], whereupon the Investor Certificates shall no longer
evidence any right or interest in the Auto Loans or the Loan Files, the
Assignments, or any Insurance Policies or any proceeds of the foregoing. Upon
the request of the [Master Administrator], the Trustee shall perform such other
acts as reasonably requested by the [Master Administrator] and otherwise
cooperate with the [Master Administrator] in connection with the transfer of the
Transferred Assets pursuant to this Section 11.01(b) including, but not limited
to, the execution of any Title Document to the extent necessary to effectuate
the termination of such Auto Loan and the disposition of the related Automobile.
(c) If by the Expected Final Payment Date, the Investor Certificate
Principal Balance (after giving effect to any distributions to be made on such
date) is greater than zero, the Trustee on behalf of the Trust, or the [Master
Administrator] on behalf of the Trustee, will use its best efforts to sell,
dispose of or otherwise liquidate the Transferred Assets in a commercially
reasonable manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids. The proceeds of any such sale, disposition or
liquidation of the Transferred Assets will be treated as Payments and will be
immediately deposited in the Collection Account and such proceeds, in addition
to the Available Funds on deposit in the Collection Account, shall be disbursed
in accordance with the provisions of Section 7.04.
(d) The [Master Administrator] shall give the Trustee, the [Master
Servicer], and the Servicer at least 30 days prior written notice of the date on
which the Trust is expected to terminate in accordance with subsection 11.01(a).
Such notice shall be accompanied by an Officer's Certificate setting forth the
information specified in Section 4.19 covering the period during
87
the then-current calendar year through the date of such notice. Not later than
the fifth Business Day in the Due Period in which the final distribution in
respect to the Investor Certificates is payable to the Investor
Certificateholders, the Trustee shall mail to the Certificateholders a notice
specifying the procedures with respect to such final distribution. The Trustee
shall give a copy of such notice to the Rating Agency at the time such notice is
given to Certificateholders.
SECTION 11.02. Beneficiaries. This Agreement will inure to the benefit of
and be binding upon the parties hereto, the Certificateholders and their
respective successors and permitted assigns. No other Person will have any right
or obligation hereunder.
SECTION 11.03. Amendment. (a) This Agreement may be amended from time to
time by the Sponsor, the [Master Administrator], the [Master Servicer], the
Servicer and the Trustee, without the consent of any of the Certificateholders,
to cure any ambiguity or defect of, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein or to add any
other provisions with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of this Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect in any material respect the
interests of any Certificateholder. Such Opinion of Counsel shall be at the
expense of the party requesting such amendment or, if such Amendment is required
by any Rating Agency to maintain the rating issued by it on the Investor
Certificates or requested by the Trustee in order to clarify any ambiguity or
resolve any inconsistency, then the related Opinion of Counsel shall be at the
expense of the [Master Administrator].
(b) This Agreement may also be amended from time to time by the Sponsor,
the [Master Administrator], the [Master Servicer], the Servicer and the Trustee,
with the consent of the Certificateholders of not less than an aggregate
Percentage of [66 2/3%] of outstanding Investor Certificates, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall (a) reduce
in any manner the amount of, or delay the timing of, collections of payments on
the Auto Loans or distributions which are required to be made on any Certificate
then outstanding, (b) reduce the aforesaid percentage required to consent to any
such amendment or (c) modify this Section 11.03(b) without the consent of the
holders of all Certificates then outstanding. The [Master Administrator] may set
a record date for purposes of determining the holders entitled to give a written
consent or waive compliance as authorized or permitted by this Section 11.03(b).
Such record date shall not be more than 30 days prior to the first solicitation
to such consent or waiver.
88
(c) Promptly after the execution of any amendment or consent pursuant to
this Section 11.03, the Trustee shall furnish such amendment to each Investor
Certificateholder or a written summary of such amendment prepared by the [Master
Administrator] and, not later than the tenth Business Day preceding the
effectiveness of any such amendment, the Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section 11.03 to approve the particular form of
any proposed amendment, 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 Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
(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 11.03, 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 11.04. Notices. (a) All communications and notices to the parties
hereto shall be in writing and delivered or mailed first class mail, postage
prepaid to it at the following address:
If to the Sponsor:
Advanta Auto Finance Corporation
000 Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: _________________
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the [Master Administrator] or the Paying Agent:
______________________________
______________________________
Attention: _________________________________
Facsimile Number: ( ) ________
Telephone Number: ( ) ________
If to the [Master Servicer]:
89
____________________________________________
____________________________________________
Attention: _________________________________
Facsimile Number: ( ) ________
Telephone Number: ( ) ________
If to the Servicer:
Advanta Auto Finance Corporation
000 Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: ______________
Facsimile Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Trustee:
____________________________________________
____________________________________________
Attention: _________________________________
Facsimile Number: ( ) ________
Telephone Number: ( ) ________
If to the Rating Agency:
____________________________________________
____________________________________________
____________________________________________
Attention:
Facsimile Number:
Telephone Number:
or at such other address as the party may designate by notice to the other
parties hereto, which shall be effective when received.
(b) All communications and notices pursuant hereto to a Certificateholder
shall be in writing and delivered or mailed first class mail, postage prepaid at
the address shown in the Certificate Register.
90
SECTION 11.05. Notices and Reports to be Delivered to the Rating Agency. On
or before the later to occur of each Distribution Date and, the Business Day
following its receipt thereof, the [Master Administrator] shall promptly deliver
to the Rating Agency the notices, reports and certificates referred to in
Sections 4.10, 4.17, 4.18, 4.19 and 7.05 which notices, reports and certificates
are required to be delivered to the [Master Administrator] by the [Master
Servicer] and the Servicer. Each report or certificate specified in Sections
4.17(b), 4.18 and 4.19 shall be accompanied by a certificate of the [Master
Administrator] certifying that (a) the [Master Administrator] has reviewed such
report and that nothing came to its attention based on such review which would
lead it to believe that such report or certificate was not accurate or in
compliance with the terms of this Agreement governing the content and
preparation of such report or certificate except as specified therein or as to
which it shall believe to be immaterial and (b) that the [Master Administrator]
has no actual knowledge of any event that has occurred and is continuing which
constitutes an Event of Default, an Event of Master Servicing Termination, an
Event of Servicing Termination, or an Event of Administrator Termination or
would constitute such an event but for the requirement that notice be given or
time elapse or both.
