EXHIBIT 99.1
EXECUTION VERSION
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AMENDED AND RESTATED TRUST AGREEMENT
between
BEAR XXXXXXX ASSET BACKED FUNDING INC.
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of December 12, 2002
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND USAGE
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name........................................................................................1
SECTION 2.2. Offices.....................................................................................1
SECTION 2.3. Purposes and Powers.........................................................................1
SECTION 2.4. Appointment of Owner Trustee................................................................2
SECTION 2.5. Capital Contribution of Owner Trust Estate..................................................2
SECTION 2.6. Declaration of Trust........................................................................2
SECTION 2.7. Liability of the Depositor and the Certificateholders.......................................3
SECTION 2.8. Title to Trust Property.....................................................................3
SECTION 2.9. Situs of Trust..............................................................................3
SECTION 2.10. Representations and Warranties of the Depositor.............................................3
SECTION 2.11. Federal Income Tax Matters..................................................................4
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership................................................................5
SECTION 3.2. The Certificates............................................................................5
SECTION 3.3. Authentication of Certificates..............................................................5
SECTION 3.4. Registration of Certificates; Transfer and Exchange of Certificates;
Limitations on Transfer...................................................................5
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates...........................................8
SECTION 3.6. Persons Deemed Owners of Certificates.......................................................8
SECTION 3.7. Access to List of Certificateholders' Names and Addresses...................................8
SECTION 3.8. Maintenance of Office or Agency.............................................................9
SECTION 3.9. Appointment of Certificate Paying Agent.....................................................9
SECTION 3.10. [Reserved]..................................................................................9
SECTION 3.11. Definitive Certificates.....................................................................9
SECTION 3.12. Authenticating Agents.......................................................................9
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain Matters.........................10
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SECTION 4.2. Action by Certificateholders with Respect to Certain Matters...............................11
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy....................................11
SECTION 4.4. Restrictions on Certificateholders' Power..................................................11
SECTION 4.5. Majority Control...........................................................................11
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account..........................................11
SECTION 5.2. Application of Trust Funds.................................................................12
SECTION 5.3. Method of Payment..........................................................................12
SECTION 5.4. No Segregation of Monies; No Interest......................................................13
SECTION 5.5. Accounting and Reports to Noteholders, Certificateholders, Internal Revenue
Service and Others.......................................................................13
SECTION 5.6. Signature on Returns; Tax Matters Partner..................................................13
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority..........................................................................13
SECTION 6.2. General Duties.............................................................................14
SECTION 6.3. Action upon Instruction....................................................................14
SECTION 6.4. No Duties Except as Specified in this Agreement or in Instructions.........................15
SECTION 6.5. No Action Except Under Specified Documents or Instructions.................................15
SECTION 6.6. Restrictions...............................................................................15
SECTION 6.7. Acceptance of Trusts and Duties............................................................16
SECTION 6.8. Furnishing of Documents....................................................................17
SECTION 6.9. Representations and Warranties.............................................................17
SECTION 6.10. Reliance; Advice of Counsel................................................................17
SECTION 6.11. Not Acting in Individual Capacity..........................................................18
SECTION 6.12. Owner Trustee Not Liable for Certificates or Receivables...................................18
SECTION 6.13. Owner Trustee May Own Certificates and Notes...............................................19
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses..........................................................19
SECTION 7.2. Payments to Owner Trustee..................................................................19
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust...................................................................19
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee.................................................20
SECTION 9.2. Resignation or Removal of Owner Trustee....................................................21
SECTION 9.3. Successor Owner Trustee....................................................................21
SECTION 9.4. Merger or Consolidation of Owner Trustee...................................................22
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee..............................................22
SECTION 9.6. Compliance with Statutory Trust Statute....................................................23
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments.................................................................24
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholders.................................25
SECTION 10.3. Limitation on Rights of Others.............................................................25
SECTION 10.4. Notices....................................................................................25
SECTION 10.5. Severability...............................................................................26
SECTION 10.6. Separate Counterparts......................................................................26
SECTION 10.7. Successors and Assigns.....................................................................26
SECTION 10.8. No Petition................................................................................26
SECTION 10.9. No Recourse................................................................................26
SECTION 10.10. Headings...................................................................................26
SECTION 10.11. GOVERNING LAW..............................................................................26
SECTION 10.12. Subordination Agreement....................................................................26
SECTION 10.13. Rule 144A Information......................................................................27
EXHIBIT A FORM OF CERTIFICATE.......................................................................A-1
EXHIBIT B FORM OF CERTIFICATE OF TRUST..............................................................B-1
EXHIBIT C FORM OF TRANSFEROR CERTIFICATE............................................................C-1
EXHIBIT D FORM OF INVESTMENT LETTER.................................................................D-1
EXHIBIT E FORM OF RULE 144A LETTER..................................................................E-1
APPENDIX A Definitions and Usage....................................................................AA-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 12, 2002 (as
from time to time amended, supplemented or otherwise modified and in effect,
this "Agreement"), among BEAR XXXXXXX ASSET BACKED FUNDING INC., a Delaware
corporation, as Depositor, having its principal office at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and WILMINGTON TRUST COMPANY, a Delaware banking
corporation ("Wilmington"), not in its individual capacity but solely as
trustee under this Agreement (in such capacity, the "Owner Trustee"), having
its principal corporate trust office at 0000 Xxxxxx Xxxxxx North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 for the purpose of establishing
the Whole Auto Loan Trust 2002-1.
WHEREAS, the parties hereto intend to amend and restate that certain
Trust Agreement, dated as of September 23, 2002, between the Depositor and the
Owner Trustee, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the receipt and sufficiency of which are hereby
acknowledged, the Depositor and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein are defined
in Appendix A hereto, which also contains rules as to usage that shall be
applicable herein.
ARTICLE II
ORGANIZATION OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as "Whole
Auto Loan Trust 2002-1", in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2. Offices. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
SECTION 2.3. Purposes and Powers. (a) The purpose of the Trust is, and
the Trust shall have the power and authority, to engage in the following
activities:
(i) to acquire, hold and manage the Trust Property;
(ii) to issue the Notes pursuant to the Indenture, and the
Certificates pursuant to this Agreement, and to sell the Notes and the
Certificates upon the written order of the Depositor;
(iii) in exchange for the Notes and the Certificates, to acquire the
Receivables to pay the organizational, start-up and transactional
expenses of the Trust, and to pay the balance to the Depositor pursuant
to the Sale and Servicing Agreement;
(iv) to pay interest on and principal of the Notes and distributions
on the Certificates;
(v) to Grant the Owner Trust Estate (other than the Certificate
Distribution Account and the proceeds thereof) to the Indenture Trustee
pursuant to the Indenture;
(vi) to enter into and perform its obligations under the Deposit
Account Agreements and the Basic Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Owner Trust Estate and the making of interest and principal
payments to the Noteholders and distributions to the Certificateholders.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. Upon the execution of this
Agreement, the Owner Trustee shall continue as trustee of the Trust, to have
all the rights, powers and duties set forth herein.
SECTION 2.5. Capital Contribution of Owner Trust Estate. As of September 23,
2002, the Depositor sold, assigned and transferred to the Owner Trustee the
sum of $1. The Owner Trustee hereby acknowledges receipt in trust from the
Depositor, as of such date, the foregoing contribution, which shall constitute
the initial Owner Trust Estate and shall be deposited in the Certificate
Distribution Account. The Depositor shall pay the organizational expenses of
the Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee. On the Closing Date, the Depositor shall convey to the Trust the
Trust Property and the Owner Trustee shall cause the delivery to or upon the
order of the Depositor the Notes and the Certificates.
SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that (i) the Trust constitute a statutory
trust under the Statutory Trust Statute and that this Agreement constitute the
governing instrument of such statutory trust and (ii) for federal, state and
local income and franchise tax purposes, the Trust shall be treated as a
disregarded entity or a partnership (other than in association or publicly
traded partnership), with the assets of the partnership being the Receivables
and other
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assets held by the Trust, the partners of the partnership being the
Certificateholders and the Depositor, and the Notes constituting indebtedness
of the partnership. The parties agree that, unless otherwise required by the
appropriate tax authorities the Trust, will file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
foregoing characterization of the Trust for such tax purposes. Effective as of
the date hereof, the Owner Trustee shall have all rights, powers and duties
set forth herein and in the Statutory Trust Statute with respect to
accomplishing the purposes of the Trust. The Owner Trustee has filed the
Certificate of Trust with the Secretary of State.
SECTION 2.7. Liability of the Depositor and the Certificateholders.
Neither the Depositor (except as otherwise provided herein) nor any
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8. Title to Trust Property. Legal title to the entirety of the
Owner Trust Estate shall be vested at all times in the Trust as a separate
legal entity, except where applicable law in any jurisdiction requires title
to any part of the Owner Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Trust. The Trust shall be administered by the Owner
Trustee in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Delaware or
the State of New York. The Trust shall not have any employees in any state
other than the State of Delaware; provided, however, that nothing herein shall
restrict or prohibit the Bank, the Depositor or the Owner Trustee from having
employees within or without the State of Delaware. Payments will be received
by the Trust only in Delaware or New York, and payments will be made by the
Trust only from Delaware or New York. The principal office of the Trust shall
be in care of the Owner Trustee in the State of Delaware.
SECTION 2.10. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(a) The Depositor is duly formed and validly existing as a corporation in
good standing under the laws of the State of Delaware, with corporate power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(b) The Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms, and the Depositor has full power and
authority to sell and assign the property to be sold and assigned to, and
deposited with, the Trust, and the Depositor has duly authorized such sale and
assignment and deposit to the Trust by all necessary corporate action; and the
execution, delivery and performance of this Agreement has been duly authorized
by the Depositor by all necessary corporate action.
(c) The Depositor has duly executed and delivered this Agreement, and
this Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor, in accordance with its terms,
except as enforceability may be limited by
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bankruptcy, insolvency, reorganization and other similar laws affecting the
enforcement of creditors' rights in general and by general equitable
principles, regardless of whether such enforceability is considered in a
proceeding at law or in equity.
(d) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not (i) conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the certificate of
incorporation or by-laws of the Depositor, or any indenture, agreement or
other instrument to which the Depositor is a party or by which it is bound,
(ii) result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents) or (iii) violate any
law or, to the best of the Depositor's knowledge, any order, rule or
regulation applicable to the Depositor of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties.
(e) There are no proceedings or investigations pending or, to the
Depositor's best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties (i) asserting the invalidity
of this Agreement, the Indenture, any of the other Basic Documents, the Notes
or the Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Indenture or any of the other Basic Documents, (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Depositor of its obligations under, or the validity or
enforceability of, this Agreement or (iv) which might adversely affect the
federal income tax attributes, or applicable state or local franchise or
income tax attributes, of the Notes and the Certificates.
SECTION 2.11. Federal Income Tax Matters. The Certificateholders
acknowledge that it is their intent and that they understand it is the intent
of the Depositor that, for federal, state and local income and franchise tax
purposes, the Trust shall be treated either as a disregarded entity or a
partnership (other than an association or publicly traded partnership). The
Depositor hereby agrees and each Certificateholder by acceptance of a
Certificate agrees to such treatment and each agrees to take no action
inconsistent with such treatment. For federal, state and local income and
franchise tax purposes income, gain or loss of the Trust for such month as
determined for federal income tax purposes shall be allocated among the
Certificateholders as of the Record Date occurring within such month, in
proportion to their ownership of the Certificate Percentage Interest on such
date.
The Trust is authorized to modify the allocations in this paragraph if
necessary or appropriate, in its sole discretion, for the allocations to
fairly reflect the economic income, gain or loss to the Certificateholders, or
as otherwise required by the Code.
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ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Beneficial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and until
the issuance of the Certificates, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 3.2. The Certificates. (a) The Certificates shall be
substantially in the form set forth in Exhibit A. The Certificates shall be
executed on behalf of the Trust by the Owner Trustee by manual or facsimile
signature of an authorized officer of the Owner Trustee. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Owner Trustee, shall be validly issued and entitled to the benefit of this
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates.
(b) A transferee of a Certificate shall become a Certificateholder, and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 3.4.
(a) Plans and persons investing on behalf of or with "plan assets" of
Plans may not acquire the Certificates.
SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates,
representing 100% of the Certificate Percentage Interest, to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order
of the Depositor, without further action by the Depositor, in authorized
denominations. No Certificate shall entitle its Certificateholder to any
benefit under this Agreement, or shall be valid for any purpose, unless there
shall appear on such Certificate a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Owner Trustee by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.4. Registration of Certificates; Transfer and Exchange of
Certificates Limitations on Transfer. (a) The Certificate Registrar shall keep
or cause to be kept, at the office or agency maintained pursuant to Section
3.8, a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Trust shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. The Owner Trustee shall be the initial Certificate Registrar. No
transfer of a Certificate shall be recognized except upon registration of such
transfer in the Certificate Register.
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The Certificates have not been and will not be registered under the
Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under
the Securities Act and such state securities laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and state securities laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer and
such Certificateholder's prospective transferee shall each certify to the
Owner Trustee in writing the facts surrounding the transfer in substantially
the forms set forth in Exhibit C (the "Transferor Certificate") and either
Exhibit D (the "Investment Letter") or Exhibit E (the "Rule 144A Letter"). The
Depositor shall provide to any Certificateholder and any prospective
transferee designated by any such Certificateholder, information regarding the
Certificates and, based solely on information received from the Servicer, the
Receivables and, to the extent reasonably obtainable by the Depositor, such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. Each Certificateholder desiring
to effect such a transfer shall, and does hereby agree to, indemnify the
Trust, the Owner Trustee, and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with
federal and state securities laws. The Owner Trustee shall cause each
Certificate to contain a legend in the form set forth on the form of
Certificate attached hereto as Exhibit A.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.08 and subject to the
satisfaction of the preceding paragraph, the Owner Trustee shall execute,
authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates of like tenor and in authorized
denominations of a like aggregate Percentage Interest dated the date of
authentication by the Owner Trustee or any authenticating agent; provided that
prior to such execution, authentication and delivery, the Owner Trustee shall
have received an Opinion of Counsel to the effect that the proposed transfer
will not cause the Trust to be characterized as an association (or a publicly
traded partnership) taxable as a corporation or alter the tax characterization
of the Notes for federal income tax purposes. At the option of a Holder,
Certificates may be exchanged for other Certificates of like tenor and of
authorized denominations of a like aggregate Percentage Interest upon
surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.8.
