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EXHIBIT 4.7
FIRST SECURITY BANK, N.A.
AS SELLER AND SERVICER,
AND
BANKERS TRUST COMPANY
AS TRUSTEE
ON BEHALF OF THE CERTIFICATEHOLDERS
AND AS COLLATERAL AGENT
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POOLING AND SERVICING AGREEMENT
DATED AS OF _______________
FIRST SECURITY AUTO GRANTOR TRUST_____-___
____% ASSET BACKED CERTIFICATES, CLASS A
____% ASSET BACKED CERTIFICATES, CLASS B
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Usage of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.3 Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.4 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.5 Section References . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.6 Action by or Consent of Certificateholders . . . . . . . . . . . . . 18
ARTICLE II THE TRUST PROPERTY
Section 2.1 Conveyance of Trust Property . . . . . . . . . . . . . . . . . . . . 18
Section 2.2 Warranties of the Seller as to Each Receivable . . . . . . . . . . . 19
Section 2.3 Warranties as to the Receivables in the Aggregate and
Actions of the Seller. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.4 Repurchase upon Breach . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.5 Custody of Receivable Files. . . . . . . . . . . . . . . . . . . . . 24
Section 2.6 Duties of the Servicer as Custodian. . . . . . . . . . . . . . . . . 25
Section 2.7 Instructions; Authority to Act . . . . . . . . . . . . . . . . . . . 26
Section 2.8 Custodian's Indemnification. . . . . . . . . . . . . . . . . . . . . 26
Section 2.9 Effective Period and Termination . . . . . . . . . . . . . . . . . . 27
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY
Section 3.1 Duties of the Servicer . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.2 Collection of Receivable Payments; Credit Deferrals;
Optional Payment Deferrals . . . . . . . . . . . . . . . . . . . . . 30
Section 3.3 Realization upon Receivables . . . . . . . . . . . . . . . . . . . . 31
Section 3.4 Physical Damage Insurance. . . . . . . . . . . . . . . . . . . . . . 32
Section 3.5 Maintenance of Security Interests in Financed Vehicles . . . . . . . 33
Section 3.6 Covenants of the Servicer. . . . . . . . . . . . . . . . . . . . . . 33
Section 3.7 Purchases by the Servicer. . . . . . . . . . . . . . . . . . . . . . 33
Section 3.8 Servicing Compensation . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3.9 Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3.10 Annual Statement as to Compliance. . . . . . . . . . . . . . . . . . 35
Section 3.11 Independent Certified Public Accountants' Reports. . . . . . . . . . 35
Section 3.12 Access to Certain Documentation and Information Regarding
Receivables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.13 Reports to the Commission. . . . . . . . . . . . . . . . . . . . . . 36
Section 3.14 Reports to the Rating Agencies . . . . . . . . . . . . . . . . . . . 36
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ARTICLE IV DISTRIBUTIONS; RESERVE ACCOUNT;STATEMENTS TO
CERTIFICATEHOLDERS
Section 4.1 Establishment of Accounts. . . . . . . . . . . . . . . . . . . . . . 36
Section 4.2 Collections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.3 Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.4 Additional Deposits; Net Deposits. . . . . . . . . . . . . . . . . . 41
Section 4.5 Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.6 Reserve Account. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.7 Statements to Certificateholders . . . . . . . . . . . . . . . . . . 43
ARTICLE V YIELD SUPPLEMENT ACCOUNT
Section 5.1 Yield Supplement Agreement . . . . . . . . . . . . . . . . . . . . . 45
Section 5.2 Yield Supplement Account . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE VI THE CERTIFICATES
Section 6.1 The Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.2 Authentication of Certificates . . . . . . . . . . . . . . . . . . . 49
Section 6.3 Registration of Transfer and Exchange of Certificates. . . . . . . . 49
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. . . . . . . . . . 49
Section 6.5 Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.6 Access to List of Certificateholders' Names and Addresses. . . . . . 50
Section 6.7 Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . 50
Section 6.8 Book-Entry Certificates. . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.9 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . 51
Section 6.10 Definitive Certificates. . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VII THE SELLER
Section 7.1 Representations and Warranties of the Seller . . . . . . . . . . . . 52
Section 7.2 Liability of the Seller; Indemnities . . . . . . . . . . . . . . . . 54
Section 7.3 Merger or Consolidation of the Seller. . . . . . . . . . . . . . . . 55
Section 7.4 Limitation on Liability of the Seller and Others . . . . . . . . . . 55
Section 7.5 Seller May Own Certificates. . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VIII THE SERVICER
Section 8.1 Representations and Warranties of the Servicer . . . . . . . . . . . 55
Section 8.2 Liability of the Servicer; Indemnities . . . . . . . . . . . . . . . 57
Section 8.3 Merger or Consolidation of the Servicer. . . . . . . . . . . . . . . 58
Section 8.4 Limitation on Liability of the Servicer and Others . . . . . . . . . 58
Section 8.5 Servicer Not to Resign . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8.6 Servicer May Own Certificates. . . . . . . . . . . . . . . . . . . . 59
ARTICLE IX SERVICING TERMINATION
Section 9.1 Events of Servicing Termination. . . . . . . . . . . . . . . . . . . 59
Section 9.2 Trustee to Act; Appointment of Successor Servicer. . . . . . . . . . 60
Section 9.3 Effect of Servicing Transfer . . . . . . . . . . . . . . . . . . . . 61