SECTION 11.06. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 11.07. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 11.08. 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 6.01 and 6.02, each Certificate shall
be deemed fully paid.
SECTION 11.09. 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, of the Certificates or the rights of the
Certificateholders.
SECTION 11.10. No Proceedings. The [Master Servicer], the Servicer, the
[Master Administrator] and the Trustee each hereby agrees that it will not,
directly or indirectly institute,
91
or cause to be instituted, against the Sponsor or the Trust any proceeding of
the type referred to in Section 8.01(c) so long as there shall not have elapsed
one year plus one day since the Trust Termination Date.
SECTION 11.11. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(b) THE Sponsor, THE [MASTER SERVICER], THE ORIGINATOR, THE SERVICER, THE
[MASTER ADMINISTRATOR], THE CERTIFICATE REGISTRAR AND TRANSFER AGENT, THE PAYING
AGENT, AND THE TRUSTEE HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN
THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND EACH WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION 11.04
HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE
SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE Sponsor,
THE [MASTER SERVICER], THE ORIGINATOR, THE SERVICER, THE [MASTER ADMINISTRATOR],
THE CERTIFICATE REGISTRAR AND TRANSFER AGENT, THE PAYING AGENT, AND THE TRUSTEE
EACH HEREBY WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION
TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH
LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF THE Sponsor, THE [MASTER SERVICER], THE
ORIGINATOR, THE SERVICER, THE [MASTER ADMINISTRATOR], THE CERTIFICATE REGISTRAR
AND TRANSFER AGENT, THE PAYING AGENT, AND THE TRUSTEE TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING ANY ACTION
OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE Sponsor, THE [MASTER SERVICER], THE ORIGINATOR, THE SERVICER, THE
[MASTER ADMINISTRATOR], THE CERTIFICATE REGISTRAR AND TRANSFER AGENT, THE PAYING
AGENT, AND THE TRUSTEE EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE
IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH
TRIAL WITHOUT A JURY.
SECTION 11.12. Counterparts. This Agreement may be executed in counterparts
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
92
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized this ____ day of
________, 199_.
ADVANTA AUTO FINANCE CORPORATION
as Sponsor
By_______________________________________
Name:
Title:
ADVANTA AUTO FINANCE CORPORATION
_________________________________________
as Servicer
_________________________________________
as [Master Administrator]
By_______________________________________
Name:
Title:
_________________________________________
as [Master Servicer]
By_______________________________________
Name:
Title:
_________________________________________
as Originator
By_______________________________________
Name:
Title:
_________________________________________
as Trustee
By_______________________________________
Name:
Title:
EXHIBIT A
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF PURCHASE ASSIGNMENT]
PURCHASE ASSIGNMENT, dated as of __________, 199_ between Advanta Auto
Finance Corporation (the "Sponsor") and ____________________, as Trustee (the
"Trustee").
1. We refer to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of ___________, 199_, by and among the Sponsor;
_________________________________, as [Master Administrator];
_____________________________________, as [Master Servicer]; ______________, as
Originator and Servicer; and the Trustee. All provisions of such Pooling and
Servicing Agreement are incorporated by reference. All capitalized terms shall
have the meanings set forth in the Pooling and Servicing Agreement.
2. The Sponsor does hereby sell, transfer, assign, set over and convey to
the Trustee on behalf of the Trust, without recourse, and the Trust does hereby
purchase, all right, title and interest of the Sponsor in, to and under the
Transferred Assets listed on Schedule 1 hereto.
3. The Sponsor does hereby certify:
(i) the representations and warranties of the Sponsor, the
[Master Administrator], and to its best knowledge, the [Master
Servicer] and the Servicer set forth in Sections 3.01, 3.02, 4.03
and 5.04 of the Pooling and Servicing Agreement, are true and
correct on and as of the date hereof, before and after giving effect
to the Purchase evidenced hereby and to the application of the
proceeds therefrom, as though made on and as of such date;
(ii) no event has occurred, or would result from such Purchase
or from the application of the proceeds therefrom, which constitutes
an Event of Default or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both;
(iii) the Sponsor is in compliance with each of its covenants
set forth in the Pooling and Servicing Agreement;
(iv) to the best of its knowledge, no event has occurred which
constitutes an Event of Master Servicing Termination or would
constitute an Event of Master
Servicing Termination but for the requirement that notice
be given or time elapse or both;
(v) to the best of its knowledge, no event has occurred which
constitutes an Event of Servicing Termination or would constitute an
Event of Servicing Termination but for the requirement that notice
be given or time elapse or both;
(vi) no event has occurred which constitutes an Event of
Administrator Termination or would constitute an Event of
Administrator Termination but for the requirement that notice be
given or time elapse or both; and
(vii) the aggregate Individual Sold Balance of the Auto Loans
listed on Schedule 1 hereto to be purchased by the Trust pursuant to
this Purchase Assignment is $______ which amount does not exceed the
Available Purchase Amount.
4. In consideration of the Transferred Assets sold and purchased hereby
the Originator Certificate Principal Balance is increased by $__________.