(b) With respect to each transfer of a Certificate, the prospective
transferee shall be deemed to represent the following:
(i) It is not, and each account (if any) for which it is purchasing
the Certificates is not (1) an employee benefit plan, as defined in
Section 3(3) of ERISA, that is subject to Title I of ERISA, (2) a plan
described in Section 4975(e)(1) of the Code that is subject to Section
4975 of the Code, (3) a governmental plan, as defined in Section 3(32) of
ERISA, subject to any federal, State or local law which is, to a material
extent, similar to the provisions of Section 406 of ERISA or Section 4975
of the Code, (4) an entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (within the meaning of
Department of Labor Regulation 29 C.F.R. Section 2510.3-
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101 or otherwise under ERISA) or (5) a person investing "plan assets" of
any such plan (including without limitation, for purposes of this clause
(5), an insurance company general account, but excluding any entity
registered under the Investment Company Act of 1940, as amended).
(ii) It is, and each account (if any) for which it is purchasing
Certificates is, a Person who is (A) a citizen or resident of the United
States, (B) a corporation or partnership organized in or under the laws
of the United States, any state thereof or the District of Columbia, (C)
an estate the income of which is includible gross income for United
States tax purposes, regardless of its source, (D) a trust with respect
to which a U.S. court is able to exercise primary supervision over the
administration of such trust and one or more Persons meeting the
conditions of clause (A), (B), (C) or (E) of this paragraph (ii) has the
authority to control all substantial decisions of the trust or (E) a
Person not described in clauses (A) through (D) above who provides the
Owner Trustee and the Depositor with an IRS Form W-8 ECI or W-8BEN (and
such other certifications, representations, or opinions of counsel as may
be requested by the Owner Trustee or the Depositor).
(iii) It understands that any purported transfer of any Certificate
(or any interest therein) to any Person who does not meet the conditions
of paragraphs (i) and (ii) above shall be, to the fullest extent
permitted by law, void ab initio, and the purported transferee in such a
transfer shall not be recognized by the Trust or any other Person as a
Certificateholder for any purpose.
(c) Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8 and upon compliance with
any provisions of this Agreement relating to such transfer, the Owner Trustee
shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of a like Certificate
Percentage Interest dated the date of authentication by the Owner Trustee or
any authenticating agent. At the option of a Certificateholder, Certificates
may be exchanged for other Certificates of a like Certificate Percentage
Interest upon surrender of the Certificates to be exchanged at the office or
agency maintained pursuant to Section 3.8.
Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar, duly executed
by the related Certificateholder or such Certificateholder's attorney duly
authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The preceding provisions of this Section 3.4 notwithstanding, the Owner
Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates for a
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period of fifteen (15) days preceding any Payment Date for any payment with
respect to the Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or if the Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (b) there shall be
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice that such Certificate has been acquired by a protected
purchaser, the Owner Trustee on behalf of the Trust shall execute and the
Owner Trustee shall authenticate and deliver, in exchange for, or in lieu of,
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate,
of like tenor and denomination. In connection with the issuance of any new
Certificate under this Section 3.5, the Owner Trustee or the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.5 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 3.6. Persons Deemed Owners of Certificates. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee,
the Certificate Registrar or any Certificate Paying Agent may treat the Person
in whose name any Certificate is registered in the Certificate Register as the
owner of such Certificate for the purpose of receiving interest or
distributions pursuant to this Agreement and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar or any
Certificate Paying Agent shall be bound by any notice to the contrary.
SECTION 3.7. Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer, the
Administrator, the Certificate Paying Agent and the Depositor, or to the
Indenture Trustee, within fifteen (15) days after receipt by the Owner Trustee
of a written request therefor from the Servicer, the Administrator, the
Certificate Paying Agent or the Depositor, or the Indenture Trustee, as the
case may be, a list, in such form as the requesting party may reasonably
require, of the names and addresses of the Certificateholders as of the most
recent Record Date. The Certificate Registrar shall also furnish to the Owner
Trustee and the Paying Agent a copy of such list at any time there is a change
therein. If three or more Certificateholders or one or more holders of
Certificates evidencing not less than 25% of the Certificate Percentage
Interest apply in writing to the Owner Trustee, and such application states
that the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five (5)
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Certificateholders.
Each Certificateholder, by receiving and holding a Certificate, shall be
deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
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SECTION 3.8. Maintenance of Office or Agency. The Owner Trustee shall
maintain in the State of Delaware, an office or offices or agency or agencies
where Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Owner Trustee in respect of the
Certificates and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office as its principal corporate
trust office for such purposes. The Owner Trustee shall give prompt written
notice to the Depositor and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9. Appointment of Certificate Paying Agent. The Certificate
Paying Agent shall make distributions to Certificateholders from the
Certificate Distribution Account pursuant to Section 5.2 and shall report the
amounts of such distributions to the Owner Trustee. Any Certificate Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Certificate
Paying Agent if the Owner Trustee determines in its sole discretion that the
Certificate Paying Agent shall have failed to perform its obligations under
this Agreement in any material respect. The Certificate Paying Agent shall
initially be the Owner Trustee. The Certificate Paying Agent shall be
permitted to resign as Certificate Paying Agent upon thirty (30) days' written
notice to the Owner Trustee. In the event that the Owner Trustee shall no
longer be the Certificate Paying Agent, the Owner Trustee shall appoint a
successor to act as Certificate Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Certificate Paying
Agent to execute and deliver to the Owner Trustee an instrument in which such
successor Certificate Paying Agent shall agree with the Owner Trustee that as
Certificate Paying Agent, such successor Certificate Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders. The Certificate Paying Agent shall
return all unclaimed funds to the Owner Trustee and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Owner Trustee. The provisions of Sections 6.7,
6.9, 6.10, 7.1 and 7.2 shall apply to the Certificate Paying Agent. The Owner
Trustee may appoint a co-paying agent. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent appointed by the
Owner Trustee unless the context requires otherwise.
SECTION 3.10. [Reserved].
SECTION 3.11. Definitive Certificates. The Certificates will be issued in
certificated, fully registered form (each a "Definitive Certificate").
SECTION 3.12. Authenticating Agents. (a) The Owner Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Certificates in
connection with issuance, transfers and exchanges under Sections 3.3, 3.4 and
3.5, as fully to all intents and purposes as though each such Authenticating
Agent had been expressly authorized by those Sections to authenticate such
Certificates. For all purposes of this Agreement, the authentication of
Certificates by an Authenticating Agent pursuant to this Section 3.12 shall be
deemed to be the authentication of Certificates "by the Owner Trustee."
9
(b) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, without the execution or
filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Owner Trustee and the Depositor. The Owner
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent, the
Servicer and the Depositor. Upon receiving such notice of resignation or upon
such a termination, the Owner Trustee may appoint a successor Authenticating
Agent and shall give written notice of any such appointment to the Depositor
and the Servicer.
(d) The Servicer, pursuant to the Sale and Servicing Agreement, agrees to
pay to each Authenticating Agent from time to time reasonable compensation for
its services. The provisions of Section 6.4 shall be applicable to any
Authenticating Agent.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholders with Respect to Certain
Matters. It is the intention of the Depositor and the Certificateholders that
the powers and duties of the Owner Trustee are ministerial only and that any
non-ministerial action (including the taking of any legal action) may only be
taken by the Owner Trustee in accordance with this Section 4.1. With respect
to the following matters, the Owner Trustee shall not take action unless at
least thirty (30) days before the taking of such action, the Owner Trustee
shall have notified the Certificateholders of record as of the preceding
Record Date in writing of the proposed action and Certificateholders holding
not less than a majority of the Certificate Percentage Interest shall not have
notified the Owner Trustee in writing prior to the 30th day after such notice
is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuits brought by the Servicer in connection with the collection
of the Receivables) and the settlement of any material action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection by the Servicer of the
Receivables);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Statutory Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
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(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment would materially adversely affect the interests of any
Certificateholders; or
(e) the amendment, change or modification of the Sale and Servicing
Agreement or the Administration Agreement, except to cure any ambiguity or to
amend or supplement any provision in a manner or to add any provision that
would not materially adversely affect the interests of any Certificateholders.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee may not, except upon the occurrence of an Event of
Servicing Termination subsequent to the payment in full of the Notes and in
accordance with the written direction of Certificateholders holding not less
than a majority of the Certificate Percentage Interest, (a) remove the
Servicer under the Sale and Servicing Agreement pursuant to Article VII
thereof, (b) appoint a successor Servicer pursuant to Article VII of the Sale
and Servicing Agreement, (c) remove the Administrator under the Administration
Agreement pursuant to Section 9 thereof or (d) appoint a successor
Administrator pursuant to Section 9 of the Administration Agreement.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust unless the Notes have been paid in full and
each Certificateholder (other than the Depositor) approves of such
commencement in advance and delivers to the Owner Trustee a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of
the other Basic Documents or would be contrary to Section 2.3, nor shall the
Owner Trustee be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein, any
action that may be taken by the Certificateholders under this Agreement may be
taken by the Certificateholders holding not less than a majority of the
Certificate Percentage Interest. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by holders of Certificates evidencing not less
than a majority of the Certificate Percentage Interest at the time of the
delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1. Establishment of Certificate Distribution Account. Pursuant
to Section 4.1(d) of the Sale and Servicing Agreement, there has been
established and there shall be maintained an Eligible Deposit Account, in the
name of the Trust, initially at the corporate trust department of the
Indenture Trustee which shall be designated as the "XXXX 2002-1 Certificate
Distribution Account." Except as expressly provided in Section 3.9, the
Certificate Distribution Account shall be under the sole dominion and control
of the Owner Trustee. All monies
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deposited from time to time in the Certificate Distribution Account pursuant
to the related Sale and Servicing Agreement shall be applied as provided in
the Basic Documents. In the event that the Certificate Distribution Account is
no longer to be maintained at the corporate trust department of the Indenture
Trustee, the Depositor shall, with the Owner Trustee's assistance as
necessary, cause an Eligible Account to be established as the Certificate
Distribution Account within ten (10) Business Days. The Certificate
Distribution Account will be established and maintained pursuant to an account
agreement which specifies New York law as the governing law.
SECTION 5.2. Application of Trust Funds. (a) On each Payment Date, the
Owner Trustee shall, based on the information contained in the Investor Report
delivered on the relevant Determination Date pursuant to Section 3.8 of the
Sale and Servicing Agreement withdraw the amounts deposited into the
Certificate Distribution Account for distribution to the Certificateholders,
in proportion to each Certificateholder's Certificate Percentage Interest,
pursuant to Section 4.5 of the Sale and Servicing Agreement and Section 8.2
(or if applicable Section 5.4(b)) of the Indenture on or prior to such Payment
Date.
(b) On each Payment Date, the Owner Trustee shall, or shall cause the
Certificate Paying Agent to, send to each Certificateholder as of the related
Record Date the Investor Report provided to the Owner Trustee by the Servicer
pursuant to Section 4.7 of the Sale and Servicing Agreement with respect to
such Payment Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section 5.2. The Owner Trustee and each Certificate
Paying Agent is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any such withholding tax that is legally owed by the Trust (but
such authorization shall not prevent the Owner Trustee or any Certificate
Paying Agent from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax
is payable with respect to a distribution (such as a distribution to a
non-U.S. Certificateholder), the Owner Trustee or any Certificate Paying Agent
may, in its sole discretion, withhold such amounts in accordance with this
paragraph (c). In the event that a Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Certificateholder in making such claim so long as such
Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket
expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 8.1(c), distributions
required to be made to Certificateholders on any Payment Date shall be made to
each Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five (5) Business Days
prior to such Payment Date or, if not, by
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check mailed to such Certificateholder at the address of such
Certificateholder appearing in the Certificate Register. Notwithstanding the
foregoing, the final distribution in respect of any Certificate (whether on
the applicable Final Scheduled Payment Date or otherwise) will be payable only
upon presentation and surrender of such Certificate at the office or agency
maintained for that purpose by the Owner Trustee pursuant to Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to Sections
5.1 and 5.2, monies received by the Owner Trustee hereunder need not be
segregated in any manner except to the extent required by law, the Indenture
or the Sale and Servicing Agreement, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
SECTION 5.5. Accounting and Reports to Noteholders, Certificateholders,
Internal Revenue Service and Others. The Trust shall, based on information
provided by or on behalf of the Servicer, (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, (b) deliver (or cause to be delivered) to each
Certificateholder, as may be required by the Code, such information as may be
required (including Schedule K-1) to enable each Certificateholder to prepare
its federal and State income tax returns, (c) file (or cause to be filed) such
tax returns relating to the Trust (including, if applicable, a partnership
information return, IRS Form 1065), and make such elections, as may from time
to time be required or appropriate under any applicable State or federal
statute or rule or regulation thereunder so as to maintain the Trust's
characterization as a disregarded entity or a partnership for federal income
tax purposes, (d) cause such tax returns to be signed in the manner required
by law and (e) collect (or cause to be collected) any withholding tax as
described in and in accordance with Section 5.2(c) with respect to income or
distributions to Certificateholders. The Trust shall elect under Section 1278
of the Code to include in income currently any market discount that accrues
with respect to the Receivables. The Trust shall not make the election
provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a) The Owner
Trustee shall prepare (or cause to be prepared) and shall sign, on behalf of
the Trust, the tax returns of the Trust, if any, unless applicable law
requires a Certificateholder to sign such documents.