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Section 9.4 Notification to Certificateholders . . . . . . . . . . . . . . . . . 62
Section 9.5 Waiver of Past Events of Servicing Termination . . . . . . . . . . . 62
Section 9.6 Transfer of Accounts . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE X THE TRUSTEE
Section 10.1 Acceptance by Trustee. . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.2 Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.3 Trustee's Certificate. . . . . . . . . . . . . . . . . . . . . . . . 64
Section 10.4 Trustee's Assignment of Purchased Receivables. . . . . . . . . . . . 64
Section 10.5 Certain Matters Affecting the Trustee. . . . . . . . . . . . . . . . 65
Section 10.6 Trustee Not Liable for Certificates or Receivables . . . . . . . . . 66
Section 10.7 Trustee May Own Certificates . . . . . . . . . . . . . . . . . . . . 67
Section 10.8 Trustee's and Collateral Agent's Fees and Expenses . . . . . . . . . 67
Section 10.9 Trustee May Enforce Claims Without Possession of
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 10.10 Eligibility Requirements for Trustee . . . . . . . . . . . . . . . . 68
Section 10.11 Resignation or Removal of Trustee and Collateral Agent . . . . . . . 68
Section 10.12 Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 10.13 Merger or Consolidation of Trustee . . . . . . . . . . . . . . . . . 69
Section 10.14 Appointment of Co-Trustee or Separate Trustee. . . . . . . . . . . . 70
Section 10.15 Representations and Warranties of Trustee. . . . . . . . . . . . . . 71
Section 10.16 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 10.17 Tax Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XI TERMINATION
Section 11.1 Termination of the Trust . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.2 Optional Purchase of All Receivables . . . . . . . . . . . . . . . . 73
ARTICLE XII MISCELLANEOUS PROVISIONS
Section 12.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.2 Protection of Title to Trust . . . . . . . . . . . . . . . . . . . . 74
Section 12.3 Limitation on Rights of Certificateholders . . . . . . . . . . . . . 76
Section 12.4 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 12.5 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.6 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . 77
Section 12.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.8 Certificates Nonassessable and Fully Paid. . . . . . . . . . . . . . 77
Section 12.9 Intention of Parties . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 12.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 12.11 Limitation of Liability of the Trustee and the Collateral
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
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SCHEDULES
Schedule A Schedule of Receivables
Schedule B Receivables File Locations
EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B Form of Class B Certificate
Exhibit C Form of Servicer's Certificate
Exhibit D Form of Depository Agreement
Exhibit E Form of Yield Supplement Agreement
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POOLING AND SERVICING AGREEMENT
POOLING AND SERVICING AGREEMENT, dated as of April 23, 1998 (as
amended, supplemented or otherwise modified and in effect, this "AGREEMENT"),
by and among FIRST SECURITY BANK, N.A., a national banking association, as
Seller and Servicer, and BANKERS TRUST COMPANY, a New York banking
corporation, as trustee hereunder (in such capacity, the "TRUSTEE") and as
collateral agent with respect to the Reserve Account and the Yield Supplement
Account (in such capacity, the "COLLATERAL AGENT").
In consideration of the premises and of the mutual agreements
herein contained, and other good and valuable consideration, the receipt of
which is acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires,
whenever capitalized shall have the following meanings:
"ACCOUNTS" mean, collectively, the Certificate Account, the
Class A Distribution Account and the Class B Distribution Account.
"ACCOUNT PROPERTY" means all amounts and investments held from
time to time in any Account, the Reserve Account or the Yield Supplement
Account, as the case may be (whether in the form of deposit accounts,
Physical Property, book-entry securities, uncertificated securities or
otherwise), and all proceeds of the foregoing.
"ADVANCES" shall have the meaning specified in Section 4.3.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGGREGATE NET LOSSES" means, for any Collection Period, the
aggregate amount allocable to principal of all Receivables newly designated
during such Collection Period as Defaulted Receivables minus all Liquidation
Proceeds to the extent allocable to principal collected during such
Collection Period with respect to all Defaulted Receivables (whether or not
newly designated as such).
"AMOUNT FINANCED" in respect of a Receivable means the amount
advanced under the Receivable and related costs and shown as such in the
contract evidencing such Receivable and as disclosed for truth-in-lending
purposes.
"AUTHORIZED OFFICER" means any officer within the Corporate
Trust Office of the Trustee, including any managing director, vice president,
assistant vice president, assistant treasurer, assistant secretary or any
other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement 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.
"AVAILABLE INTEREST" means, with respect to any Distribution
Date, the excess of (a) the sum of (i) Interest Collections, (ii) the Yield
Supplement Amount for such Distribution Date and (iii) all Advances made by
the Servicer with respect to such Distribution Date pursuant to Section
4.3(a), over (b) the amount of Outstanding Advances to be reimbursed on or
with respect to such Distribution Date pursuant to Section 4.3(c).