A-2
IN WITNESS WHEREOF, the parties have caused this Purchase Assignment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ADVANTA AUTO FINANCE CORPORATION
as Sponsor
By:_____________________________
Name:
Title:
ACKNOWLEDGED:
ADVANTA AUTO FINANCE CORPORATION
in its capacity as Servicer
and in its capacity as custodian
for and on behalf of the Trustee
By:_____________________________
Name:
Title:
________________________________,
as [Master Administrator]
By:_____________________________
Name:
Title:
A-3
EXHIBIT B
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
AUTO LOAN PROTECTION POLICY
EXHIBIT C
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ____________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
BLANKET COLLATERAL PROTECTION POLICY
EXHIBIT D
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ____________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF ASSIGNMENT]
ASSIGNMENT, dated as of __________, 199_ between ___________ Company, as
Trustee (the "Trustee") and _________________________ [ORIGINATOR]
_________________________________.
1. We refer to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of ___________, 199_, by and among Advanta Auto
Finance Corporation as Sponsor and as Servicer; ___________________________, as
[Master Administrator]; _________________________, as [Master Servicer];
________________, as Originator; and the Trustee. All provisions of such Pooling
and Servicing Agreement are incorporated by reference. All capitalized terms
shall have the meanings set forth in the Pooling and Servicing Agreement.
2. Pursuant to Section 3.03 of the Pooling and Servicing Agreement, the
Trust does hereby, transfer, assign, set over and convey to __________________
[Originator] __________________, without recourse or warranty, express or
implied, all right, title and interest of the Trust in, to and under the Auto
Loans listed on Schedule 1 hereto (each, a "Repurchased Auto Loan") and
[Originator] does hereby purchase such Auto Loans.
3. The aggregate Repurchase Price for such [repurchased] [purchased] Auto
Loan(s) is $___________.
IN WITNESS WHEREOF, the parties have caused this Assignment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
____________________________,
as Trustee
By:_____________________________
Name:
Title:
[ORIGINATOR]
By:_____________________________
Name:
Title:
ACKNOWLEDGED:
________________________________,
as Originator
By:_____________________________
Name:
Title:
________________________________,
as [Master Administrator]
By:_____________________________
Name:
Title:
D-2
EXHIBIT E
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF RELEASE AND ASSIGNMENT]
RELEASE AND ASSIGNMENT, dated as of __________, 199_ between
_________________, as Trustee (the "Trustee") and _______________, as Servicer
(the "Servicer").
1. We refer to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of _________, 199_ by and among Advanta Auto
Finance Corporation, as Sponsor and as Servicer; ____________________________,
as [Master Administrator]; _________________________, as [Master Servicer];
________________, as Originator; and the Trustee. All provisions of such Pooling
and Servicing Agreement are incorporated by reference. All capitalized terms
shall have the meanings set forth in the Pooling and Servicing Agreement.
2. Pursuant to Section 4.07 of the Pooling and Servicing Agreement, the
Trustee does hereby transfer, assign, set over and convey to the Servicer
without recourse or warranty, express or implied, all right, title and interest,
in, to and under the Auto Loans (and the related Loan Files) listed on Schedule
1 hereto.
IN WITNESS WHEREOF, the parties have caused this Release and Assignment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
____________________________,
as Trustee
By:_____________________________
Name:
Title:
ACKNOWLEDGED:
________________________________,
as Servicer
By:_____________________________
Name:
Title:
________________________________,
as [Master Administrator]
By:_____________________________
Name:
Title:
E-2
EXHIBIT F
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF SERVICER REPORT]
EXHIBIT G
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ____________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF [Master Administrator] REPORT]
(To be delivered pursuant to Section 5.11 of the
Pooling and Servicing Agreement on each
Determination Date immediately
preceding a Distribution Date to the
Trustee and the Rating Agency and pursuant
to Section 7.05 to the Certificateholders)
G-1
EXHIBIT H
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_
[FORM OF INVESTOR CERTIFICATE]
INVESTOR CERTIFICATE
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
% Certificates
No. __________ CUSIP No. ________
Original Principal
Amount: $_________
UNLESS THIS INVESTOR CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE SPONSOR TRUST COMPANY TO THE CERTIFICATE REGISTRAR AND
TRANSFER AGENT OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE SPONSOR TRUST
COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
This certifies that Cede & Co. (the "Investor Certificateholder") is
the registered owner of a fractional undivided interest in a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Agreement"), dated
as of ___________, 199_, among Advanta Auto Finance Corporation, as Sponsor and
as Servicer (the "Sponsor"), ___________________, as [Master Administrator] (the
"[Master Administrator]"), ______________________________________, as [Master
Servicer] (the "[Master Servicer]"), ______________, as Originator (the
"Originator") and ___________________, as Trustee (the "Trustee"). The Trust
includes among its assets the Auto Loans, the Insurance Policies, all rights of
the Sponsor under each Sale Agreement, all monies due or to become due and all
amounts received with respect thereto and all proceeds thereof (the "Transferred
Assets") together with all funds on deposit in the Collection Account and all
funds on deposit in the Cash Reserve Account (collectively the "Trust Assets").
This Investor Certificate is described in the Agreement and is issued pursuant
and subject to the Agreement and the Investor Certificateholder acknowledges and
agrees to be bound by the terms and conditions of the Agreement to the same
extent as if the Investor Certificateholder were a party thereto. By acceptance
of this Investor Certificate the Investor Certificateholder assents to and
becomes bound by the Agreement.
To the extent not defined herein, all capitalized terms have the meanings
assigned in the Agreement.