(b) In the event that the Trust is required to be treated as a
partnership for federal income tax purposes, _________________________________
_________________________ shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust the Basic Documents to
which the Trust is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Trust is to be a party and any amendment or other agreement, in each case, in
such form as the Depositor shall approve, as evidenced conclusively by the
Owner Trustee's execution thereof and the Depositor's execution of this
Agreement, and to direct the
13
Indenture Trustee to authenticate and deliver (i) Class A-1 Notes in the
aggregate principal amount of $850,000,000, (ii) Class A-2 Notes in the
aggregate principal amount of $956,875,000, (iii) Class A-3 Notes in the
aggregate principal amount of $634,550,000, (iv) Class A-4 Notes in the
aggregate principal amount of $353,212,000, (v) Class B Notes in the aggregate
principal amount of $72,777,000, (vi) Class C Notes in the aggregate principal
amount of $29,110,000 and (vii) Class D Notes in the aggregate principal
amount of $72,777,000. In addition to the foregoing, the Owner Trustee is
authorized to take all actions required of the Trust pursuant to the Basic
Documents. The Owner Trustee is further authorized from time to time to take
such action on behalf of the Trust as is permitted by the Basic Documents and
which the Servicer or the Administrator directs with respect to the Basic
Documents, except to the extent that this Agreement expressly requires the
consent of Certificateholders for such action.
SECTION 6.2. General Duties. Subject to Section 4.1 hereof, it shall be
the duty of the Owner Trustee to discharge (or cause to be discharged) all of
its responsibilities pursuant to the terms of this Agreement and the other
Basic Documents to which the Trust is a party and to administer the Trust in
the interest of the Certificateholders, subject to the lien of the Indenture
and in accordance with the provisions of this Agreement and the other Basic
Documents. Notwithstanding anything else to the contrary in this Agreement,
the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the Basic Documents to the extent the
Administrator is required in the Administration Agreement to perform any act
or to discharge such duty of the Owner Trustee or the Trust hereunder or under
any other Basic Document, and the Owner Trustee shall not be held liable for
the default or failure of the Administrator to carry out its obligations under
the Administration Agreement. Except as expressly provided in the Basic
Documents, the Owner Trustee shall have no obligation to administer, service
or collect the Receivables or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Receivables.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, and in
accordance with the terms of the Basic Documents, the Certificateholders may,
by written instruction, direct the Owner Trustee in the management of the
Trust.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to result in liability on the part of the Owner Trustee or is contrary to the
terms hereof or of any other Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders received, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten (10)
days of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action,
not inconsistent with this Agreement or the
14
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
(d) In the event the Owner Trustee is unsure as to the application of any
provision of this Agreement or any other Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits
any determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten (10) days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Agreement or the
other Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Owner Trustee or the Trust is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection
of any security interest or Lien granted to it hereunder or to prepare or file
any Commission filing for the Trust or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge
any Lien (other than the Lien of the Indenture) on any part of the Owner Trust
Estate that results from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Owner Trust
Estate.
SECTION 6.5. No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the
Owner Trustee pursuant to this Agreement, (ii) in accordance with the other
Basic Documents to which the Trust or the Owner Trust is a party and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.3. Neither the Depositor nor the Certificateholders
shall direct the Trustee to take any action that would violate the provisions
of this Section 6.5.
SECTION 6.6. Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.3 or (b) that, to the actual
15
knowledge of the Owner Trustee, would (i) affect the treatment of the Notes as
indebtedness for federal income or Applicable Tax State income or franchise
tax purposes, (ii) be deemed to cause a taxable exchange of the Notes for
federal income or Applicable Tax State income or franchise tax purposes or
(iii) cause the Trust or any portion thereof to be taxable as an association
(or publicly traded partnership) taxable as a corporation for federal income
or Applicable Tax State income or franchise tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 6.6.
SECTION 6.7. Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of this Agreement
and the other Basic Documents to which the Owner Trustee is a party. The Owner
Trustee shall not be answerable or accountable hereunder or under any other
Basic Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 6.9 expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment
made by a responsible officer of the Owner Trustee;
(b) the Owner 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
instructions of any Certificateholder, the Indenture Trustee, the
Depositor, the Administrator, the Data Administrator or the Servicer;
(c) no provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any other Basic Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or amounts
distributable on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate, or for
or in respect of the validity or sufficiency of the other Basic
Documents, other than the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any
Certificateholder, other than as expressly provided for herein and in the
other Basic Documents;
16
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Servicer, the Administrator, the Data Administrator,
the Depositor or the Indenture Trustee under any of the Basic Documents
or otherwise and the Owner Trustee shall have no obligation or liability
to perform the obligations of the Trust under this Agreement or the other
Basic Documents that are required to be performed by the Administrator
under the Administration Agreement, the Data Administrator under the Data
Administration Agreement, the Indenture Trustee under the Indenture or
the Depositor or the Servicer under the Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Basic Document, at the request,
order or direction of any of the Certificateholders, unless such
Certificateholders have offered to the Owner Trustee reasonable security
or indemnity against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or
in any other Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its willful
misconduct, bad faith or negligence in the performance of any such act.
SECTION 6.8. Furnishing of Documents. The Owner Trustee shall furnish to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.9. Representations and Warranties. (a) The Owner Trustee hereby
represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(i) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has
all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(ii) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will
be executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware State law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee or
any judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
SECTION 6.10. Reliance; Advice of Counsel. (a) The Owner Trustee may rely
upon, shall be protected in relying upon, and shall incur no liability to
anyone in acting upon, any
17
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it
to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any party as conclusive evidence that
such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such agents
or attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care, and (ii) may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such Persons and not contrary to
this Agreement or any other Basic Document.
SECTION 6.11. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction thereof.
SECTION 6.12. Owner Trustee Not Liable for Certificates or Receivables.
The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Owner Trustee on the Certificates) shall
be taken as the statements of the Depositor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
other Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates) or the Notes, or of
any Receivable or related documents. The Owner Trustee shall at no time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Receivable, or the perfection and priority of any
security interest created by any Receivable in any Financed Vehicle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Owner Trust Estate or its ability to generate the payments
to be distributed to Certificateholders under this Agreement or the
Noteholders under the Indenture, including, without limitation: the existence,
condition and ownership of any Financed Vehicle; the existence and
enforceability of any insurance thereon; the existence and contents of any
Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to the Trust or any intervening assignment; the
completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by the Depositor or the Servicer with any warranty
or representation made under any Basic Document or in any related document, or
the accuracy of any such warranty or
18
representation, or any action of the Indenture Trustee, the Administrator or
the Servicer or any subservicer taken in the name of the Owner Trustee.
SECTION 6.13. Owner Trustee May Own Certificates and Notes. Wilmington
Trust Company, in its individual or any other capacity, may become the owner
or pledgee of Certificates or Notes and may deal with the Depositor, the
Servicer, the Administrator, the Data Administrator and the Indenture Trustee
in banking transactions with the same rights as they would have if it was not
the Owner Trustee.
ARTICLE VII
COMPENSATION AND INDEMNITY OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Servicer, pursuant to
the Sale and Servicing Agreement, shall (i) pay to the Owner Trustee as
compensation for its services hereunder such fees as have been separately
agreed upon prior to the date hereof between the Servicer and the Owner
Trustee and (ii) indemnify the Owner Trustee to the extent provided in Section
6.2(d) of the Sale and Servicing Agreement and the Administrator shall
reimburse the Owner Trustee for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 7.2. Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE VIII
TERMINATION
SECTION 8.1. Termination of the Trust. (a) The Trust shall dissolve and
wind up upon the later of, (i) the maturity or other liquidation of the last
remaining Receivable and the disposition of any amounts received upon such
maturity or liquidation, (ii) the payment to the Noteholders and
Certificateholders of all amounts required to be paid to them pursuant to the
terms of the Indenture, the Sale and Servicing Agreement or Article V hereof,
or (iii) the entry of an order for the dissolution of the Trust from a court
of competent jurisdiction. Any Insolvency Event, liquidation, dissolution,
death or incapacity with respect to any Certificateholder shall not (x)
operate to terminate this Agreement or dissolve and/or terminate the Trust,
nor (y) entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto. Upon dissolution of the Trust, the Owner Trustee shall wind up
the business and affairs of the Trust as required by Section 3808 of the
Statutory Trust Statute.
(b) Except as provided in Section 8.1(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
19
(c) Notice of any dissolution of the Trust, specifying the Payment Date
upon which the Certificateholders shall surrender their Certificates to the
Certificate Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to
Certificateholders mailed within five (5) Business Days of receipt of notice
of such dissolution from the Servicer, stating (i) the Payment Date upon or
with respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the
Certificate Paying Agent therein designated, (ii) the amount of any such final
payment (after reservation of sums sufficient to pay all claims and
obligations, if any, known to the Owner Trustee and payable by the Trust) and
(iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Certificate Paying Agent therein specified.
The Owner Trustee shall give such notice to the Certificate Registrar (if
other than the Owner Trustee) and the Certificate Paying Agent at the time
such notice is given to Certificateholders. Upon presentation and surrender of
the Certificates, the Certificate Paying Agent shall cause to be distributed
to Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.2. Upon the satisfaction and discharge of the Indenture, and receipt
of a certificate from the Indenture Trustee stating that all Noteholders have
been paid in full and that the Indenture Trustee is aware of no claims
remaining against the Trust in respect of the Indenture and the Notes, the
Owner Trustee, in the absence of actual knowledge of any other claim against
the Trust, shall be deemed to have made reasonable provision to pay all claims
and obligations (including conditional, contingent or unmatured obligations)
for purposes of Section 3808(e) of the Statutory Trust Statute.
In the event that all of the Certificateholders shall not surrender their
Certificates for cancellation within six (6) months after the date specified
in the above mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates shall
not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Subject to applicable
escheat laws, any funds remaining in the Trust after exhaustion of such
remedies shall be distributed by the Owner Trustee to the Depositor.
(d) Upon final distribution of any funds remaining in the Trust, the
Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810(d) of the Statutory Trust Statute whereupon the
Trust and this Agreement shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee. (a) The Owner
Trustee shall at all times (i) be authorized to exercise corporate trust
powers; (ii) have a combined capital and surplus of at least $50,000,000 and
shall be subject to supervision or examination by federal or state
authorities; and (iii) shall have (or shall have a parent that has) a
long-term debt rating of
20
investment grade by each of the Rating Agencies or be otherwise acceptable to
the Rating Agencies. If such corporation shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section 9.1,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to
be eligible in accordance with the provisions of this Section 9.1, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in Section 9.2.
(b) The Owner Trustee shall at all times be a corporation satisfying the
provisions of Section 3807(a) of the Statutory Trust Statute.
SECTION 9.2. Resignation or Removal of Owner Trustee. (a) The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Owner Trustee and one copy to
the applicable successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within thirty (30) days
after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee; provided, however, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve
the resigning Owner Trustee from any obligations otherwise imposed on it under
the Basic Documents until such successor has in fact assumed such appointment.
(b) If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 or resigns pursuant to Section
9.2 of this Agreement and the ineligible or non-resigning Owner Trustee shall
fail to resign after written request therefor by the Administrator, or if at
any time the Owner Trustee shall be legally unable to act, or if at any time
an Insolvency Event with respect to the Owner Trustee shall have occurred and
be continuing, then the Administrator may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee, and shall pay all fees owed to
the outgoing Owner Trustee.
(c) Any resignation or removal of an Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 9.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.3, payment of all fees and expenses owed
to the outgoing Owner Trustee and the filing of a certificate of amendment to
the Certificate of Trust if required by the Statutory Trust Statute. The
Administrator shall provide notice of such resignation or removal of the Owner
Trustee to the Certificateholders, the Indenture Trustee, the Noteholders and
each of the Rating Agencies.
SECTION 9.3. Successor Owner Trustee. (a) Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this
21
Agreement. Upon the resignation or removal of the predecessor Owner Trustee
becoming effective pursuant to Section 9.2, such successor Owner Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties, and obligations of its predecessor under this
Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall, upon payment of its fees and expenses,
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement, and the Administrator and the predecessor
Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties, and
obligations.
(b) No successor Owner Trustee shall accept appointment as provided in
this Section 9.3 unless, at the time of such acceptance, such successor Owner
Trustee shall be eligible pursuant to Section 9.1.
(c) Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section 9.3, the Administrator shall mail notice of the successor of
such Owner Trustee to all Certificateholders, the Servicer, the Indenture
Trustee, the Noteholders and the Rating Agencies. If the Administrator shall
fail to mail such notice within ten (10) days after acceptance of such
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Administrator.
(d) Any successor Owner Trustee appointed hereunder shall file the
amendments to the Certificate of Trust with the Secretary of State identifying
the name and principal place of business of such successor Owner Trustee in
the State of Delaware.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner 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 Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding, be the successor of the Owner Trustee hereunder;
provided that such corporation shall be eligible pursuant to Section 9.1; and
provided further, that (i) the Owner Trustee shall mail notice of such merger
or consolidation to the Rating Agencies not less than fifteen (15) days prior
to the effective date thereof and (ii) the Owner Trustee shall file an
amendment to the Certificate of Trust as required by Section 9.3.
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or as separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person, in such capacity, such title to the
Owner Trust Estate, or any part thereof, and, subject to the other provisions
of this Section 9.5, such powers, duties, obligations, rights and trusts as
the Administrator and the Owner Trustee may consider necessary or desirable.
If the Administrator
22
shall not have joined in such appointment within fifteen (15) days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 9.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.3.