"AVAILABLE PRINCIPAL" means, with respect to any Distribution
Date, the sum of the following amounts with respect to the related Collection
Period: (i) that portion of all Collections received during such Collection
Period and allocable to principal in accordance with the terms of the
Receivables and the Servicer's customary servicing procedures; (ii) to the
extent attributable to principal, the Purchase Amount received with respect
to each Receivable repurchased by the Seller or purchased by the Servicer
under an obligation which arose during the related Collection Period; (iii)
all Recoveries, to the extent allocable to principal; and (iv) all
Liquidation Proceeds, to the extent allocable to principal. "Available
Principal" on any Distribution Date shall exclude all payments and proceeds
of any Receivables the Purchase Amount of which has been distributed on a
prior Distribution Date.
"AVAILABLE RESERVE AMOUNT" shall mean, for each Distribution
Date, an amount equal to the lesser of (i) the amount on deposit in the
Reserve Account (exclusive of investment earnings) and (ii) the Specified
Reserve Account Balance.
"AVERAGE DELINQUENCY RATIO" means, as of any Distribution Date,
the average of the Delinquency Ratios for the preceding three Collection
Periods.
"AVERAGE NET LOSS RATIO" means, as of any Distribution Date,
the average of the Net Loss Ratios for the preceding three Collection Periods.
"BASIC RESERVE ACCOUNT PERCENTAGE" means ___%.
"BASIC SERVICING FEE" means, with respect to any Distribution
Date, an amount equal to the product of (i) one-twelfth of the Basic
Servicing Fee Rate and (ii) the Pool Balance as of the first day of the
preceding Collection Period.
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"BASIC SERVICING FEE RATE" shall be ___% per annum, calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"BENEFIT PLAN" has the meaning specified in Section 6.3.
"BOOK-ENTRY CERTIFICATES" mean beneficial interests in the
Definitive Certificates, the ownership of which shall be evidenced, and
transfers of which shall be made, through book entries by a Clearing Agency
as described in Section 6.8.
"BUSINESS DAY" means a day on which the Trustee and commercial
banks located in the State of Utah, the State of Idaho and the City of New
York, are open for the purpose of conducting commercial banking business;
PROVIDED, HOWEVER, that for purposes of determining any Distribution Date,
the term "Business Day" shall mean a day on which the Trustee and commercial
banks located in the State of New York generally and the City of New York are
open for the purpose of conducting a commercial banking business.
"CERTIFICATE" means any Class A Certificate or Class B
Certificate.
"CERTIFICATE ACCOUNT" means the account or accounts established
and maintained as such pursuant to Section 4.1.
"CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules, regulations and procedures of such
Clearing Agency).
"CERTIFICATE REGISTER" means the register maintained by the
Trustee for the registration of Certificates and of transfers and exchanges
of Certificates as provided in Section 6.3.
"CERTIFICATEHOLDER" means the Person in whose name a
Certificate shall be registered in the Certificate Register, EXCEPT THAT,
solely for the purpose of giving any consent, request or waiver pursuant to
this Agreement, the interest evidenced by any Certificate registered in the
name of the Seller, the Servicer, or any Person actually known to an
Authorized Officer of the Trustee to be an Affiliate of the Seller or the
Servicer, shall not be taken into account in determining whether the
requisite percentage necessary to effect any such consent, request or waiver
shall have been obtained.
"CLASS A CERTIFICATE" means a certificate executed by the
Trustee on behalf of the Trust and authenticated by the Trustee,
substantially in the form of EXHIBIT A hereto.
"CLASS A CERTIFICATEHOLDER" or "CLASS A HOLDER" means the
Person in whose name a Class A Certificate shall be registered in the
Certificate Register, EXCEPT THAT, solely for the purpose of giving any
consent, request or waiver pursuant to this Agreement, the interest evidenced
by any Class A Certificate registered in the name of the Seller, the
Servicer, or any Person actually known to an Authorized Officer of the
Trustee to be an Affiliate of the Seller or the Servicer, shall not be
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taken into account in determining whether the requisite percentage necessary
to effect any such consent, request or waiver shall have been obtained.
"CLASS A CERTIFICATE BALANCE" at any time, means the Original
Class A Certificate Balance as reduced by all amounts allocable to principal
on the Class A Certificates distributed to Class A Certificateholders prior
to such time.
"CLASS A CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate representing a beneficial interest in the Class A Certificates,
the Person who is the owner of such Book-Entry Certificate, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant in
accordance with the rules, regulations and procedures of such Clearing
Agency).
"CLASS A DISTRIBUTION ACCOUNT" means the account established
and maintained as such pursuant to Section 4.1.