Under the Agreement, on each Distribution Date the Trustee at the
direction of the [Master Administrator] shall disburse Available Funds (to the
extent available after making the disbursements of the Monthly Servicing Fee,
the Monthly Subrogation Amounts and the Monthly Administrator Fee owing to the
[Master Servicer] and the [Master Administrator] respectively, as the case may
be on such day) in the following priority: (a) during the Interest-Only Period:
(i) to the Investor Certificateholders, interest in an amount equal to the
lesser of (A) the sum of (1) one-quarter of the Certificate Rate times the
Investor Certificate Principal Balance and (2) any Shortfall and (B) the sum of
the Investor's Share of the Available Distribution Amount plus the Available
Subordination Amount ("Investor Interest"); (ii) to the holder of the Originator
Certificate, in reduction of the Originator Certificate Principal Balance, an
amount equal to the excess of (A) the Originator Certificate Principal Balance
over (B) Originator's Share of the aggregate Principal Balance of the Auto Loans
determined as of the end of the immediately preceding Due Period ("Originator
Certificate Principal"); (iii) to the holder of the Originator Certificate,
interest in an amount equal to one-quarter of the Certificate Rate times the
Originator Certificate Principal Balance ("Originator Certificate Interest");
(iv) to the Cash Reserve Account, an amount equal to the lesser of (A) the
Aggregate Excess Interest on such Distribution Date and (B) the Required Cash
Reserve Amount minus the Available Cash Reserve Amount; (v) to the Originator
Certificateholder, an amount equal to the excess, if any, of the Aggregate
Excess Interest over the amount disbursed to the Cash Reserve Account in
accordance with the provisions of clause (iv); and (vi) the remainder of funds
held in the Collection Account following the distributions in clauses (i) -
(v) above shall be retained in the Collection Account and (b) during the
Principal Amortization Period: (i) to the Investor Certificateholders, Investor
Interest; (ii) to the Investor Certificateholders, in reduction of the Investor
Certificate Principal Balance, an amount equal to the lesser of (A) principal in
an amount equal to the excess of (1) the Investor Certificate Principal Balance
over (2) the Investor's Share of the aggregate Principal Balance of the Auto
Loans determined as of the end of the immediately preceding Due Period and (B)
the sum of the balance of the Investor's Share of the Available Distribution
Amount plus the Available Subordination Amount; (iii) to the holder of the
Originator Certificate, Originator Certificate Interest; (iv) to the holder of
the Originator Certificate, in reduction of the Originator Certificate Principal
Balance, Originator Certificate Principal; (v) to the Cash Reserve Account, an
amount equal to the sum of (A) the Required Cash Reserve Amount minus (B) the
Available Cash Reserve Amount; and (vi) to the holder of the Originator
Certificate, the balance. The Available Subordination Amount equals $___________
less all payments made to the Investor
H-2
Certificateholders in excess of the Investor's Share of the Available
Distribution Amount for all Distribution Dates.
On the first Distribution Date following the Distribution Date on
which the Investor Certificateholders have been paid in full, all amounts held
in the Collection Account and the Cash Reserve Account, if any, shall be
disbursed to the holder of the Originator Certificate and all interests of the
Trust in all Auto Loans which have an outstanding balance shall be reconveyed by
the Trustee to, or at the direction of, the Sponsor. Such disbursement and
reconveyance shall constitute the final payment to which the holder of the
Originator Certificate is entitled with respect to its Originator's Interest
pursuant to the terms of this Agreement.
Distributions on this Investor Certificate will be made by same day
funds to the Investor Certificateholder at the address for such Investor
Certificateholder appearing on the Certificate Register on the relevant
Distribution Date without the presentation or surrender of this Investor
Certificate or the making of any notation hereon. Except as otherwise provided
in the Agreement and notwithstanding the above, the final distribution on this
Investor Certificate will be made upon satisfaction of the procedures indicated
in the notice mailed to the Certificateholders as stated in the Agreement.
The Investor Certificateholder will have the benefit of a Cash
Reserve Account to compensate them to the limited extent described in the
Agreement for losses and delinquencies on the Trust Assets to the extent of the
lesser of the amount on deposit in the Cash Reserve Account (after giving effect
to any withdrawals made in respect of the Monthly Servicing Fee and the Monthly
Subrogation Amount) and the Available Subordination Amount. The amount initially
on deposit in the Cash Reserve Account is $___________________. In addition to
withdrawals as a result of losses and delinquencies on the Auto Loans the amount
required to be on deposit in the Cash Reserve Account may be reduced from time
to time upon satisfaction of certain conditions set forth in the Agreement. On
the first Distribution Date following the earlier to occur of (a) payment in
full of the Investor Certificates and (b) the reduction to zero of the Available
Subordination Amount, the Trustee shall disburse all amounts held in the Cash
Reserve Account to the Servicer.
The Agreement may be amended from time to time by the Sponsor, the
[Master Administrator], the [Master Servicer], the Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity or
defect of, to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or to add any other provisions
with respect to matters or questions arising under the Agreement which shall not
be inconsistent with the provisions of the Agreement; provided, however, that
such action shall not, as evidenced by an
H-3
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder.
The Agreement may also be amended from time to time by the Sponsor,
the [Master Administrator], the [Master Servicer], the Servicer and the Trustee,
with the consent of Investor Certificateholders of not less than an aggregate
Percentage of [66 2/3%], for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Auto Loans or distributions which
are required to be made on any Certificate then outstanding, (b) reduce the
aforesaid percentage required to consent to any such amendment or (c) modify
Section 11.03(b) of the Agreement without the consent of the holders of all
Investor Certificates then outstanding. The [Master Administrator] may set a
record date for purposes of determining the holders entitled to give a written
consent or waive compliance as authorized or permitted by this Section 11.03(b)
of the Agreement. Such record date shall not be more than 30 days prior to the
first solicitation to such consent or waiver. Promptly after the execution of
any amendment or consent pursuant to Section 11.03 of the Agreement, the Trustee
shall furnish such amendment to each Investor Certificateholder or a written
summary of such amendment prepared by the [Master Administrator] and, not later
than the tenth Business Day preceding the effectiveness of any such amendment,
the Rating Agency. It shall not be necessary for the consent of Investor
Certificateholders under Section 11.03 of the Agreement to approve the
particular form of any proposed amendment, 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
Investor Certificateholders shall be subject to such reasonable requirements as
the Trustee may prescribe. In connection with any amendment pursuant to Section
11.03 of the Agreement, the Trustee shall be entitled to receive an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
Agreement.
No sale, transfer or other disposition of this Investor Certificate
shall be permitted other than in accordance with the provisions of Sections 6.03
or 6.09 of the Agreement.