(b) Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties, and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Owner Trustee or separately, as may be provided therein, subject to all
the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 9.6. Compliance with Statutory Trust Statute. Notwithstanding
anything herein to the contrary, the Trust shall at all times have at least
one trustee which meets the requirements of Section 3807(a) of the Statutory
Trust Statute.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. (a) This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement inconsistent with any other provision of this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel
satisfactory to the Owner Trustee and the Indenture Trustee, adversely affect
in any material respect the interests of any Noteholder or Certificateholder;
and provided further that an Opinion of Counsel shall be furnished to the
Indenture Trustee and the Owner Trustee to the effect that such amendment (A)
will not materially adversely affect the federal or any state or local income
or franchise taxation of any outstanding Note or Certificate, or any
Noteholder or Certificateholder and (B) will not cause the Trust to be treated
as an association (or publicly traded partnership) taxable as a corporation
for federal or any state or local income or franchise tax purposes.
(b) This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of (i) the holders of Notes evidencing not less than a majority of
the principal amount of the Notes Outstanding, (ii) the holders of
Certificates evidencing not less than a majority of the Certificate Percentage
Interest 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 Noteholders or the Certificateholders; provided,
however, that no such amendment shall (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, or change the allocation or
priority of, collections of payments on Receivables or distributions that are
required to be made for the benefit of the Noteholders or the
Certificateholders, or (ii) reduce the aforesaid percentage of the principal
amount of the Notes Outstanding or the Certificate Percentage Interest
required to consent to any such amendment, without the consent of all the
Noteholders and Certificateholders affected thereby; and provided further,
that an Opinion of Counsel shall be furnished to the Indenture Trustee and the
Owner Trustee to the effect that such amendment (A) will not materially
adversely affect the federal or any state or local income or franchise
taxation of any outstanding Note or Certificate, or any Noteholder or
Certificateholder and (B) will not cause the Trust to be treated as an
association (or a publicly traded partnership) taxable as a corporation for
federal or any state or local income or franchise tax purposes.
(c) Promptly after the execution of any such amendment, the Owner Trustee
shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the
Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section 10.1 to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders provided
for in this Agreement or in any other Basic Document) and of
24
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(e) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
(g) In connection with the execution of any amendment to this Agreement
or any amendment to any other agreement to which the Trust is a party, the
Owner Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel to the effect that such amendment is authorized or
permitted by the Basic Documents and that all conditions precedent in the
Basic Documents for the execution and delivery thereof by the Trust or the
Owner Trustee, as the case may be, have been satisfied.
SECTION 10.2. No Legal Title to Owner Trust Estate in Certificateholders.
Neither the Depositor nor the Certificateholders shall have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their beneficial interests therein only
in accordance with Articles V and VIII. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Certificateholders to and
in their beneficial interest in the Owner Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 10.3. Limitation on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Administrator, the Certificateholders, the Servicer and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Owner Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 10.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three (3) Business Days
after mailing if mailed by certified mail, postage prepaid (except that notice
to the Owner Trustee shall be deemed given only upon actual receipt by the
Owner Trustee), if to the Owner Trustee, addressed to the respective Corporate
Trust Office; if to the Depositor, at the address of its principal executive
office first above written; or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the
25
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or
not such Certificateholder receives such notice.
SECTION 10.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 10.8. No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), and the Depositor solely in relation to
the Trust, by entering into this Agreement, and each Certificateholder, by
accepting a Certificate, hereby covenants and agrees that it will not, until
after the Notes have been paid in full, institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the other Basic Documents.
SECTION 10.9. No Recourse. Each Certificateholder, by accepting a
Certificate, acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, the Servicer, the Administrator, the Owner
Trustee, the Indenture Trustee or any Affiliate thereof, and no recourse may
be had against such parties or their assets, except as may be expressly set
forth or contemplated in this Agreement, the Certificates or the other Basic
Documents.
SECTION 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION 10.12. Subordination Agreement. Each Certificateholder, by
accepting a Certificate, hereby covenants and agrees that, to the extent it is
deemed to have any interest in any assets of the Depositor, or a
securitization vehicle (other than the Trust) related to the
26
Depositor, dedicated to other debt obligations of the Depositor or debt
obligations of any other securitization vehicle (other than the Trust) related
to the Depositor, its interest in those assets is subordinate to claims or
rights of such other debtholders to those other assets. Furthermore, each
Certificateholder, by accepting a Certificate, hereby covenants and agrees
that such agreement constitutes a subordination agreement for purposes of
Section 510(a) of the Bankruptcy Code.
SECTION 10.13. Rule 144A Information. So long as the Trust is not subject
to Section 13 or 15(d) of the Exchange Act, upon the request of a
Certificateholder or a Holder of Class D Notes, the Depositor shall promptly
furnish to such Certificateholder or Holder, as the case may be, and to a
prospective purchaser of such Certificate or Class D Note, as applicable,
designated by such Certificateholder or Holder, as applicable, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
to permit compliance with Rule 144A in connection with resales of the
Certificates or Class D Notes, as applicable, in accordance with the terms
hereof (such information to consist of a copy of the Memorandum together with
all financial statements of the Trust, if any, then available).
27
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as
of the day and year first above written.
BEAR XXXXXXX ASSET BACKED
FUNDING INC.,
as Depositor
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
28
EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN
SECTION 3.4 OF THE TRUST AGREEMENT UNDER WHICH THIS CERTIFICATE IS ISSUED (A
COPY OF WHICH TRUST AGREEMENT IS AVAILABLE FROM THE OWNER TRUSTEE OR UPON
REQUEST), INCLUDING RECEIPT BY THE OWNER TRUSTEE OF AN INVESTMENT LETTER IN
WHICH THE TRANSFEREE MAKES CERTAIN REPRESENTATIONS.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO
RECEIVE DISTRIBUTIONS ARE SUBORDINATED TO THE RIGHTS OF THE NOTEHOLDERS AS
DESCRIBED IN THE SALE AND SERVICING AGREEMENT, THE INDENTURE AND THE TRUST
AGREEMENT REFERRED TO HEREIN.
C-_____
WHOLE AUTO LOAN TRUST 2002-1
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below. The
property of the Trust includes a pool of motor vehicle retail installment sale
contracts, secured by security interests in the new and used automobiles and
light duty trucks financed thereby, conveyed by Bear Xxxxxxx Asset Backed
Funding Inc. to the Trust. The property of the Trust has been pledged to the
Indenture Trustee pursuant to the Indenture to secure the payment of the Notes
issued thereunder.
(This Certificate is not a deposit, does not represent an interest in or
obligation of Bear Xxxxxxx Asset Backed Funding Inc., the Owner Trustee, the
Servicer or any of their respective Affiliates and is not insured by the
Federal Deposit Insurance Corporation or any other entity.)
THIS CERTIFIES THAT [___________] is the registered owner of [ ]%
Certificate Percentage Interest nonassessable, fully paid, fractional
undivided interest in Whole Auto Loan Trust 2002-1 (the "Trust") formed by
Bear Xxxxxxx Asset Backed Funding Inc., a Delaware corporation (the
"Depositor").
The Trust is governed pursuant to an Amended and Restated Trust
Agreement, dated as of December 12, 2002 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Trust Agreement"),
between the Depositor and Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which is
set forth below.
A-1
To the extent not otherwise defined herein, the capitalized terms used herein
have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates (herein
called the "Certificates") issued under and subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Certificateholder is bound. Also issued under the Indenture, dated as of
December 12, 2002 (as from time to time amended, supplemented or otherwise
modified and in effect, the "Indenture"), between the Trust and XX Xxxxxx
Xxxxx Bank, as indenture trustee (in such capacity, the "Indenture Trustee"),
are the Notes designated as "Class A-1 1.42% Asset Backed Notes", "Class A-2
1.88% Asset Backed Notes", "Class A-3 2.60% Asset Backed Notes", "Class A-4
3.04% Asset Backed Notes", "Class B 2.91% Asset Backed Notes", "Class C 4.29%
Asset Backed Notes" and "Class D 6.00% Asset Backed Notes" (collectively, the
"Notes"). The property of the Trust includes (i) a pool of motor vehicle
retail installment sale contracts for new and used automobiles and light
trucks and certain rights and obligations thereunder (the "Receivables"); (ii)
monies received thereunder on or after the Cut-off Date; (iii) security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Trust in the Financed Vehicles; (iv)
rights to proceeds from claims on certain physical damage, credit life, credit
disability or other insurance policies, if any, covering Financed Vehicles or
Obligors; (v) all of the Seller's rights to the Receivable Files; (vi) such
amounts as from time to time may be held in one or more accounts maintained
pursuant to the Sale and Servicing Agreement, dated as of December 12, 2002
(as from time to time amended, supplemented or otherwise modified and in
effect, the "Sale and Servicing Agreement"), by and among the Trust, the
Depositor, and Bear Xxxxxxx Asset Backed Funding Inc., as seller (in such
capacity, the "Seller") and Bear Xxxxxxx Asset Receivables Corp., as servicer
(in such capacity, the "Servicer"); (vii) payments and proceeds with respect
to the Receivables held by the Servicer; (viii) all property (including the
right to receive Liquidation Proceeds) securing a Receivable (other than a
Receivable repurchased by the Servicer or purchased by the Seller); (ix)
rebates of premiums and other amounts relating to insurance policies and other
items financed under the Receivables in effect as of the Cut-off Date; and (x)
any and all proceeds of the foregoing. THE RIGHTS OF THE TRUST IN THE
FOREGOING PROPERTY OF THE TRUST HAVE BEEN PLEDGED TO THE INDENTURE TRUSTEE TO
SECURE THE PAYMENT OF THE NOTES.
Under the Trust Agreement, there will be distributed on the 15th day of
each month, or if such 15th day is not a Business Day, the next Business Day
(each, a "Payment Date"), commencing December 16, 2002, to the Person in whose
name this Certificate is registered at the close of business on the last day
of the preceding month (in each case, the "Record Date") such
Certificateholder's Certificate Percentage Interest in the amount to be
distributed to Certificateholders on such Payment Date pursuant to the Trust
Agreement.
THE HOLDER OF THIS CERTIFICATE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO
RECEIVE DISTRIBUTIONS ARE SUBORDINATED TO THE RIGHTS OF THE NOTEHOLDERS AS
DESCRIBED IN THE SALE AND SERVICING AGREEMENT, THE INDENTURE AND THE TRUST
AGREEMENT.
A-2
It is the intent of the Depositor, the Servicer and the
Certificateholders that, for purposes of federal income, state and local
franchise and income tax and any other income taxes, the Trust will be
disregarded for tax purposes or treated as a partnership and the
Certificateholders (including the Depositor) will be treated as partners in
that partnership. The Depositor and the other Certificateholders by acceptance
of a Certificate agree to treat, and to take no action inconsistent with the
treatment of, the Certificates for such tax purposes as partnership interests
in the Trust.
Each Certificateholder, by its acceptance of a Certificate, covenants and
agrees that such Certificateholder will not, until after the Notes have been
paid in full, institute against the Trust, or join in any institution against
the Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to the Notes, the Certificates, the Trust Agreement or any of the other Basic
Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee or the Certificate Paying Agent by wire
transfer or check mailed to the Certificateholder of record in the Certificate
Register without the presentation or surrender of this Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the tendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by the Owner Trustee by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the Certificateholder hereof to
any benefit under the Trust Agreement or be valid for any purpose.
This Certificate shall be construed in accordance with the laws of the
State of Delaware and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
A-3
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
WHOLE AUTO LOAN TRUST 2002-1
Dated: December ___, 2002 By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:___________________________________
Authorized Officer
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
Dated: December ___, 2002
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By:___________________________________
Authorized Officer
A-4
[REVERSE OF CERTIFICATE]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Seller, the Servicer, the Administrator, the Owner Trustee
or any Affiliates of any of them other than the Trust and no recourse may be
had against such parties or their assets, except as may be expressly set forth
or contemplated herein, in the Trust Agreement or in the other Basic
Documents. In addition, this Certificate is not guaranteed by any governmental
agency or instrumentality or by any other entity and is limited in right of
payment to certain collections with respect to the Receivables (and certain
other amounts), all as more specifically set forth herein and in the Sale and
Servicing Agreement.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee with the consent
of the Noteholders and the Certificateholders evidencing not less than a
majority of the principal amount of the Notes Outstanding and the Certificate
Percentage Interest, respectively. Any such consent by the holder of this
Certificate shall be conclusive and binding on such Certificateholder and on
all future holders of this Certificate and of any Certificate issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent is made upon this Certificate. The
Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of any of the Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the Transfer of the Certificates are registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Owner Trustee in its
capacity as Certificate Registrar, or by any successor Certificate Registrar,
in Wilmington, Delaware, accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be
issued to the designated transferee.
Certificates are exchangeable for new Certificates evidencing the same
Certificate Percentage Interest, as requested by the Certificateholder
surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The Certificates may be acquired only by an entity that is not, and each
account (if any) for which it is purchasing the Certificates is not (i) an
employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"))
A-5
that is subject to Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code"), that
is subject to Section 4975 of the Code, (iii) a governmental plan, as defined
in Section 3(32) of ERISA, subject to any federal, State or local law which
is, to a material extent, similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code, (iv) an entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (within the meaning of
Department of Labor Regulation 29 C.F.R. ss. 2510.3-101 or otherwise under
ERISA) or (v) a person investing "plan assets" of any such plan (including
without limitation, for purposes of this clause (v), an insurance company
general account, but excluding any entity registered under the Investment
Company Act of 1940, as amended).
In addition, the Certificates may not be acquired by or on behalf of a
Person other than (A) a citizen or resident of the United States, (B) a
corporation or partnership organized in or under the laws of the United
States, any state thereof or the District of Columbia, (C) an estate the
income of which is includible in gross income for United States tax purposes,
regardless of its source, (D) a trust with respect to which a U.S. court is
able to exercise primary supervision over the administration of such trust and
one or more Persons meeting the conditions of this paragraph has the authority
to control all substantial decisions of the trust or (E) a Person not
described in clauses (A) through (D) above who provides the Owner Trustee and
the Depositor with an IRS Form W-8 ECI or W-8BEN (and such other
certifications, representations, or opinions of counsel as may be requested by
the Owner Trustee or the Depositor).