"CLASS A INTEREST CARRYOVER SHORTFALL" means, (i) with respect
to the initial Distribution Date, zero and (ii) with respect to any other
Distribution Date, the excess of Class A Monthly Interest for the preceding
Distribution Date and any outstanding Class A Interest Carryover Shortfall on
such preceding Distribution Date, over the amount in respect of interest that
is actually deposited into the Class A Distribution Account on such preceding
Distribution Date, plus 30 days of interest on such excess, to the extent
permitted by law, at the Class A Pass-Through Rate.
"CLASS A INTEREST DISTRIBUTION" means, with respect to any
Distribution Date, the sum of Class A Monthly Interest for such Distribution
Date and the Class A Interest Carryover Shortfall for such Distribution Date.
"CLASS A MONTHLY INTEREST" means, with respect to any
Distribution Date, one-twelfth of the Class A Pass-Through Rate multiplied by
the Class A Certificate Balance as of the preceding Distribution Date (after
giving effect to any distributions made on such Distribution Date) or, in the
case of the first Distribution Date, as of the Closing Date.
"CLASS A MONTHLY PRINCIPAL" means, with respect to any
Distribution Date, the Class A Percentage of Available Principal for such
Distribution Date plus the Class A Percentage of Realized Losses with respect
to the related Collection Period.
"CLASS A PASS-THROUGH RATE" means ____% per annum, calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"CLASS A PERCENTAGE" means a fraction the numerator of which is
the Original Class A Certificate Balance and the denominator of which is the
Original Class A Certificate Balance plus the Original Class B Certificate
Balance.
"CLASS A POOL FACTOR" means, with respect to any Distribution
Date, the Class A Certificate Balance as of the immediately preceding
Distribution Date (after giving effect to any
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payments made on such Distribution Date) divided by the Original Class A
Certificate Balance, expressed as a seven-digit decimal.
"CLASS A PRINCIPAL CARRYOVER SHORTFALL" means, (i) with respect
to the initial Distribution Date, zero and (ii) with respect to any other
Distribution Date, the excess of Class A Monthly Principal for such
Distribution Date and any outstanding Class A Principal Carryover Shortfall
from the preceding Distribution Date over the amount in respect of principal
that is actually deposited into the Class A Distribution Account on such
Distribution Date.
"CLASS A PRINCIPAL DISTRIBUTION" means, with respect to the
initial Distribution Date, the Class A Monthly Principal for such
Distribution Date and, with respect to any Distribution Date other than the
initial Distribution Date, the sum of Class A Monthly Principal for such
Distribution Date and the Class A Principal Carryover Shortfall as of the
close of the preceding Distribution Date. In addition, on the Final
Scheduled Distribution Date, the Class A Principal Distribution shall include
the amount that is necessary (after giving effect to the other amounts
described above to be distributed to the Class A Certificateholders on such
Distribution Date and allocable to principal) to reduce the Class A
Certificate Balance to zero.
"CLASS B CERTIFICATE" means a certificate executed by the
Trustee on behalf of the Trust and authenticated by the Trustee,
substantially in the form of EXHIBIT B hereto.
"CLASS B CERTIFICATEHOLDER" or "CLASS B HOLDER" means the
Person in whose name a Class B Certificate shall be registered in the
Certificate Register, EXCEPT THAT, solely for the purpose of giving any
consent, request or waiver pursuant to this Agreement, the interest evidenced
by any Class B Certificate registered in the name of the Seller, the
Servicer, or any Person actually known to an Authorized Officer of the
Trustee to be an Affiliate of the Seller or the Servicer, shall not be taken
into account in determining whether the requisite percentage necessary to
effect any such consent, request or waiver shall have been obtained.
"CLASS B CERTIFICATE BALANCE" at any time, equals the Original
Class B Certificate Balance, as reduced by all amounts allocable to principal
on the Class B Certificates distributed to Class B Certificateholders prior
to such time.
"CLASS B CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate representing a beneficial interest in the Class B Certificates,
the Person who is the owner of such Book-Entry Certificate, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant in
accordance with the rules, regulations and procedures of such Clearing
Agency).
"CLASS B DISTRIBUTION ACCOUNT" means the account established
and maintained as such pursuant to Section 4.1.
"CLASS B INTEREST CARRYOVER SHORTFALL" means, (i) with respect
to the initial Distribution Date, zero and (ii) with respect to any other
Distribution Date, the excess of Class B Monthly Interest for the preceding
Distribution Date and any outstanding Class B Interest Carryover
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Shortfall on such preceding Distribution Date, over the amount in respect of
interest that is actually deposited into the Class B Distribution Account on
such preceding Distribution Date, plus 30 days of interest on such excess, to
the extent permitted by law, at the Class B Pass-Through Rate.
"CLASS B INTEREST DISTRIBUTION" means, with respect to any
Distribution Date, the sum of Class B Monthly Interest for such Distribution
Date and the Class B Interest Carryover Shortfall for such Distribution Date.
"CLASS B MONTHLY INTEREST" means, with respect to any
Distribution Date, one-twelfth of the Class B Pass-Through Rate multiplied by
the Class B Certificate Balance as of the preceding Distribution Date (after
giving effect to any distributions made on such Distribution Date) or, in the
case of the first Distribution Date, as of the Closing Date.