The Agreement and the respective obligations and responsibilities of
the Sponsor, the Certificateholders, the [Master Administrator], the [Master
Servicer], the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders as hereinafter
set forth) shall terminate on the earlier of:
(i) the day after the day on which the Certificateholders
are paid in full; and
H-4
(ii) December 31, 20__.
Upon at least 15 days' written notice to the Trustee (and to
Investor Certificateholder) prior to a Distribution Date, provided the Investor
Certificate Principal Balance on such Distribution Date is 10% or less of the
Initial Principal Amount, the [Master Administrator] may, but is not required
to, purchase as of the last day of the preceding Due Period all, but not less
than all, outstanding Auto Loans at a price equal to the aggregate Principal
Balances of all Auto Loans the next preceding Distribution Date plus accrued and
unpaid interest thereon at the sum of the weighted average APR through the last
day of such preceding Due Period. Such price shall be deposited to the
Collection Account in immediately available funds by 10:00 a.m., New York City
time, on the relevant Distribution Date and the Trustee shall release (or cause
its custodian to release) the Auto Loans and, if at such time the [Master
Administrator] does not have possession of the Loan Files, the Trustee shall
release the Loan Files, to the [Master Administrator], whereupon the Investor
Certificate shall no longer evidence any right or interest in the Auto Loans or
the Loan Files, the Assignments, or any Insurance Policies or any proceeds of
the foregoing. Upon the request of the [Master Administrator], the Trustee shall
perform such other acts as reasonably requested by the [Master Administrator]
and otherwise cooperate with the [Master Administrator] in connection with the
transfer of the Transferred Assets pursuant to Section 11.01(b) of the Agreement
including, but not limited to, the execution of (any Title Document to the
extent necessary to effectuate the termination of such Auto Loan and the
disposition of the related Automobile.
It is the intention of the Sponsor that, with respect to all Taxes,
the Investor Certificates will be treated as indebtedness of the Sponsor to the
Investor Certificateholders secured by the Transferred Assets (the "Intended Tax
Characterization"). The Sponsor and the Trustee, by entering into the Pooling
and Servicing Agreement, and each Investor Certificateholder by the purchase of
this Investor Certificate, agree to report such transactions for purposes of all
Taxes in a manner consistent with the Intended Tax Characterization.
This Investor Certificate does not represent an obligation of, or an
interest in the Servicer, the Originator or the Sponsor or any Affiliate
thereof. This Investor Certificate is limited in right of payment to certain
collections respecting the Trust Assets, all as more specifically set forth
herein and in the Agreement.
The holder hereof, by its acceptance of this Investor Certificate,
agrees to look solely to the funds in the Collection Account to the extent
available for distribution to the holder hereof as provided in the Agreement for
payment hereunder and that the Trustee in its individual capacity is not
personally liable to
H-5
the holder hereof for any amounts payable under this Investor
Certificate or the Agreement.
This Investor Certificate does not purport to summarize the
Agreement and is qualified in its entirety by the Agreement. Reference is made
to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be made available for review and inspection by any Investor
Certificateholder during normal business hours at the office of the Trustee,
____________________________________________upon the prior written request of
the Investor Certificateholder.
H-6
IN WITNESS WHEREOF, [ADVANTA AUTO RECEIVABLES TRUST 199_- _ has
caused this Investor Certificate to be duly executed by the manual or facsimile
signature of the duly authorized officer of the Trustee.
[ADVANTA AUTO RECEIVABLES
TRUST 199_-_]
By [TRUSTEE], not in its
individual capacity, but solely as
Trustee
By________________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned
Agreement.
[TRUSTEE], as Trustee
By_______________________________
Authorized Officer
Dated: ___________, 199_
H-7
ASSIGNMENT
Social Security or other identifying number of assignee
___________________.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ________________________________________________
________________________________________________________________________________
(name and address of assignee)
the written certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________, attorney, to transfer
said certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:____________________
(1) A Non U.S. Person as Note: The signature(s) to
defined in the Code must this Assignment
certify to the Trustee in must correspond
writing as to its Non U.S. with the name(s) as
Person status and such written on the face
further information as may of the within
be required under the Code certificate in
or reasonably requested by every particular
the Trustee without alteration
or enlargement or
any change
whatsoever
H-8
EXHIBIT I
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF ORIGINATOR CERTIFICATE]
ORIGINATOR CERTIFICATE
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
__% Interest Rate
No. __________ CUSIP No. ________
Original Principal
Amount: $_________
THIS ORIGINATOR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS ORIGINATOR CERTIFICATE NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS.
THIS ORIGINATOR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
This certifies that _____________________ (the "Originator
Certificateholder") is the registered owner of a fractional undivided interest
in a trust (the "Trust") created pursuant to a Pooling and Servicing Agreement
(the "Agreement"), dated as of ___________, 1993, among Advanta Auto Finance
Corporation, as Sponsor and as Servicer (the "Sponsor"), ___________, as [Master
Administrator] (the "[Master Administrator]"), _____________________________, as
[Master Servicer] (the "[Master Servicer]"), __________________, as Originator
(the "Originator") and , as Trustee (the "Trustee"). The Trust includes among
its assets the Auto Loans, the Insurance Policies (other than any obligation to
make any payment thereunder to the Insurance Companies and taxes on premiums
paid or payable thereon which shall be obligations of the [Master Administrator]
during such time as _________ is the [Master Administrator], and at any time
thereafter, the Sponsor), all rights of the Sponsor under each Sale Agreement,
all monies due or to become due and all amounts received with respect thereto
and all proceeds thereof (the "Transferred Assets") together with all funds on
deposit in the Collection Account and all funds on deposit in the Cash Reserve
Account (collectively the "Trust Assets"). This Originator Certificate is
described in the Agreement and is issued pursuant and subject to the Agreement
and the Originator Certificateholder acknowledges and agrees to be bound by the
terms and conditions of the Agreement to the same extent as if the
Originator Certificateholder were a party thereto. By acceptance of this
Originator Certificate the Originator Certificateholder assents to and becomes
bound by the Agreement. To the extent not defined herein, all capitalized terms
have the meanings assigned in
the Agreement.