The Trust shall dissolve and windup, (i) upon the maturity or other
liquidation of the last remaining Receivable and the disposition of any
amounts received upon such maturity or liquidation, (ii) upon the payment to
the Noteholders of all amounts required to be paid to them pursuant to the
Indenture, the Sale and Servicing Agreement or Article V hereof, or (iii) upon
the entry of an order for the dissolution of the Trust by a court of competent
jurisdiction.
A-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto_________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
(Please print or type name and address, including postal zip code,
of assignee)
_____________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney to transfer said Certificate on the ______________ books of the
Certificate Registrar, with full power of substitution in the premises.
Dated:___________
*/
---------------------
Signature Guaranteed:
*/
---------------------
*NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
A-7
EXHIBIT B
FORM OF CERTIFICATE OF TRUST
CERTIFICATE OF TRUST OF
WHOLE AUTO LOAN TRUST 2002-1
This Certificate of Trust of WHOLE AUTO LOAN TRUST 2002-1 (the "Trust")
is being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a statutory trust under the Delaware Statutory Trust Act (12
Delaware Code, ss. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed by this Certificate of
Trust is WHOLE AUTO LOAN TRUST 2002-1.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are Wilimington Trust Company, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Trustee
By:
-----------------------------------------
Name:
Title:
B-1
EXHIBIT C
FORM OF TRANSFEROR CERTIFICATE
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust Certificates
Ladies and Gentlemen:
In connection with our disposition of the above-referenced Certificates
(the "Certificates") we certify that (a) we understand that the Certificates
have not been registered under the Securities Act of 1933, as amended (the
"Act"), and are being transferred by us in a transaction that is exempt from
the registration requirements of the Act and (b) we have not offered or sold
any Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action which
would result in, a violation of Section 5 of the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By:______________________________________
Authorized Officer
C-1
EXHIBIT D
FORM OF INVESTMENT LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust Certificates
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced Certificates
(the "Certificates") we certify that (a) we understand that the Certificates
are not being registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws and are being transferred to us in a
transaction that is exempt from the registration requirements of the Act and
any such laws, (b) we are an institutional "accredited investor," as defined
in Rule 501(a)(1), (2), (3) or (7) in Regulation D under the Act, and have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from
the seller concerning the purchase of the Certificates and all matters
relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) we are acquiring the Certificates
for investment for our own account and not with a view to any distribution of
such Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (f) below),
(e) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action that would
result in a violation of Section 5 of the Act or any state securities laws and
(f) we will not sell, transfer or otherwise dispose of any Certificates unless
(1) such sale, transfer or other disposition is made pursuant to an effective
registration statement under the Act and in compliance with any relevant state
securities laws or is exempt from such registration requirements and (2) the
purchaser or transferee of such Certificate has executed and delivered to you
a certificate to substantially the same effect as this certificate and (3) the
purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Amended and Restated Trust dated as of October 26,
2001, between Bear, Xxxxxxx International Limited and Chase Manhattan Bank
USA, National Association, as Owner Trustee.
Very truly yours,
[NAME OF TRANSFEREE]
By:
----------------------------------------
Authorized Officer
D-1
EXHIBIT E
FORM OF RULE 144A LETTER
[DATE]
[Seller]
[Seller Address]
[Owner Trustee]
[Owner Trustee Address]
Re: Whole Auto Loan Trust 2002-1 Certificates
Ladies and Gentlemen:
In connection with our acquisition of the above-referenced
Certificates (the "Certificates") we certify that (a) we understand that the
Certificates are not being registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities laws and are being transferred to
us in a transaction that is exempt from the registration requirements of the
Act and any such laws, (b) we have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the seller concerning the purchase of
the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
we have not, nor has anyone acting on our behalf, offered, transferred,
pledged, sold or otherwise disposed of the Certificates or any interest in the
Certificates, or solicited any offer to buy, transfer, pledge or otherwise
dispose of the Certificates or any interest in the Certificates from any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action that would
constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the Act
or any state securities laws or require registration pursuant thereto, and we
will not act, or authorize any person to act, in such manner with respect to
the Certificates, and (e) we are a "qualified institutional buyer" as that
term is defined in Rule 144A under the Act. We are aware that the sale to us
is being made in reliance on Rule 144A. We are acquiring the Certificates for
our own account or for resale pursuant to Rule 144A and understand that such
Certificates may be resold, pledged or transferred only to a person reasonably
believed to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A.
Very truly yours,
[NAME OF TRANSFEREE]
By:
------------------------------------
Authorized Officer
E-1
APPENDIX A
Definitions and Usage
AA-1
EXECUTION VERSION
Appendix A
DEFINITIONS AND USAGE
The following rules of construction and usage shall be applicable to any
agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any agreement or instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or instrument governed hereby and in
any certificate or other document made or delivered pursuant thereto,
accounting terms not defined in this Appendix or in any such agreement,
instrument, certificate or other document, and accounting terms partly defined
in this Appendix or in any such agreement, instrument, certificate or other
document, to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles as in effect on the
date of such agreement or instrument. To the extent that the definitions of
accounting terms in this Appendix or in any such agreement, instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in an agreement or instrument refer to such agreement or instrument
as a whole and not to any particular provision or subdivision thereof;
references in an agreement or instrument to "Article," "Section" or another
subdivision or to an attachment are, unless the context otherwise requires, to
an article, section or subdivision of or an attachment to such agreement or
instrument; and the term "including" and its variations means "including
without limitation."
The definitions contained in this Appendix are equally applicable to both
the singular and plural forms of such terms and to the masculine as well as to
the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to below or in
any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
Definitions
"Accrued Class A Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class A Noteholders' Monthly Accrued Interest for such
Payment Date and the Class A Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class B Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class B Noteholders' Monthly Accrued Interest for such
Payment Date and the Class B Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class C Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class C Noteholders' Monthly Accrued Interest for such
Payment Date and the Class C Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class D Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class D Noteholders' Monthly Accrued Interest for such
Payment Date and the Class D Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a) of the
Indenture.
"Adjusted Principal Balance" shall mean, as of any date of determination,
(i) if the interest rate per annum set forth on the Receivable is at least
equal to the Minimum Required APR, the Principal Balance of such Receivable
and (ii) if the interest rate per annum set forth on the Receivable is less
than the Minimum Required APR, the present value of all remaining Scheduled
Payments on such Receivable discounted on a monthly basis at the Minimum
Required APR.
"Administration Agreement" shall mean the Administration Agreement, dated
as of December 12, 2002, by and among the Administrator, the Issuer and the
Indenture Trustee.
"Administrator" shall mean Bear Xxxxxxx Investment Products, Inc., in its
capacity as administrator under the Administration Agreement, or any successor
Administrator thereunder.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any Person shall mean 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" shall have meanings correlative to the foregoing.
"Aggregate Servicing Fee" shall mean the aggregate of the Receivables
Servicer Servicing Fee and the Servicing Fee payable to the Servicer and the
Receivables Servicers on each Payment Date, which is equal to the product of
1/12th of 1.02% and the aggregate Principal Balance of the Receivables as of
the first day of the related Collection Period.
"ALF 2002-1" shall mean Auto Loan Finance Trust 2002-1, a Delaware
statutory trust.
"ALF 2002-1 Receivables" shall mean the Receivables listed on Schedule A
to the receivables purchase agreement dated as of December 12, 2002 between
Bear Xxxxxxx Asset Backed Funding Inc., as seller, and Auto Loan Funding Trust
2002-1, as purchaser.
"Amount Financed" shall mean, with respect to a Receivable, the amount
advanced under the Receivable toward the purchase price of the Financed
Vehicle and any related costs.
2
"Annualized Average Monthly Net Loss Rate" shall mean, with respect to
any date of determination, the product of (x) twelve and (y) the average, as
of the Monthly Net Loss Rates for each of the three preceding Collection
Periods. For the purpose of this definition, the "Monthly Net Loss Rate"
means, for the last day of any Collection Period, a fraction expressed as a
percentage, the numerator of which is equal to the sum of all net losses
reported by the Receivables Servicers for that Collection Period and the
denominator of which is equal to the aggregate principal balance of the
Receivables as of the first day of that Collection Period.
"Annual Percentage Rate" or "APR" of a Receivable shall mean the annual
rate of finance charges stated in the Receivable.
"Applicable Tax State" shall mean, as of any date of determination, the
State in which the Owner Trustee maintains its Corporate Trust Office.
"Authenticating Agent" shall have the meaning specified in Section 2.14
of the Indenture or 3.14 of the Trust Agreement, as applicable.
"Authorized Officer" shall mean, (i) with respect to the Issuer, any
officer within the Corporate Trust Office of the Owner Trustee, including any
vice president, assistant vice president, secretary, assistant secretary or
any other officer of the Owner Trustee customarily performing functions
similar to those performed by any of the above designated officers and, for so
long as the Administration Agreement is in full force and effect, any officer
of the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to
the Administration Agreement; and (ii) with respect to the Indenture Trustee
or the Owner Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee or the Owner Trustee, as the case may be, including any vice
president, assistant vice president, secretary, assistant secretary or any
other officer of the Indenture Trustee or the Owner Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject and shall also mean,
with respect to the Owner Trustee, any officer of the Administrator.
"Available Collections" shall mean, for any Payment Date, the sum of the
following amounts with respect to the Collection Period preceding such Payment
Date: (i) all payments collected on the Receivables; (ii) all Liquidation
Proceeds attributable to Receivables which were designated as Defaulted
Receivables in the related Collection Period in accordance with the related
Receivables Servicer's customary servicing procedures; (iii) all Recoveries;
(iv) the Purchase Amount received with respect to each Receivable that became
a Purchased Receivable during such Collection Period; (v) investment earnings,
if any, on funds on deposit in the accounts established in connection with the
Trust, to the extent allocated to the Trust and (vi) partial prepayments of
any refunded item included in the Principal Balance of a Receivable, such as
extended warranty protection plan costs, or physical damage, credit life,
disability insurance premiums, or any partial prepayment which causes a
reduction in the Obligor's periodic payment to an amount below the Scheduled
Payment as of the Cut-off Date; provided, however, that in calculating the
Available Collections the following will be excluded: (a) the servicing fee
payable to each Receivables Servicer from Collections in respect of the
respective
3
Receivables serviced by it; (b) all payments and proceeds (including
Liquidation Proceeds) of any Receivables the Purchase Amount of which has been
included in the Available Collections in a prior Collection Period; (c) any
late fees, prepayment charges or other administrative fees or similar charges
allowed by applicable law, collected or retained by the related Receivables
Servicer during the related Collection Period.
"Bankruptcy Code" shall mean the United States Bankruptcy Code, 11 U.S.C.
101 et seq., as amended.
"Basic Documents" shall mean the Certificate of Trust, the Trust
Agreement, the Sale and Servicing Agreement, the Receivables Purchase
Agreement, the Indenture, the Administration Agreement, the Underwriting
Agreement, the Note Depository Agreement and the other documents and
certificates delivered in connection therewith.
"Book-Entry Note" shall mean a beneficial interest in any of the Class
A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, the Class B
Notes, the Class C Notes and the Class D Notes, in each case issued in
book-entry form.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in the State of New York,
the State of Delaware or the state in which the Corporate Trust Office of the
Indenture Trustee are authorized by law, regulation or executive order to be
closed.
"Certificate Distribution Account" shall mean the account established and
maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Certificateholder" or "holder of a Certificate" shall mean a Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate of Trust" shall mean the Certificate of Trust in the form of
Exhibit B to the Trust Agreement filed for the Trust pursuant to Section
3810(a) of the Statutory Trust Statute.
"Certificate Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.10 of the Trust Agreement and shall initially
be the Owner Trustee.
"Certificate Percentage Interest" shall mean, with respect to a
Certificate, the percentage specified on such Certificate as the Certificate
Percentage Interest, which percentage represents the beneficial interest of
such Certificate in the Issuer. The aggregate Percentage Interest shall be
100%.
"Certificate Register" and "Certificate Registrar" shall have the
respective meanings specified in Section 3.5 of the Trust Agreement.
"Certificates" shall mean the certificates evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form of
Exhibit A to the Trust Agreement; provided, however, that the Owner Trust
Estate has been pledged to the Indenture Trustee to secure payment of the
Notes and that the rights of the Certificateholders to receive distributions
4
on the Certificates are subordinated to the rights of the Noteholders as
described in the Sale and Servicing Agreement, the Indenture and the Trust
Agreement.
"Class" shall mean any one of the classes of Notes.
"Class A Noteholders Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the sum of the Class A-1 Noteholders' Interest
Carryover Shortfall for such Payment Date, the Class A-2 Noteholders' Interest
Carryover Shortfall for such Payment Date, the Class A-3 Noteholders' Interest
Carryover Shortfall for such Payment Date and the Class A-4 Noteholders'
Interest Carryover Shortfall for such Payment Date.
"Class A Noteholders' Monthly Accrued Interest " shall mean, with respect
to any Payment Date, the sum of the Class A-1 Noteholders' Monthly Accrued
Interest for such Payment Date, the Class A-2 Noteholders, Monthly Accrued
Interest for such Payment Date, the Class A-3 Noteholders' Monthly Accrued
Interest for such Payment Date and the Class A-4 Noteholders, Monthly Accrued
Interest for such Payment Date.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to the greater of (a) the Outstanding Amount of
the Class A-1 Notes immediately prior to such Payment Date and (b) an amount
equal to (i) the Outstanding Amount of the Class A Notes immediately prior to
such Payment Date minus (ii) the lesser of (A) 90.20% of the Pool Balance for
such Payment Date and (B) an amount equal to (1) the Pool Balance for such
Payment Date minus (2) the Target Overcollateralization Level for such Payment
Date; provided, however, that, on the Final Scheduled Payment Date of any
Class of Class A Notes, the Class A Principal Payment Amount shall not be less
than the amount that is necessary to pay that class of Class A Notes in full;
and provided, further, that the Class A Principal Payment Amount on any
Payment Date shall not exceed the Outstanding Amount of the Class A Notes on
that Payment Date.