"CLASS B MONTHLY PRINCIPAL" means, with respect to any
Distribution Date, the Class B Percentage of Available Principal for such
Distribution Date plus the Class B Percentage of Realized Losses with respect
to the related Collection Period.
"CLASS B PASS-THROUGH RATE" means ____% per annum, calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"CLASS B PERCENTAGE" means a fraction the numerator of which is
the Original Class B Certificate Balance and the denominator of which is the
Original Class A Certificate Balance plus the Original Class B Certificate
Balance.
"CLASS B POOL FACTOR" means, with respect to any Distribution
Date, the Class B Certificate Balance as of the immediately preceding
Distribution Date (after giving effect to any payments made on such
Distribution Date) divided by the Original Class B Certificate Balance,
expressed as a seven-digit decimal.
"CLASS B PRINCIPAL CARRYOVER SHORTFALL" means, (i) with respect
to the initial Distribution Date, zero and (ii) with respect to any other
Distribution Date, the excess of Class B Monthly Principal for such
Distribution Date and any outstanding Class B Principal Carryover Shortfall
from the preceding Distribution Date over the amount in respect of principal
that is actually deposited into the Class B Distribution Account on such
Distribution Date.
"CLASS B PRINCIPAL DISTRIBUTION" means, with respect to the
initial Distribution Date, the Class B Monthly Principal for such
Distribution Date and, with respect to any Distribution Date other than the
initial Distribution Date, the sum of Class B Monthly Principal for such
Distribution Date and the Class B Principal Carryover Shortfall as of the
close of the preceding Distribution Date. In addition, on the Final
Scheduled Distribution Date, the Class B Principal Distribution shall include
the amount that is necessary (after giving effect to the other amounts
described above to be distributed to the Class B Certificateholders on such
Distribution Date and allocable to principal) to reduce the Class B
Certificate Balance to zero.
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"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The initial Clearing Agency shall be The Depository Trust Company.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers of securities deposited with the Clearing
Agency.
"CLOSING DATE" means the date of the initial issuance of the
Certificates hereunder.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL AGENT" means Bankers Trust Company, a New York banking
corporation, in its capacity as collateral agent for the benefit of the
Certificateholders with respect to the Reserve Account and the Yield Supplement
Account and any successor collateral agent appointed and acting pursuant to
Section 10.11.
"COLLECTION PERIOD" means, during the term of this Agreement, the
period from and including the 24th day of a calendar month to and including the
23rd day of the next succeeding calendar month or, in the case of the initial
Collection Period, the period from the close of business of the Servicer on the
Cutoff Date to and including ______________. With respect to any Determination
Date, Deposit Date or Distribution Date, the "related Collection Period" shall
mean the Collection Period ending during the preceding month in which such
Determination Date, Deposit Date or Distribution Date occurs.
"COLLECTIONS" means all collections on the Receivables.
"COMMISSION" means the Securities and Exchange Commission, or any
successor thereto.
"COMPUTER TAPE" means the computer tape generated by the Seller
which provides information relating to the Receivables and which was used by the
Seller in selecting the Receivables conveyed to the Trust hereunder.
"CONTRACT RATE" means, with respect to a Receivable, the rate per
annum of interest charged on the outstanding Principal Balance of such
Receivable.
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"CONTROL" over a Security Entitlement shall be considered obtained
by the Trustee or the Collateral Agent, as applicable, if:
(i) the Trustee or the Collateral Agent, as applicable, is the
Securities Intermediary for the Account in which such
Security Entitlement is held, or (b) the Trustee or the
Collateral Agent, as applicable, (1) is registered on the
records of the Securities Intermediary as the person having
such a Security Entitlement against the Securities
Intermediary, or (2) has obtained the agreement, in
writing, of the Securities Intermediary for such Security
Entitlement that it will comply with orders of the Trustee
or the Collateral Agent, as applicable, regarding the sale
or redemption of the Security Entitlement without further
consent of any other person; and
(ii) the "Securities Intermediary" for such Security Entitlement
(a) is the registered owner of the related Financial Asset,
(b) is the holder of the Security Certificate for the
related Financial Asset, or (c) holds its interest in the
related Financial Asset directly through a clearing
corporation (as defined in Revised Article 8).
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at date of execution of this Agreement is located
at Bankers Trust Company, Four Albany Street, 10th Floor, New York, New York
10006, Attention: Corporate Trust and Agency Group - Structured Finance, or
at such other address as the Trustee may designate from time to time by
notice to the Certificateholders, the Seller and the Servicer, or the
principal corporate trust office of any successor Trustee (the address of
which the successor Trustee will notify the Certificateholders, the Seller
and the Servicer).
"CREDIT DEFERRAL" has the meaning specified in Section 3.2.
"CUTOFF DATE" means ______________.
"CUTOFF DATE PRINCIPAL BALANCE" means, with respect to any
Receivable, the initial Principal Balance of such Receivable minus the sum of
the portion of all payments received under such Receivable from or on behalf of
the related Obligor on or prior to the close of business of the Servicer on the
Cutoff Date and allocable to principal in accordance with the terms of the
Receivable.