Upon the satisfaction of the requirements contained in Section
6.02(b) of the Agreement, the Originator Certificateholder may surrender the
Originator Certificate to the Trustee, and the Trustee will execute on behalf of
the Trust, authenticate and deliver the Investor Certificates and a newly issued
Originator
Certificate.
On the 20th day of each month (or, if such day is not a Business
Day, the following Business Day) the Trustee, at the direction of the [Master
Administrator], shall disburse the balance of Available Funds (to the extent
available after making the disbursements of the Monthly Servicing Fee, the
Monthly Subrogation Amounts and the Monthly Administrator Fee owing to the
[Master Servicer] and the [Master Administrator] respectively, as the case may
be on such day) to the Originator Certificateholder. Under the Agreement, on
each Distribution Date the Trustee at the direction of the [Master
Administrator] shall disburse Available Funds (to the extent available after
making the disbursements of the Monthly Servicing Fee, the Monthly Subrogation
Amounts and the Monthly Administrator Fee owing to the [Master Servicer] and the
[Master Administrator] respectively, as the case may be on such day) in the
following priority: (a) during the Interest-Only Period: (i) to the Investor
Certificateholders, interest in an amount equal to the lesser of (A) the sum of
(1) one-quarter of the Certificate Rate times the Investor Certificate Principal
Balance and (2) any Shortfall and (B) the sum of the Investor's Share of the
Available Distribution Amount plus the Available Subordination Amount ("Investor
Interest"); (ii) to the Originator Certificateholder, in reduction of the
Originator Certificate Principal Balance, an amount equal to the excess of (A)
the Originator Certificate Principal Balance over (B) Originator's Share of the
aggregate Principal Balance of the Auto Loans determined as of the end of the
immediately preceding Due Period ("Originator Certificate Principal"); (iii) to
the Originator Certificateholder, interest in an amount equal to one-quarter of
the Certificate Rate times the Originator Certificate Principal Balance
("Originator Certificate Interest"); (iv) to the Cash Reserve Account, an amount
equal to the least of (A) the Aggregate Excess Interest on such Distribution
Date, (B) the Required Cash Reserve Amount minus the Available Cash Reserve
Amount and (C) the Available Subordination Amount; (v) to the Originator
Certificateholder, an amount equal to the excess, if any, of the Aggregate
Excess Interest over the amount disbursed to the Cash Reserve Account in
accordance with the provisions of clause (iv); and (vi) the remainder of funds
held in the Collection Account following the distributions in clauses (i) - (v)
above shall be retained in the Collection Account and (b) during the Principal
Amortization Period: (i) to the Investor
I-2
Certificateholders, Investor Interest; (ii) to the Investor Certificateholders,
in reduction of the Investor Certificate Principal Balance, an amount equal to
the lesser of (A) principal in an amount equal to the excess of (1) the Investor
Certificate Principal Balance over (2) the Investor's Share of the aggregate
Principal Balance of the Auto Loans determined as of the end of the immediately
preceding Due Period and (B) the sum of the balance of the Investor's Share of
the Available Distribution Amount plus the Available Subordination Amount; (iii)
to the Originator Certificateholder, Originator Certificate Interest; (iv) to
the Originator Certificateholder, in reduction of the Originator Certificate
Principal Balance, Originator Certificate Principal; (v) to the Cash Reserve
Account, an amount equal to the sum of the lesser of (A) the Required Cash
Reserve Amount minus the Available Cash Reserve Amount and (B) the Available
Subordination Amount; and (vi) to the Originator Certificateholder, the balance.
The Available Subordination Amount equals $___________ less all payments made to
the Investor Certificateholders in excess of the Investor's Share of the
Available Distribution Amount for all Distribution Dates.
On the first Distribution Date following the Distribution Date on
which the Investor Certificateholders have been paid in full, all amounts held
in the Collection Account and the Cash Reserve Account, if any, shall be
disbursed to the Originator Certificateholder and all interests of the Trust in
all Auto Loans which have an outstanding balance shall be reconveyed by the
Trustee to, or at the direction of, the Sponsor. Such disbursement and
reconveyance shall constitute the final payment to which the Originator
Certificateholder is entitled with respect to its Originator's Interest pursuant
to the terms of this Agreement.
Distributions on this Originator Certificate will be made by wire
transfer in immediately available funds to the account specified by the
Originator Certificateholder in writing, on the relevant Distribution Date
without the presentation or surrender of this Originator Certificate or the
making of any notation hereon. Except as otherwise provided in the Agreement and
notwithstanding the above, the final distribution on this Originator Certificate
will be made upon satisfaction of the procedures indicated in the notice mailed
to the Certificateholders as stated in the Agreement.
The Agreement may be amended from time to time by the Sponsor, the
[Master Administrator], the [Master Servicer], the Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity or
defect of, to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or to add any other provisions
with respect to matters or questions arising under the Agreement which shall not
be inconsistent with the provisions of the Agreement; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel, adversely affect
in any material respect the interests of any Certificateholder.
I-3
The Agreement may also be amended from time to time by the Sponsor,
the [Master Administrator], the [Master Servicer], the Servicer and the Trustee,
with the consent of Investor Certificateholders of not less than an aggregate
Percentage of 66 2/3%, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Agreement or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Auto Loans or distributions which
are required to be made on any Certificate then outstanding, (b) reduce the
aforesaid percentage required to consent to any such amendment or (c) modify
Section 11.03(b) of the Agreement without the consent of the holders of all
Investor Certificates then outstanding. The [Master Administrator] may set a
record date for purposes of determining the holders entitled to give a written
consent or waive compliance as authorized or permitted by this Section 11.03(b)
of the Agreement. Such record date shall not be more than 30 days prior to the
first solicitation to such consent or waiver. Promptly after the execution of
any amendment or consent pursuant to Section 11.03 of the Agreement, the Trustee
shall furnish such amendment to each Originator Certificateholder or a written
summary of such amendment prepared by the [Master Administrator] and, not later
than the tenth Business Day preceding the effectiveness of any such amendment,
the Rating Agency. It shall not be necessary for the consent of Investor
Certificateholders under Section 11.03 of the Agreement to approve the
particular form of any proposed amendment, 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
Investor Certificateholders shall be subject to such reasonable requirements as
the Trustee may prescribe. In connection with any amendment pursuant to Section
11.03 of the Agreement, the Trustee shall be entitled to receive an Opinion of
Counsel to the effect that such amendment is authorized or permitted by the
Agreement.