"Class A-1 Final Scheduled Payment Date" shall mean the December 2003
Payment Date.
"Class A-1 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-1 Noteholders' Monthly Interest Payable Amount for the preceding Payment
Date and any outstanding Class A-1 Noteholders' Interest Carryover Shortfall
on such preceding Payment Date exceeds the amount in respect of interest for
the Class A-1 Notes actually paid to the Noteholders of Class A-1 Notes on
such preceding Payment Date, plus interest on the amount of interest due but
not paid to the Class A-1 Noteholders on such preceding Payment Date, to the
extent permitted by law, at the Class A-1 Rate.
"Class A-1 Noteholders' Interest Payable Amount" shall mean, with respect
to any Payment Date, the sum of the Class A-1 Noteholders' Monthly Accrued
Interest for such Payment Date and the Class A-1 Noteholders' Interest
Carryover Shortfall for such Payment Date.
5
"Class A-1 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the prior
Payment Date (or, in the case of the first Payment Date, from and including
the Closing Date) to and including the day immediately prior to such Payment
Date, on the Class A-1 Notes at the Class A-1 Rate on the Outstanding Amount
of the Class A-1 Notes on the immediately preceding Payment Date (or, in the
case of the first Payment Date, the Closing Date), after giving effect to all
payments of principal to the Class A-1 Noteholders on or prior to such
preceding Payment Date. For all purposes of this Agreement and the other Basic
Documents, interest with respect to the Class A-1 Notes shall be computed on
the basis of the actual number of days in the related Interest Period and a
360-day year.
"Class A-1 Note Balance" shall mean, as of any date of determination, the
Initial Class A-1 Note Balance less all amounts distributed to Class A-1
Noteholders on or prior to such date and allocable to principal.
"Class A-1 Noteholder" shall mean the Person in whose name a Class A-1
Note is registered in the Note Register.
"Class A-1 Notes" shall mean the $850,000,000 aggregate initial principal
amount Class A-1 1.42% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-1 to the Indenture.
"Class A-1 Rate" shall mean 1.42% per annum.
"Class A-2 Final Scheduled Payment Date" shall mean the June 2005 Payment
Date.
"Class A-2 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-2 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-2 Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-2 Notes actually paid to the Noteholders of Class A-2 Notes on such
preceding Payment Date, plus interest on the amount of interest due but not
paid to the Class A-2 Noteholders on such preceding Payment Date, to the
extent permitted by law, at the Class A-2 Rate.
"Class A-2 Noteholders' Interest Payable Amount" shall mean, with respect
to any Payment Date, the sum of the Class A-2 Noteholders' Monthly Accrued
Interest for such Payment Date and the Class A-2 Noteholders' Interest
Carryover Shortfall for such Payment Date.
"Class A-2 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-2 Notes at the Class A-2 Rate on the
Outstanding Amount of the Class A-2 Notes on the preceding Payment Date (after
giving effect to all payments of principal on such preceding Payment Date).
For all purposes of this Agreement and the other Basic Documents, interest
with respect to the Class A-2 Notes shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
6
"Class A-2 Noteholder" shall mean the Person in whose name a Class A-2
Note is registered in the Note Register.
"Class A-2 Notes" shall mean the $956,875,000 aggregate initial principal
amount Class A-2 1.88% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-2 to the Indenture.
"Class A-2 Rate" shall mean 1.88% per annum.
"Class A-3 Final Scheduled Payment Date" shall mean the August 2006
Payment Date.
"Class A-3 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-3 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-3 Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-3 Notes actually paid to the Noteholders of Class A-2 Notes on such
preceding Payment Date, plus interest on the amount of interest due but not
paid to the Class A-3 Noteholders on such preceding Payment Date, to the
extent permitted by law, at the Class A-3 Rate.
"Class A-3 Noteholders' Interest Payable Amount" shall mean, with respect
to any Payment Date, the sum of the Class A-3 Noteholders' Monthly Accrued
Interest for such Payment Date and the Class A-3 Noteholders' Interest
Carryover Shortfall for such Payment Date.
"Class A-3 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-3 Notes at the Class A-3 Rate on the
Outstanding Amount of the Class A-3 Notes on the preceding Payment Date (after
giving effect to all payments of principal on such preceding Payment Date).
For all purposes of this Agreement and the other Basic Documents, interest
with respect to the Class A-3 Notes shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
"Class A-3 Noteholder" shall mean the Person in whose name a Class A-3
Note is registered in the Note Register.
"Class A-3 Notes" shall mean $634,550,000 aggregate initial principal
amount Class A-3 2.60% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-3 to the Indenture.
"Class A-3 Rate" shall mean 2.60% per annum.
"Class A-4 Final Scheduled Payment Date" shall mean the April 2009
Payment Date.
"Class A-4 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-4 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-4 Noteholders'
7
Interest Carryover Shortfall on such preceding Payment Date exceeds the amount
in respect of interest for the Class A-4 Notes actually paid to the
Noteholders of Class A-4 Notes on such preceding Payment Date, plus interest
on the amount of interest due but not paid to the Class A-4 Noteholders on
such preceding Payment Date, to the extent permitted by law, at the Class A-4
Rate.
"Class A-4 Noteholders' Interest Payable Amount" shall mean, with respect
to any Payment Date, the sum of the Class A-4 Noteholders' Monthly Accrued
Interest for such Payment Date and the Class A-4 Noteholders' Interest
Carryover Shortfall for such Payment Date.
"Class A-4 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date, on the Class A-4 Notes at the Class A-4 Rate on
the Outstanding Amount of the Class A-4 Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of this Agreement and the other Basic Documents,
interest with respect to the Class A-4 Notes shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
"Class A-4 Noteholder" shall mean the Person in whose name a Class A-4
Note is registered in the Note Register.
"Class A-4 Notes" shall mean the $353,212,000 aggregate initial principal
amount Class A-4 3.04% Asset Backed Notes issued by the Trust under the
Indenture, substantially in the form of Exhibit A-4 to the Indenture.
"Class A-4 Rate" shall mean 3.04% per annum.
"Class B Final Scheduled Payment Date" shall mean the April 2009 Payment
Date.
"Class B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
B Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class B Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
B Notes actually paid to the Noteholders of Class B Notes on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class B Noteholders on such preceding Payment Date, to the extent permitted by
law, at the Class B Rate.
"Class B Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class B Notes at the Class B Rate on the Outstanding
Amount of the Class B Notes preceding Payment Date (after giving effect to all
payments of principal on such preceding Payment Date). For all purposes of
this Agreement and the other Basic Documents, interest with respect to the
Class B Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
8
"Class B Noteholder" shall mean the Person in whose name a Class B Note
is registered in the Note Register.
"Class B Noteholders' Interest Payable Amount" shall mean, with respect
to any Payment Date, the sum of the Class B Noteholders' Monthly Accrued
Interest for such Payment Date and the Class B Noteholders' Interest Carryover
Shortfall for such Payment Date.
"Class B Notes" shall mean the $72,777,000 aggregated initial principal
amount Class B 2.91% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit B to the Indenture.
"Class B Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date) and (ii) the Outstanding Amount
of the Class B Notes immediately prior to such Payment Date minus (b) the
lesser of (i) 93.70% of the Pool Balance for such Payment Date and (ii) an
amount equal to (A) the Pool Balance for such Payment Date minus (B) the
Target Overcollateralization Level for such Payment Date; provided, however,
that, on the Class B Final Scheduled Payment Date, the Class B Principal
Payment Amount shall not be less than the amount that is necessary to pay the
Class B Notes in full; and provided, further, that the Class B Principal
Payment Amount on any Payment Date shall not exceed the Outstanding Amount of
the Class B Notes on that Payment Date.
"Class B Rate" shall mean 2.91% per annum.
"Class C Final Scheduled Payment Date" shall mean the April 2009 Payment
Date.
"Class C Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
C Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class C Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
C Notes actually paid to the Noteholders of Class C Notes on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class C Noteholders on such preceding Payment Date, to the extent permitted by
law, at the Class C Rate.
"Class C Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class C Notes at the Class C Rate on the Outstanding
Amount of the Class C Notes on the preceding Payment Date (after giving effect
to all payments of principal on such preceding Payment Date). For all purposes
of this Agreement and the other Basic Documents, interest with respect to the
Class C Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class C Noteholder" shall mean the Person in whose name a Class C Note
is registered in the Note Register.
9
"Class C Noteholders' Interest Payable Amount" shall mean, with respect
to any Payment Date, the sum of the Class C Noteholders' Monthly Accrued
Interest for such Payment Date and the Class C Noteholders' Interest Carryover
Shortfall for such Payment Date.
"Class C Notes" shall mean the $29,110,000 aggregate initial principal
amount Class C 4.29% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit C to the Indenture.
"Class C Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date), (ii) the Outstanding Amount of
the Class B Notes (after taking into account distribution of the Class B
Principal Payment Amount on such Payment Date) and (iii) the Outstanding
Amount of the Class C Notes immediately prior to such Payment Date minus (b)
the lesser of (i) 95.10% of the Pool Balance for such Payment Date and (ii) an
amount equal to (A) the Pool Balance for such Payment Date minus (B) the
Target Overcollateralization Level for such Payment Date; provided, however,
that, on the Class C Final Scheduled Payment Date, the Class C Principal
Payment Amount shall not be less than the amount that is necessary to pay the
Class C Notes in full; and provided, further, that the Class C Principal
Payment Amount on any Payment Date shall not exceed the Outstanding Amount of
the Class C Notes on that Payment Date.
"Class C Rate" shall mean 4.29% per annum.
"Class D Final Scheduled Payment Date" shall mean the April 2009 Payment
Date.
"Class D Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
D Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class D Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
D Notes actually paid to the Noteholders of Class D Notes on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class D Noteholders on such preceding Payment Date, to the extent permitted by
law, at the Class D Rate.
"Class D Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class D Notes at the Class D Rate on the Outstanding
Amount of the Class D Notes on the preceding Payment Date (after giving effect
to all payments of principal on such preceding Payment Date). For all purposes
of this Agreement and the other Basic Documents, interest with respect to the
Class D Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class D Noteholder" shall mean the Person in whose name a Class D Note
is registered in the Note Register.
10
"Class D Noteholders' Interest Payable Amount" shall mean, with respect
to any Payment Date, the sum of the Class D Noteholders' Monthly Accrued
Interest for such Payment Date and the Class D Noteholders' Interest Carryover
Shortfall for such Payment Date.
"Class D Notes" shall mean $72,777,000 aggregate initial principal amount
Class D 6.00% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit D to the Indenture.
"Class D Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount (which will not be less than zero) equal to (a) 100%
of the Regular Principal Allocation for such Payment Date minus (b) an amount
equal to the sum of (i) the Class A Principal Payment Amount for such Payment
Date, (ii) the Class B Principal Payment Amount for such Payment Date and
(iii) the Class C Principal Payment Amount for such Payment Date; provided,
however, that, on the Class D Final Scheduled Payment Date, the Class D
Principal Payment Amount shall not be less than the amount that is necessary
to pay the Class D Notes in full; and provided, further, that the Class D
Principal Payable Amount on any Payment Date shall not exceed the Outstanding
Amount of the Class D Notes on that Payment Date.
"Class D Rate" shall mean 6.00% per annum.
"Clearance System" shall have the meaning specified in Section 2.2 of the
Indenture.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" shall mean December 12, 2002.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause of
the Indenture.
"Collection Account" shall mean the account or accounts established and
maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Collection Period" shall mean, with respect to the first Payment Date,
the period from and including the Cut-off Date to and including November 30,
2002 and, with respect to each subsequent Payment Date, the calendar month
preceding the calendar month in which the Payment Date occurs.
"Collections" shall mean all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Commission" shall mean the Securities and Exchange Commission.
11
"Controlling Class" shall mean (i) if the Class A Notes have not been
paid in full, the Class A Notes, (ii) if the Class A Notes have been paid in
full and Class B Notes remain Outstanding, the Class B Notes, (iii) if the
Class A Notes and the Class B Notes have been paid in full and Class C Notes
remain Outstanding, the Class C Notes, and (iv) if the Class A Notes, the
Class B Notes and the Class C Notes have been paid in full, the Class D Notes.
"Corporate Trust Office" shall mean, (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
0000 Xxxxxx Xxxxxx Xxxxx, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000 or at such other address as the Owner Trustee may designate from
time to time by notice to the Certificateholders and the Depositor, or the
principal corporate trust office of any successor Owner Trustee (the address
of which the successor Owner Trustee will notify the Certificateholders and
the Depositor); and (ii) with respect to the Indenture Trustee, the principal
corporate trust office of the Indenture Trustee located at 0 Xxx Xxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: ITS Structured Finance,
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Noteholders and the Issuer, or the principal corporate
trust office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and the Issuer).
"Cut-off Date" shall mean November 1, 2002.
"Data Administration Agreement" shall mean the Data Administration
Agreement dated as of December 12, 2002 among the Servicer, the Depositor, the
Data Administrator and the Indenture Trustee.
"Data Administrator" shall mean Systems & Services Technologies, Inc., in
its capacity as data administrator under the Data Administration Agreement, or
any successor thereunder.
"DCS" shall mean Daimler Chrysler Services North America LLC, a Michigan
limited liability company, and its successors.
"DCS Deposit Account" shall mean the Deposit Account as defined in the
DCS Servicing Agreement. Such account is account no. 160930.1 at JPMorgan
Chase Bank in New York, New York.
"DCS Servicing Agreement" shall mean the Servicing and Administration
Agreement Dated as of October 26, 2001 between XXXX, DCS, as servicer, and
Bear Xxxxxxx Investment Products, Inc.
"DCS Receivables" shall mean the Receivables listed in Schedule A to the
Sale and Servicing Agreement as DCS Receivables, which Receivables were sold
by DCS to XXXX and then by XXXX to the Depositor.