"DEALER" means, with respect to a Receivable, the seller of the
related Financed Vehicle, who originated and assigned the Receivable relating to
such Financed Vehicle to the Seller under a Dealer Agreement and a Dealer
Assignment.
"DEALER AGREEMENT" means an agreement between the Seller and a
Dealer relating to the assignment of Receivables to the Seller and all documents
and instruments (other than the related Dealer Assignments) relating thereto.
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"DEALER ASSIGNMENT" means the executed assignment conveying a
Receivable from a Dealer to the Seller.
"DEALER LOAN" means a motor vehicle retail installment sale
contract originated by a Dealer and conveyed to the Seller pursuant to a Dealer
Assignment.
"DEFAULT TRIGGER" means ___%.
"DEFAULTED RECEIVABLE" means, with respect to any Collection
Period, a Receivable (other than a Purchased Receivable) which the Servicer, on
behalf of the Trust, has determined to charge off during such Collection Period
in accordance with its customary servicing practices; PROVIDED, HOWEVER, that
any Receivable which the Seller or the Servicer is obligated to repurchase or
purchase shall be deemed not to be a Defaulted Receivable during a Collection
Period unless the Seller or the Servicer fails to deposit the Purchase Amount on
the related Deposit Date when due, unless such Receivable is otherwise
repurchased or purchased on or prior to the last day of the Collection Period in
which such Receivable is determined to be a Defaulted Receivable.
"DEFERRAL FEE" means the fee associated with any Optional Payment
Deferral or Credit Deferral.
"DEFINITIVE CERTIFICATES" shall have the meaning specified in
Section 6.8.
"DELINQUENCY RATIO" means, for any Collection Period, the ratio,
expressed as a percentage, of (i) the principal amount of all outstanding
Receivables (other than Purchased Receivables and Defaulted Receivables) which
are 60 or more days delinquent as of the last day of such Collection Period,
determined in accordance with the Servicer's customary practices, divided by
(ii) the Pool Balance as of the last day of such Collection Period.
"DELINQUENCY TRIGGER" means ____%.
"DEPOSIT DATE" means, with respect to any Collection Period, the
Business Day preceding the related Distribution Date.
"DEPOSITORY AGREEMENT" means the agreement among the Seller, the
Servicer, the Trustee and the initial Clearing Agency, dated ______________,
substantially in the form attached hereto as EXHIBIT D.
"DETERMINATION DATE" means the tenth day of each month (or, if
such day is not a Business Day, the next succeeding Business Day).
"DIRECT MOTOR VEHICLE LOAN" means a Receivable that is a motor
vehicle retail installment loan originated by the Seller.
"DISTRIBUTION DATE" means the 15th day of each month (or, if such
day is not a Business Day, the next succeeding Business Day), commencing
____________.
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"ELECTRONIC LEDGER" means the electronic master record of the
retail installment sale contracts and retail installment loans of the Seller.
"ELIGIBLE DEPOSIT ACCOUNT" means either (i) a segregated account
with an Eligible Institution or (ii) a segregated trust account with the trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having trust powers and acting as
trustee for funds deposited in such account, so long as the long-term unsecured
debt rating of such depository institution shall have a credit rating from each
Rating Agency in one of its generic rating categories which signifies investment
grade.
"ELIGIBLE INSTITUTION" means any depository institution with trust
powers (which may include the Seller, the Servicer or the Trustee), organized
under the laws of the United States, any state thereof, the District of Columbia
or any domestic branch of a foreign bank, having combined capital and surplus in
excess of $50,000,000, the deposits of which are insured to the full extent
permitted by law by the Federal Deposit Insurance Corporation, which is subject
to supervision and examination by Federal or state banking authorities and which
has (i) a rating of at least P-1 from Moody's and A-l+ from S&P with respect to
short-term deposit obligations, or (ii) if such institution has issued long-term
unsecured debt obligations, a rating of A2 or higher from Moody's and A or
higher from S&P with respect to long-term unsecured debt obligations. If such
depository institution publishes reports of condition at least annually,
pursuant to law or the requirements of the aforesaid supervising or examining
authority, then 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.
"ELIGIBLE INVESTMENTS" shall mean, at any time, any one or more of
the following types of investments, each of which shall mature on or prior to
the next succeeding Deposit Date (or, to the extent overnight investments are
permitted under Section 4.1(a)(ii), on the next Distribution Date):
(a) direct marketable obligations of the United States having a
maturity of not more than 30 days from the date of acquisition;
(b) marketable obligations directly and fully guaranteed by the
United States as to the full and timely payment of principal and interest
having a maturity of not more than 30 days from the date of acquisition;
(c) bankers' acceptances and certificates of deposit
denominated in U.S. Dollars in each case having a maturity of not more
than 30 days from the date of acquisition, and issued by any bank with
capital, surplus and undivided profits aggregating at least $100,000,000,
the short-term unsecured securities of which are rated at least A-l+ by
S&P and P-1 by Moody's; and
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(d) commercial paper having a maturity of not more than 30 days
and which is rated at least A-l+ by S&P and P-1 by Moody's;
(e) freely redeemable shares in no-load money market funds
which invest solely in obligations, bankers' acceptances, certificates of
deposit and commercial paper of the types described in clauses (a)
through (d), without regard to the limitations as to the maturity of such
obligations, bankers' acceptances, certificates of deposit or commercial
paper set forth in such clauses, rated at least AAAm by S&P and Aaa by
Moody's; and
(f) any Bankers Trust Company money market fund so long as it
shall be rated by each Rating Agency as either AAAm, Aaa, as an eligible
investment for AAA/Aaa rated transactions, or in the highest short-term
rating assigned by a particular Rating Agency.