No sale, transfer or other disposition of this Originator
Certificate shall be permitted other than in accordance with the provisions of
Sections 6.03 or 6.09 of the Agreement.
The Agreement and the respective obligations and responsibilities of
the Sponsor, the Certificateholders, the [Master Administrator], the [Master
Servicer], the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders as hereinafter
set forth) shall terminate on the earlier of:
(i) the day after the day on which the
Certificateholders are paid in full; and
(ii) December __, ____.
I-4
Upon at least __ days' written notice to the Trustee (and to
Investor Certificateholder) prior to a Distribution Date, provided the Investor
Certificate Principal Balance on such Distribution Date is __% or less of the
Initial Principal Amount, the [Master Administrator] may, but is not required
to, purchase as of the last day of the preceding Due Period all, but not less
than all, outstanding Auto Loans at a price equal to the aggregate Principal
Balances of all Auto Loans the next preceding Distribution Date plus accrued and
unpaid interest thereon at the sum of the weighted average APR through the last
day of such preceding Due Period. Such price shall be deposited to the
Collection Account in immediately available funds by 10:00 a.m., New York City
time, on the relevant Distribution Date and the Trustee shall release (or cause
its custodian to release) the Auto Loans and, if at such time the [Master
Administrator] does not have possession of the Loan Files, the Trustee shall
release the Loan Files, to the [Master Administrator], whereupon the Investor
Certificate shall no longer evidence any right or interest in the Auto Loans or
the Loan Files, the Assignments, or any Insurance Policies or any proceeds of
the foregoing. Upon the request of the [Master Administrator], the Trustee shall
perform such other acts as reasonably requested by the [Master Administrator]
and otherwise cooperate with the [Master Administrator] in connection with the
transfer of the Transferred Assets pursuant to Section 11.01(b) of the Agreement
including, but not limited to, the execution of (any Title Document to the
extent necessary to effectuate the termination of such Auto Loan and the
disposition of the related Automobile.
This Originator Certificate does not represent an obligation of, or
an interest in the Servicer, the Originator or the Sponsor or any Affiliate
thereof. This Originator Certificate is limited in right of payment to certain
collections respecting the Trust Assets, all as more specifically set forth
herein and in the Agreement.
The holder hereof, by its acceptance of this Originator Certificate,
agrees to look solely to the funds in the Collection Account to the extent
available for distribution to the holder hereof as provided in the Agreement for
payment hereunder and that the Trustee in its individual capacity is not
personally liable to the holder hereof for any amounts payable under this
Originator Certificate or the Agreement.
This Originator Certificate does not purport to summarize the
Agreement and is qualified in its entirety by the Agreement. Reference is made
to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all amendments
thereto will be made available for review and inspection by any Originator
Certificateholder during normal business hours at the office of the
I-5
Trustee, _________________________________________ upon the prior written
request of the holder of the Originator Certificate.
I-6
IN WITNESS WHEREOF, [ADVANTA AUTO RECEIVABLES TRUST 199_- _ has
caused this Originator Certificate to be duly executed by the manual or
facsimile signature of the duly authorized officer of the Trustee.
[ADVANTA AUTO RECEIVABLES
TRUST 199_-_]
By [TRUSTEE], not in its
individual capacity, but solely as
Trustee
By ______________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Originator Certificate referred to in the within
mentioned Agreement.
[TRUSTEE], as Trustee
By ______________________________
Authorized Officer
Dated: ___________, 199_
I-7
ASSIGNMENT
Social Security or other identifying number of assignee
___________________.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ________________________________________________
________________________________________________________________________________
(name and address of assignee)
the written certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ____________________________, attorney, to transfer
said certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:____________________
(1) A Non U.S. Person as Note: The signature(s) to
defined in the Code must this Assignment
certify to the Trustee in must correspond
writing as to its Non U.S. with the name(s) as
Person status and such written on the face
further information as may of the within
be required under the Code certificate in
or reasonably requested by every particular
the Trustee without alteration
or enlargement or
any change
whatsoever
I-8
EXHIBIT J
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF SPONSOR AGREEMENT]
EXHIBIT K
TO
POOLING AND SERVICING AGREEMENT
DATED AS OF ___________, 199_
[ADVANTA AUTO RECEIVABLES TRUST 199_-_]
[FORM OF ISSUANCE SUPPLEMENT]
ISSUANCE SUPPLEMENT, dated as of _______, 199_, among ADVANTA AUTO
FINANCE CORPORATION, a Nevada corporation, its successors and permitted assigns,
as Sponsor and as Servicer (the "Sponsor" and "Servicer" respectively),
________________________________, a ________ corporation, its successors and
permitted assigns as [Master Administrator] (the "[Master Administrator]"),
_________________, a ________ corporation, its successors and permitted assigns,
as [Master Servicer] (the "[Master Servicer]"), _________________, a ___________
corporation, its successors and permitted assigns, as Originator (the
"Original"), and __________________, a ______________________ corporation, its
successors and permitted assigns, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, Section 6.02(b) of the Agreement provides that the parties
hereto shall execute and deliver an Issuance Supplement in connection with the
issuance, authentication and delivery of the Investor Certificates.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. (a) Certain Defined Terms. As used herein, the following
terms shall have the following meanings:
"Certificate Rate" means interest paid at the rate per annum equal
to ___%.