"Dealer" shall mean a dealer who sold a Financed Vehicle and who
originated and sold the related Receivable, directly or indirectly, to DCS,
Ford Credit or Volvo Finance.
"Default" shall mean any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
12
"Defaulted Receivable" shall mean a Receivable that the related
Receivable Servicer determines is unlikely to be paid in full.
"Definitive Certificates" shall have the meaning specified in Section
3.12 of the Trust Agreement.
"Definitive Notes" shall have the meaning specified in Section 2.11 of
the Indenture.
"Deposit Account Agreement" shall mean, individually, any of (i) the
Deposit Account Agreement dated as of December 12, 2002 by and between the
XXXX, XXXX 2002-1, the Servicer and JPMorgan Chase Bank; (ii) the Deposit
Account Agreement dated as of December 12, 2002 by and between ALF 2002-1,
XXXX 2002-1, the Servicer and JPMorgan Chase Bank; and (iii) the Deposit
Account Agreement dated as of December 12, 2002 by and between XXXX 2002-1,
the Servicer and JPMorgan Chase Bank. "Deposit Account Agreements" shall mean,
collectively, the agreements described in clauses (i) through (iii) above.
"Depositor" shall mean Bear Xxxxxxx Asset Backed Funding Inc., a Delaware
corporation and its successors and permitted assigns.
"Depository Institution" shall mean JPMorgan Chase Bank as the depository
institution at which the DCS Deposit Account, the Ford Credit Deposit Account
and the Volvo Finance Deposit Account are maintained.
"Determination Date" shall mean, with respect to any Collection Period,
the Business Day immediately preceding the Payment Date following such
Collection Period.
"Eligible Deposit Account" shall mean either (i) a segregated account
with an Eligible Institution or (ii) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the U.S. or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each
Rating Agency in one of its generic rating categories which signifies
investment grade.
"Eligible Institution" shall mean either (i) the corporate trust
department of the Indenture Trustee or the related Trustee, as applicable;
(ii) a depository institution organized under the laws of the U.S. or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (1) which has either (A) a long-term unsecured debt rating of
at least "AA-" by Standard & Poor's and "Baa3" by Moody's or (B) a short-term
unsecured debt rating or certificate of deposit rating of "A-1+" by Standard &
Poor' and "P-1" by Moody's and (2) whose deposits are insured by the Federal
Deposit Insurance Corporation or (iii) any depository institution or trust
company in respect of which the Rating Agency Condition is satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall have the meaning specified in Section 5.1 of the
Indenture.
13
"Event of Servicing Termination" shall mean an event specified in Section
7.1 of the Sale and Servicing Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Date" shall mean January 21, 2003.
"Executive Officer" shall mean, with respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation and, with respect to any partnership, any
general partner thereof.
"Expenses" shall have the meaning assigned to such term in Section 7.2 of
the Trust Agreement.
"Final Scheduled Payment Date" shall mean, with respect to (i) the Class
A-1 Notes, the Class A-1 Final Scheduled Payment Date, (ii) the Class A-2
Notes, the Class A-2 Final Scheduled Payment Date, (iii) the Class A-3 Notes,
the Class A-3 Final Scheduled Payment Date, (iv) the Class A-4 Notes, the
Class A-4 Final Scheduled Payment Date, (v) the Class B Notes, the Class B
Final Scheduled Payment Date, (vi) the Class C Notes, the Class C Final
Scheduled Payment Date, and (vii) the Class D Certificates, the Class D Final
Scheduled Payment Date.
"Financed Vehicle" shall mean a new or used automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"First Allocation of Principal" shall mean, with respect to any Payment
Date, the excess, if any, of (x) the aggregate Outstanding Amount of the Class
A Notes (as of the day immediately preceding such Payment Date) over (y) the
Pool Balance for such Payment Date.
"Ford Credit" shall mean Ford Motor Credit Company, a Delaware
corporation, and its successors.
"Ford Credit Deposit Account" shall mean the Collection Account as
defined in the Ford Credit Servicing Agreement. Such account is account no.
00000000.1 at JPMorgan Chase Bank.
"Ford Credit Receivables" shall mean the Receivables listed in Schedule A
to the Sale and Servicing Agreement as the Ford Credit Receivables, which
Receivables were sold by Ford Credit to the Depositor.
"Ford Credit Servicer Report" shall mean the Monthly Servicer Report as
defined in the Ford Credit Servicing Agreement, but based solely on the Ford
Credit Receivables.
"Ford Credit Servicing Agreement" shall mean the Servicing Agreement
dated as of November 1, 2002 between the Depositor, as purchaser, and Ford
Credit, as servicer.
"Global Note" shall have the meaning specified in Section 2.2 of the
Indenture.
14
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and to xxxxx x xxxx upon
and a security interest in and right of set-off against, and to deposit, set
over and confirm pursuant to the Indenture. A Grant of the Collateral or of
any other agreement or instrument shall include all rights, powers and options
(but none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
monies payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2 of the Trust Agreement.
"Indenture" shall mean the Indenture, dated as of December 12, 2002, by
and between the Trust and the Indenture Trustee.
"Indenture Trustee" shall mean JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee
under the Indenture, or any successor Indenture Trustee under the Indenture.
"Indenture Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Independent" shall mean, when used with respect to any specified Person,
that such Person (a) is in fact independent of the Issuer, any other obligor
on the Notes, the Seller and any Affiliate of any of the foregoing Persons,
(b) does not have any direct financial interest or any material indirect
financial interest in the Issuer, any such other obligor, the Depositor or any
Affiliate of any of the foregoing Persons and (c) is not connected with the
Issuer, any such other obligor, the Depositor or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer
has read the definition of "Independent" in the Indenture and that the signer
is Independent within the meaning thereof.
"Insolvency Event" shall mean, with respect to any Person, (i) the making
of a general assignment for the benefit of creditors, (ii) the filing of a
voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition
15
or answer seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or
regulation, (v) the filing by such Person of an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against such Person in any proceeding specified in (vii) below, (vi) seeking,
consent to or acquiescing in the appointment of a trustee, receiver or
liquidator of such Person or of all or any substantial part of the assets of
such Person or (vii) the failure to obtain dismissal within 60 days of the
commencement of any proceeding against such Person seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, or the entry of any order
appointing a trustee, liquidator or receiver of such Person or of such
Person's assets or any substantial portion thereof.
"Interest Period" shall mean, with respect to any Payment Date (i) with
respect to the Class A-1 Notes, from and including the Closing Date (in the
case of the first Payment Date) or from and including the most recent Payment
Date on which interest has been paid to but excluding the following Payment
Date and (ii) with respect to the Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class B Notes, Class C Notes and Class D Notes, from and including the
Closing Date (in the case of the first Payment Date) or from and including the
15th day of the calendar month preceding each Payment Date to but excluding
the 15th day of the calendar month of such Payment Date. Interest with respect
to the Class A-1 Notes will be computed on the basis of the actual number of
days in the related Interest Period. Interest with respect to the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes, the Class C Notes and the Class D Notes will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
"Investor Report" shall mean the Report prepared by the Servicer pursuant
to Section 3.8 of the Sale and Servicing Agreement containing, among other
things, the information set forth in Section 4.7 of the Sale and Servicing
Agreement.
"IRS" shall mean the Internal Revenue Service.
"Issuer" shall mean the Trust unless a successor replaces it and,
thereafter, shall mean the successor.
"Issuer Order" and "Issuer Request" shall mean a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Lien" shall mean a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than, in respect of a Receivable, tax liens,
mechanics' liens, and any liens which attach to the respective Receivable by
operation of law.
"Liquidated Receivable" shall mean a Receivable with respect to which the
earliest of the following shall have occurred: (i) the related Financed
Vehicle has been repossessed and liquidated, (ii) the Servicer (or the related
Receivables Servicer) has determined in accordance with its (or the related
Receivables Servicer's) collection policies that all amounts that it expects
to receive with respect to the Receivable have been received or (iii) the end
of the Collection Period in which the Receivable becomes 180 days or more past
due.
16
"Liquidation Proceeds" shall mean with respect to any Receivable (a)
insurance proceeds received by the related Receivables Servicer and (b) monies
collected by the related Receivables Servicer from whatever source, including
but not limited to proceeds of Financed Vehicles after repossession, on a
Defaulted Receivable, net of any payments required by law to be remitted to
the Obligor.
"Memorandum" shall mean the Private Placement Memorandum dated December
4, 2002, relating to Class D Notes.
"Minimum Required APR" shall mean a rate per annum equal to 6.00%.
"Monthly Data File" shall mean (i) with respect to the DCS Receivables,
the monthly data tape delivered under in the DCS Servicing Agreement, (ii)
with respect to the Ford Credit Receivables, the Monthly Data File as defined
in the Ford Credit Servicing Agreement and (iii) with respect to the Volvo
Finance Receivables, the Monthly Data File as defined in the Volvo Finance
Servicing Agreement.
["Monthly Receivables Tape" shall mean a computer tape or disk containing
the information about the Receivables necessary to prepare the written
statements to be furnished by the Owner Trustee to the Certificateholders
pursuant to Section 3.8 of the Sale and Servicing Agreement and by the
Indenture Trustee to the Noteholders pursuant to Section 3.8 of the Sale and
Servicing Agreement.]
"Monthly Remittance Condition" shall mean, with respect to the Servicer,
Ford Credit or Volvo Finance, either (a) the Servicer or such Receivables
Servicer, as applicable, obtains a short-term rating from Standard & Poor's
and Moody's of A-1 and P-1, respectively, or (b) the Servicer or such
Receivables Servicer, as applicable, provides the Indenture Trustee with a
letter from each Rating Agency to the effect that the current ratings assigned
to the Notes by such Rating Agency will not be adversely affected by the
remittance of Collections on a monthly, rather than a daily, basis.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Note Depositary Agreement" shall mean collectively (i) the Letter of
Representations, dated as of December 12, 2002 by and among the Issuer, the
Indenture Trustee, as agent and The Depository Trust Company regarding the
Offered Notes and (ii) the Letter of Representations, dated as of December 12,
2002 by and among the Issuer, the Indenture Trustee, as agent and The
Depository Trust Company regarding the Class D Notes.
"Note Depository" shall mean The Depository Trust Company or any
successor depository.
"Noteholder" or "holder of a Note" shall mean the Person in whose name a
Note is registered on the Note Register.
"Note Interest Rate" shall mean the Class A-1 Rate, the Class A-2 Rate,
the Class A-3 Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate or
the Class D Rate, as applicable.
17
"Note Owner" shall mean, with respect to any Book-Entry Note, the Person
who is the beneficial owner of such Book-Entry Note, as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Note Paying Agent" shall mean the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 of the Indenture and is authorized by the Issuer to make payments
to and distributions from the Collection Account (including the Principal
Distribution Account), including payment of principal of or interest on the
Notes on behalf of the Issuer.
"Note Pool Factor" shall mean, with respect to each Class of Notes as of
the close of business on the last day of a Collection Period, a nine-digit
decimal figure equal to the outstanding principal balance of such Class of
Notes (after giving effect to any reductions thereof to be made on the
immediately following Payment Date) divided by the original outstanding
principal balance of such Class of Notes. The Note Pool Factor will be
1.000000000 as of the Closing Date; thereafter, the Note Pool Factor will
decline to reflect reductions in the outstanding principal amount of such
Class of Notes.
"Note Register" and "Note Registrar" shall have the respective meanings
specified in Section 2.5 of the Indenture.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and the
Class D Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or co-purchasers of
the Financed Vehicle or any other Person who owes payments under the
Receivable.
"Offered Notes" shall mean, collectively, the Class A Notes, the Class B
Notes, and the Class C Notes.
"Officer's Certificate" shall mean (i) with respect to the Trust, a
certificate signed by any two Authorized Officers of the Trust and (ii) with
respect to the Depositor or the Servicer, a certificate signed by the chairman
of the board, the president, any executive or senior vice president, any vice
president, the treasurer or the controller of the Depositor or the Servicer,
as applicable.
"Opinion of Counsel" shall mean a written opinion of counsel which
counsel shall be acceptable to the Indenture Trustee, the Owner Trustee or the
Rating Agencies, as applicable.
"Optional Purchase Percentage" shall mean 10%.
"Original Pool Balance" shall mean an amount equal to the aggregate
Adjusted Principal Balance, as of the Cutoff Date, of the Receivables, which
shall be $2,911,257,925.53.
"Outstanding" shall mean with respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture, as applicable, except:
18
(a) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the
Indenture Trustee or any Note Paying Agent in trust for the
Noteholders of such Notes (provided, however, that if such Notes are
to be prepaid, notice of such prepayment has been duly given
pursuant to the Indenture or provision for such notice has been
made, satisfactory to the Indenture Trustee); and
(c) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee or the Note Registrar,
as applicable, is presented that any such notes are held by a bona
fide purchaser;
provided, that in determining whether the holders of Notes evidencing the
requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent, or waiver under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Depositor,
the Servicer or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee, shall be protected in relying on any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes that a Responsible Officer of the Indenture Trustee knows to be so owned
shall be so disregarded; provided, however, if the Issuer, any other obligor
upon the Notes, the Depositor, the Servicer or any Affiliate of any of the
foregoing Persons owns an entire Class of Notes, such Notes shall be deemed to
be Outstanding. Notes owned by the Issuer, any other obligor upon the Notes,
the Depositor, the Servicer or any Affiliate of any of the foregoing Persons
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Depositor, the Servicer or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean, as of any date of determination and as
to any Notes, the aggregate principal amount of such Notes Outstanding as of
such date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as Owner Trustee under
the Trust Agreement, or any successor Owner Trustee under the Trust Agreement.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in, to and under the property and rights assigned to the Trust pursuant
to Article II of the Sale and Servicing Agreement.
"Participant" shall mean a participant in or member of the Note
Depository.
"Payment Date" shall mean the fifteenth (15th) day of each calendar month
or, if such day is not a Business Day, the next succeeding Business Day.