Eligible Investments may include, if otherwise eligible pursuant
to paragraphs (a) to (e) above, debt securities of the Trustee, the Seller or
any of their Affiliates for which the Trustee, the Seller or any of their
Affiliates is an investment manager or investment advisor.
"ELIGIBLE SERVICER" means (a) any Affiliate of the Seller, (b)
Bankers Trust Company or (c) any Person which, at the time of its appointment
as Servicer or as a subservicer, (i) has a net worth of not less than
$50,000,000, (ii) is servicing a portfolio of motor vehicle retail installment
sale contracts and/or motor vehicle loans, (iii) is legally qualified, and has
the capacity, to service the Receivables, (iv) has demonstrated the ability to
service a portfolio of motor vehicle retail installment sale contracts and/or
motor vehicle loans similar to the Receivables professionally and competently in
accordance with standards of skill and care that are consistent with prudent
industry standards, and (v) is qualified and entitled to use pursuant to a
license or other written agreement, and agrees to maintain the confidentiality
of, the software which the Servicer or any subservicer uses in connection with
performing its duties and responsibilities under this Agreement or the related
subservicing agreement or obtains rights to use, or develops at its own expense,
software which is adequate to perform its duties and responsibilities under this
Agreement or the related subservicing agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"EVENT OF SERVICING TERMINATION" means an event specified in
Section 9.1.
"FEDERAL BOOK-ENTRY SECURITY" means an obligation issued by the
U.S. Treasury, the Federal Home Loan Mortgage Corporation or the Federal
National Mortgage Association, or any other direct obligation of, or obligation
fully guaranteed as to timely payment of principal and interest by, the United
States of America, that is a book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations.
"FINANCIAL ASSET" has the meaning given such term in Revised
Article 8. As used herein, the Financial Asset "related to" a Security
Entitlement is the Financial Asset in which the entitlement holder (as defined
in Revised Article 8) holding such Security Entitlement has the rights and
property interest specified in Revised Article 8.
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"FINAL SCHEDULED DISTRIBUTION DATE" means the ______________
Distribution Date.
"FINAL SCHEDULED MATURITY DATE" means the last day of the
Collection Period preceding the Final Scheduled Distribution Date.
"FINANCED VEHICLE" means the Motor Vehicle, together with all
accessions thereto, securing an Obligor's indebtedness under a Receivable.
"FULL PAYOFF AMOUNT" means the sum of the Pool Balance plus an
amount sufficient to pay interest on (i) the Class A Percentage of such Pool
Balance at a rate equal to the sum of the Class A Pass-Through Rate and the
Basic Servicing Fee Rate through the Final Scheduled Distribution Date and (ii)
the Class B Percentage of such Pool Balance at a rate equal to the sum of the
Class B Pass-Through Rate and the Basic Servicing Fee Rate through the Final
Scheduled Distribution Date.
"INSURANCE POLICIES" means all comprehensive and collision, fire
and theft insurance policies maintained by the Obligors naming the Seller as an
additional insured or loss payee and any credit and disability and physical
damage insurance policies maintained by the Obligors and benefitting any holder
of the Receivables.
"INTEREST ACCRUAL DATE" means ______________.
"INTEREST COLLECTIONS" means, for any Distribution Date, the sum
of the following amounts for the related Collection Period: (i) that portion of
the Collections on the Receivables received during the related Collection Period
that is allocable to interest in accordance with the Servicer's customary
procedures, (ii) all Liquidation Proceeds, to the extent allocable to interest,
(iii) all Recoveries, to the extent allocable to interest and (iv) to the extent
attributable to accrued interest, the Purchase Amount of all Receivables that
are repurchased or purchased by the Seller or the Servicer as of any day in the
related Collection Period. "Interest Collections" for any Distribution Date
shall exclude all payments and proceeds of any Receivables the Purchase Amount
of which has been distributed on a prior Distribution Date.