"Distribution Date" means the 20th day of each [month], [month],
[month] and [month] (or, if such day is not a Business Day, the next succeeding
Business Day).
"Expected Final Payment Date" means ____________, 199_.
"Initial Principal Amount" means $_____________.
"Investor's Share" means ___%.
"Issuance Date" means __________________, 199_.
"Maximum Subordination Amount" means, on any Distribution Date, an
amount equal to $__________________ [the product of (a) the Originator's Share
and (b) the aggregate Principal Balance of the Auto Loans determined as of the
end of the calendar month immediately preceding the Issuance Date].
"Required Cash Reserve Amount" means _______.
"Originator Certificate Principal Balance" means, as of
the Issuance Date, $________.
"Originator's Share" means ___%.
(b) All capitalized terms used and not defined herein, shall have
the meaning specified in the Pooling and Servicing Agreement.
(c) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Issuance Supplement as a whole. All references to
Articles and Sections shall be deemed to refer to Articles and Sections of this
Issuance Supplement or the Pooling and Servicing Agreement, as the context
requires.
Section 2. Representations, Warranties and Covenants of the Sponsor.
(a) Pursuant to this Issuance Supplement, as of the Issuance Date, the Sponsor
makes the following representations and warranties:
(i) the representations and warranties set forth in Section 3.01 and
Section 3.02(a) of the Pooling and Servicing Agreement (such representations and
warranties are incorporated by reference in this Section 2 and may be relied on
as if such representations and warranties were fully set forth herein as of the
Issuance Date);
(ii) pursuant to Section 3.02(b) of the Pooling and Servicing
Agreement, with respect to each Auto Loan sold to the Sponsor pursuant to each
Sale Agreement, on the date of such sale the Originator made the representations
and warranties to the Sponsor as set forth in its respective Sale Agreement,
copies of which have been delivered to the Trustee, the [Master Servicer] and
the Servicer.
(iii) no event has occurred and is continuing, or would result from the
execution, delivery or performance of this Issuance Supplement by the Sponsor,or
from the application of the proceeds therefrom, which constitutes an Event of
Default or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both; and
(iv) the Sponsor is in compliance with each of its covenants set
forth herein.
K-2
Section 3. Representations, Warranties and Covenants of the [Master
Servicer] and the Servicer. (a) Pursuant to this Issuance Supplement, as of the
Issuance Date, each of the [Master Servicer] and the Servicer makes the
representations and warranties set forth in Section 4.03 of the Pooling and
Servicing Agreement. Such representations and warranties are incorporated by
reference in this Section 3 and may be relied on by the [Master Administrator]
and the Trustee as if such representations and warranties were fully set forth
herein as of the Issuance Date.
(b) Each of the [Master Servicer] and the Servicer also represents,
warrants and covenants as of the Issuance Date that no event has occurred and is
continuing which constitutes an Event of Master Servicing Termination or an
Event of Servicing Termination, as the case may be, or would constitute an Event
of Master Servicing Termination or an Event of Servicing Termination, as the
case may be, but for the requirement that notice be given or time elapse or
both.
Section 4. Representations, Warranties and Covenants of the [Master
Administrator]. (a) Pursuant to this Issuance Supplement, as of the Issuance
Date, the [Master Administrator] makes the representations and warranties set
forth in Section 5.04 of the Pooling and Servicing Agreement. Such
representations and warranties are incorporated by reference in this Section 4
and may be relied on by the Sponsor, the [Master Servicer], the Servicer and the
Trustee as if such representations and warranties were fully set forth herein as
of the Issuance Date.
(b) The [Master Administrator] also represents, warrants and
covenants as of the Issuance Date that no event has occurred and is continuing
which constitutes an Event of Administrator Termination or would constitute an
Event of Administrator Termination but for the requirement that notice be given
or time elapse or both.
Section 5. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. (A) THIS ISSUANCE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
OF THE STATE OF NEW YORK.
(B) THE Sponsor, THE [MASTER SERVICER], THE SERVICER, THE [MASTER
ADMINISTRATOR], THE CERTIFICATE REGISTRAR AND TRANSFER AGENT, THE PAYING AGENT,
AND THE TRUSTEE HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE
BOROUGH OF MANHATTAN IN NEW YORK CITY, AND EACH WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION 11.04 OF THE
POOLING AND SERVICING AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS,
POSTAGE PREPAID.
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THE Sponsor, THE [MASTER SERVICER], THE [MASTER ADMINISTRATOR], THE CERTIFICATE
REGISTRAR AND TRANSFER AGENT, THE PAYING AGENT, AND THE TRUSTEE EACH HEREBY
WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF
ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE Sponsor, THE [MASTER SERVICER], THE SERVICER, THE
[MASTER ADMINISTRATOR], THE CERTIFICATE REGISTRAR AND TRANSFER AGENT, THE PAYING
AGENT, AND THE TRUSTEE TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR AFFECT EITHER'S RIGHT TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF
ANY OTHER JURISDICTION.
(C) THE Sponsor, THE [MASTER SERVICER], THE SERVICER, THE [MASTER
ADMINISTRATOR], THE CERTIFICATE REGISTRAR AND TRANSFER AGENT, THE PAYING AGENT,
AND THE TRUSTEE EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS ISSUANCE
SUPPLEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH
TRIAL WITHOUT A JURY.
Section 8. Counterparts. This Issuance Supplement may be executed in
counterparts each of which shall be an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Issuance
Supplement to be executed by their respective officers thereunto duly authorized
this ____ day of __________, 199_.
ADVANTA AUTO FINANCE CORPORATION
as Sponsor and as Servicer
By:_____________________________
Name:
Title:
________________________________,
as [Master Administrator],
By:_____________________________
Name:
Title:
________________________________,
as [Master Servicer]
By:_____________________________
Name:
Title:
________________________________,
as Originator
By:_____________________________
Name:
Title:
________________________________,
as Trustee
By:_____________________________
Name:
Title:
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