19
"Percentage Interest" shall mean, with respect to a Certificate, the
individual percentage interest of such Certificate, which shall be specified
on the face thereof, in the distributions on the Certificates. The sum of the
Percentage Interests for all Certificates shall be 100%.
"Permitted Investments" shall mean, on any date of determination,
book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form with maturities not exceeding the
Business Day preceding the next Payment Date which evidence:
(a) direct non-callable obligations of, and obligations fully
guaranteed as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under
the laws of the United States of America or any state thereof (or
any domestic branch of a foreign bank) and subject to supervision
and examination by federal or State banking or depository
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations
(other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or trust
company) thereof shall have a credit rating from each of the Rating
Agencies in the highest investment category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each
of the Rating Agencies in the highest investment category granted
thereby (including funds for which the Indenture Trustee or the
Owner Trustee or any of their respective Affiliates is investment
manager or advisor);
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a direct non-callable obligation of, or fully guaranteed by, the
United States of America or any agency or instrumentality thereof
the obligations of which are backed by the full faith and credit of
the United States of America, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (b); and
(g) any other investment with respect to which the Rating
Agency condition is satisfied.
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
20
"Plan" shall mean an employee benefit plan (as defined in section 3(3) of
ERISA) that is subject to Title I of ERISA, a plan (as defined in section
4975(e)(1) of the Code) and any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity or otherwise.
"Pool Balance" shall mean, with respect to any Payment Date, an amount
equal to the aggregate Adjusted Principal Balance of the Receivables at the
end of the related Collection Period, after giving effect to all payments of
principal received from Obligors and Purchase Amounts to be remitted for the
related Collection Period.
"Pool Factor" as of the last day of a Collection Period shall mean a
nine-digit decimal figure equal to the Pool Balance at that time divided by
the Original Pool Balance.
"Predecessor Note" shall mean, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note and, for purposes of this definition, any Note
authenticated and delivered under Section 2.6 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" shall mean with respect to a prepayment of the Notes
pursuant to Section 10.1 of the Indenture, the Payment Date specified by
Servicer or the Issuer pursuant to Section 10.1 of the Indenture.
"Prepayment Price" shall mean in the case of a Class of Notes to be
prepaid, an amount equal to the unpaid principal amount of such Class of Notes
plus accrued and unpaid interest thereon at the applicable Note Interest Rate
plus interest on any overdue interest at the applicable Note Interest Rate (to
the extent lawful) to but excluding the Prepayment Date.
"Principal Balance" shall mean, with respect to any Receivable, as of the
related date of determination, the Amount Financed minus an amount equal to,
as of the close of business on the last day of the related Collection Period,
that portion of all amounts received on or prior to such day with respect to
such Receivable and allocable to principal.
"Principal Distribution Account" shall mean the administrative
sub-account of the Collection Account established and maintained as such
pursuant to Section 4.1 of the Sale and Servicing Agreement.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Prospectus" shall have the meaning specified in the Underwriting
Agreement.
"Prospectus Supplement" shall have the meaning specified in the
Underwriting Agreement.
"Purchase Amount" with respect to a Purchased Receivable shall mean the
amount required to pay such Purchased Receivable in full.
21
"Purchased Receivable" shall mean a Receivable purchased as of the close
of business on the last day of the respective Collection Period by the
Servicer pursuant to Section 3.6 of the Sale and Servicing Agreement or by the
Depositor or DCS pursuant to Section 2.3 of the Sale and Servicing Agreement.
"Qualified Institutional Buyer" shall mean a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act.
"Rating Agency" shall mean each of the nationally recognized statistical
rating organizations designated by the Depositor to provide a rating on the
Notes which is then rating such Notes. If no such organization or successor is
any longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Indenture
Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any action, that
each of the Rating Agencies shall have notified the Servicer, the Depositor,
the Owner Trustee and the Indenture Trustee in writing that such action will
not result in a reduction or withdrawal of the then current rating of any of
the Notes.
"Receivables" shall mean the motor vehicle retail installment sales
contract listed on Schedule A to the Sale and Servicing Agreement and all
proceeds thereof and payments thereunder.
"Receivable Files" shall mean the documents specified in Section 2.4 of
the Sale and Servicing Agreement.
"Receivables Purchase Agreements" shall mean, collectively, the (i)
Receivables Purchase Agreement, dated as of December 12, 2002, by and between
Whole Auto Loan Trust, as seller, and the Depositor, as purchaser, (ii) the
Purchase and Sale Agreement, dated as of November 1, 2002, by and between Ford
Motor Credit Company, as seller, and the Depositor, as purchaser and (iii)
Purchase and Sale Agreement, dated as of November 1, 2002, by and between
Volvo Finance North America, Inc., as seller, and the Depositor, as purchaser.
"Receivables Servicer" shall mean (i) DCS with respect to the DCS
Receivables, (ii) Ford Credit with respect to the Ford Credit Receivables and
(iii) Volvo Finance with respect to the Volvo Finance Receivables.
"Receivables Servicer Servicing Fee" shall mean, with respect to a
Collection Period and a Receivables Servicer, the fee payable to such
Receivables Servicer for services rendered during such Collection Period,
which shall equal one-twelfth of the Receivables Servicing Fee Rate multiplied
by the aggregate Principal Balance of those Receivables serviced by such
Receivables Servicer as of the first day of such Collection Period.
"Receivables Servicing Agreement" shall mean the DCS Servicing Agreement,
the Ford Credit Servicing Agreement or the Volvo Finance Servicing Agreement.
22
"Receivables Servicing Fee Rate" shall mean 1.00%.
"Record Date" shall mean, with respect to any Payment Date or Prepayment
Date and any Book-Entry Security, the close of business on the day prior to
such Payment Date or Prepayment Date or, with respect to any Definitive Note
or Definitive Certificate, the last day of the month preceding the month in
which such Payment Date or Prepayment Date occurs.
"Recoveries" shall mean, with respect to any Collection Period, all
amounts received by the Servicer with respect to any Defaulted Receivable
during any Collection Period following the Collection Period in which such
Receivable became a Defaulted Receivable, net of any fees, costs and expenses
incurred by the related Receivables Servicer and the Servicer in connection
with the collection of such Receivable and any payments required by law to be
remitted to the Obligor.
"Registered Noteholder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Registration Statement" shall mean Registration Statement No. 333-99207
filed by the Depositor with the Securities and Exchange Commission in the form
in which it became effective on November 15, 2002.
"Regular Principal Allocation" shall mean, with respect to any Payment
Date, the excess, if any, of the aggregate Outstanding Amount of the Notes as
of the day immediately preceding such Payment Date over (a) the Pool Balance
at the end of the related Collection Period minus (b) the Target
Overcollateralization Level for such Payment Date; provided that the Regular
Principal Allocation shall not exceed the aggregate Outstanding Amount of the
Notes; provided further that the Regular Principal Allocation on or after the
Final Scheduled Payment Date of any Class shall not be less than the amount
that is necessary to reduce the Outstanding Amount of such Class to zero.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Note" shall have the meaning specified in Section
2.2 of the Indenture.
"Related Agreements" shall have the meaning specified in the recitals to
the Administration Agreement.
"Representative" shall mean Bear, Xxxxxxx & Co. Inc., as representative
of the several Underwriters.
"Repurchase Event" shall have the meaning specified in Section 7.02 of
the Receivables Purchase Agreement.
"Rule 144A Global Note" shall have the meaning specified in Section 2.2
of the Indenture.
23
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of December 12, 2002, by and between the Trust, the
Depositor, as seller, and Bear Xxxxxxx Asset Receivables Corp., as servicer.
"Scheduled Payment" shall mean, for any Receivable, the scheduled monthly
payment amount indicated in such Receivable as required to be paid by the
Obligor in such Collection Period (without giving effect to deferments of
payments pursuant to Section 3.2 of the Sale and Servicing Agreement or any
rescheduling in any insolvency or similar proceedings).
"Schedule of Receivables" shall mean the list of Receivables attached as
Schedule A to the Sale and Servicing Agreement and the Indenture (which
Schedules may be in the form of microfiche, disk or other means acceptable to
the Trustee).
"Second Allocation of Principal" shall mean, with respect to any Payment
Date, an amount equal to (i) the excess, if any, of (x) the aggregate
Outstanding Amount of the Class A Notes and the Class B Notes (as of the day
immediately preceding such Payment Date) over (y) the Pool Balance for such
Payment Date minus (ii) any amount deposited into the Principal Distribution
Amount as part of the First Allocation of Principal for such Payment Date.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities" shall mean the Notes and the Certificates, collectively.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall mean Whole Auto Loan Trust, Ford Motor Credit Company and
Volvo Financing North America, Inc. as a seller of a portion of the
Receivables under the applicable Receivables Purchase Agreement and each
successor to thereto.
"Servicer" shall mean Bear Xxxxxxx Asset Receivables Corp. as the
servicer of the Receivables under the Sale and Servicing Agreement, and each
successor to thereto (in the same capacity) pursuant to Section 7.1 of the
Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to a Collection Period, the fee
payable to the Servicer for services rendered during such Collection Period,
which shall be equal to one-twelfth of the Servicing Fee Rate multiplied by
the aggregate Principal Balance of the Receivables as of the first day of the
Collection Period.
"Servicing Fee Rate" shall mean 0.02% per annum.
"Simple Interest Method" shall mean the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the amount accrued from the
date of the preceding payment to the date of the current payment.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. or its successor in interest.
24
"State" shall mean any state or commonwealth of the United States of
America, or the District of Columbia.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code ss. 3801 et seq., as amended.
"Successor Servicer" shall mean an institution appointed as successor
Servicer pursuant to Section 7.1 of the Sale and Servicing Agreement.
"Target Overcollateralization Level" shall mean, as of any Payment Date,
the amount equal to the greater of (x) 1.4% of the Pool Balance and (y)
$29,110,805.74.
"Temporary Regulation S Global Note" shall have the meaning specified in
Section 2.2 of the Indenture.
"Third Allocation of Principal" shall mean, with respect to any Payment
Date, an amount equal to (i) the excess, if any, of (x) the aggregate
Outstanding Amount of the Class A Notes, the Class B Notes and the Class C
Notes (as of the day immediately preceding such Payment Date) over (y) the
Pool Balance for such Payment Date minus (ii) any amount deposited into the
Principal Distribution Account as part of the First Allocation of Principal or
the Second Allocation of Principal for such Payment Date.
"Transfer Date" shall mean the Closing Date.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean Whole Auto Loan Trust 2002-1, a Delaware statutory
trust governed by the Trust Agreement.
"Trust Accounts" shall mean the accounts specified in Section 4.1 of the
Sale and Servicing Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement of
the Trust dated as of December 12, 2002 by and among the Depositor and the
Owner Trustee, as amended and/or restated from time to time.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of
1939, as amended, unless otherwise specifically provided.
"Trustee Officer" shall mean, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee with direct
responsibility for the administration of the Indenture and the other Basic
Documents on behalf of the Indenture Trustee and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject
and, with respect to the Owner Trustee, any officer within the Corporate Trust
Office of the Owner Trustee with direct
25
responsibility for the administration of the Trust Agreement and the other
Basic Documents on behalf of the Owner Trustee.
"Trust Property" shall mean, collectively, (i) the Receivables; (ii)
monies received thereunder on or after the Cut-off Date; (iii) the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of the Issuer in the Financed Vehicles;
(iv) rights to receive proceeds with respect to the Receivables from claims on
any theft, physical damage, credit life, credit disability, or other insurance
policies covering Financed Vehicles or Obligors; (v) all of the Seller's
rights to the Receivable Files; (vi) the Trust Accounts and all amounts,
securities, investments, investment property and other property deposited in
or credited to any of the foregoing, all security entitlements relating to the
foregoing and all proceeds thereof; (vii) payments and proceeds with respect
to the Receivables held by the Servicer; (viii) all property (including the
right to receive Liquidation Proceeds) securing a Receivable (other than a
Receivable repurchased by the Servicer or purchased by the Depositor); (ix)
rebates of premiums and other amounts relating to insurance policies and other
items financed under the Receivables in effect as of the Cut-off Date; and (x)
all present and future claims, demands, causes of action and chooses in action
in respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to payment
of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing.
"UCC" shall mean the Uniform Commercial Code as in effect in any relevant
jurisdiction.
"Underwriters" shall mean the underwriters named in Schedule I to the
Underwriting Agreement.
"Underwriting Agreement" shall mean the Underwriting Agreement, dated
December 4, 2002 between the Depositor and the Representative.
"Underwritten Securities" shall mean the Class A Notes, Class B Notes and
Class C Notes.
"U.S. Person" shall have the meaning ascribed to such term in Regulation
S.
"Volvo Finance" shall mean Volvo Finance North America, Inc., a Delaware
corporation, and its successors.
"Volvo Finance Deposit Account" shall mean the Collection Account as
defined in the Volvo Finance Servicing Agreement. Such account is account no.
00000000.1 at JPMorgan Chase Bank.
"Volvo Finance Servicing Agreement" shall mean the Servicing Agreement
dated as of November 1, 2002 between the Depositor, as purchaser, and Volvo
Finance, as servicer.
26
"Volvo Finance Receivables" shall mean the Receivables listed on Schedule
A to the Servicing Agreement as the Volvo Finance Receivables, which were sold
by Volvo Finance to the Depositor.
"XXXX" shall mean Whole Auto Loan Trust, a Delaware statutory trust.
"XXXX Receivables" shall mean the receivables retained by XXXX and not
sold to the Depositor.
"XXXX Servicer Report" shall mean a Servicer Report as defined in the
XXXX Servicing Agreement, but based solely on XXXX Receivables.
"XXXX 2002-1" shall mean Whole Auto Loan Trust 2002-1, a Delaware
statutory trust.
"XXXX 2002-1 Receivables" shall mean the Receivables listed as XXXX
2002-1 Receivables, which Receivables were sold by XXXX to the Depositor and
then by the Depositor to the Trust.
27