"LIQUIDATION PROCEEDS" means, with respect to any Distribution
Date and a Receivable that became a Defaulted Receivable during the related
Collection Period, (i) insurance proceeds received during such Collection Period
by the Servicer, with respect to insurance policies relating to the Financed
Vehicles or the Obligors, (ii) amounts received by the Servicer during such
Collection Period from a Dealer in connection with such Defaulted Receivable
pursuant to the exercise of rights under a Dealer Agreement, and (iii) the
monies collected by the Servicer (from whatever source, including proceeds of a
sale of a Financed Vehicle or deficiency balance recovered after the charge-off
of the related Receivable) during such Collection Period on such Defaulted
Receivable net of any expenses incurred by the Servicer in connection with the
collection of such Receivable and the disposition of the Financed Vehicle and
any payments required by law to be remitted to the Obligor, but, in any event,
not less than zero. Liquidation Proceeds shall be applied first to accrued and
unpaid interest on the Receivable and then to the Principal Balance thereof.
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"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MOTOR VEHICLE" means a new or used automobile or light-duty truck
which is the subject of a retail installment sale contract originated by a
dealer or a retail installment loan originated by the Seller.
"NET LOSS RATIO" means, for any Collection Period, an amount,
expressed as a percentage, equal to (i) the product of (a) the Aggregate Net
Losses minus Recoveries for such Collection Period, and (b) twelve divided by
(ii) the average of the Pool Balances on each of the first day of such
Collection Period and the last day of such Collection Period.
"OBLIGOR" means the purchaser or the co-purchasers of a Financed
Vehicle purchased in part or in whole by the execution and delivery of the
related Receivable or the borrower or co-borrowers under the related Receivables
the proceeds of which were applied to purchase in part or in whole the Financed
Vehicle, and any other co-signer of the Receivable who owes or may be liable for
payments under such Receivable.
"OFFICER'S CERTIFICATE" means a certificate signed by the
chairman, the president, any vice president, the treasurer or the cashier of the
Seller or the Servicer, as the case may be, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel (who may
be outside counsel to the Seller or the Servicer) acceptable in form to the
Trustee.
"OPTIONAL PAYMENT DEFERRAL" shall have the meaning specified in
Section 3.2(c).
"ORIGINAL CERTIFICATE BALANCE" means the sum of the Original
Class A Certificate Balance and the Original Class B Certificate Balance.
"ORIGINAL CLASS A CERTIFICATE BALANCE" means $______________.
"ORIGINAL CLASS B CERTIFICATE BALANCE" means $_____________.
"ORIGINAL POOL BALANCE" means, as of the Cutoff Date,
$______________.
"OUTSTANDING ADVANCES" means, with respect to any Distribution
Date, the aggregate of all Advances made by the Servicer with respect to prior
Distribution Dates that have not been reimbursed pursuant to Section 4.3(c).
"PASS-THROUGH RATE" means the Class A Pass-Through Rate and the
Class B Pass-Through Rate.
"PERSON" means a legal person, including any individual,
corporation, limited liability company, estate, partnership, joint venture,
association, joint stock company, trust, unincorporated
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organization, or government or any agency or political subdivision thereof,
or any other entity of whatever nature.
"PHYSICAL PROPERTY" means (i) bankers' acceptances, commercial
paper, negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the Relevant UCC and
are susceptible of physical delivery and (ii) certificated securities (as
defined in Section 8-102 of the Relevant UCC).
"POOL BALANCE" means, on any date of determination, the aggregate
outstanding Principal Balance of the Receivables on such date.
"PRINCIPAL BALANCE" means, as of any time, for any Receivable, the
Cutoff Date Principal Balance minus the sum of the portions of all payments
received from or on behalf of the related Obligor after the close of business of
the Servicer on the Cutoff Date and prior to such time that are allocable to
principal in accordance with the terms of the Receivable plus the amount of any
Deferral Fee.
"PURCHASE AMOUNT" of any Receivable means, with respect to any
Deposit Date, an amount equal to the sum of (i) the outstanding Principal
Balance of such Receivable as of the last day of the related Collection Period
and (ii) an amount equal to the amount of accrued and unpaid interest on such
Principal Balance at the related Contract Rate through the last day of the
related Collection Period, in each case, after giving effect to Collections on
such Receivable in such Collection Period.
"PURCHASED RECEIVABLE" means, on any date of determination, a
Receivable as to which payment of the Purchase Amount has been made by the
Seller or the Servicer pursuant to this Agreement.
"RATING AGENCY" means at any time any nationally recognized
statistical rating agency providing a rating for the Certificates at the request
of the Seller at such time.
"REALIZED LOSSES" means, with respect to any Distribution Date and
a Receivable that became a Defaulted Receivable during the related Collection
Period, the excess of (i) the aggregate Principal Balance of such Receivable as
of the first day of the related Collection Period over (ii) Liquidation Proceeds
received with respect to such Receivable during such Collection Period to the
extent allocable to principal.
"RECEIVABLE" means a motor vehicle retail installment sale
contract or a motor vehicle retail installment loan described in the Schedule of
Receivables, but excluding any Purchased Receivables.
"RECEIVABLE FILE" means, with respect to a Receivable, the
electronic entries, documents, instruments and writings specified in Section
2.5.
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"RECORD DATE" means, with respect to each Collection Period and
the related Distribution Date, the day immediately preceding such Distribution
Date (or, if Definitive Certificates are issued, the last day of such Collection
Period).
"RECOVERIES" means, with respect to any Distribution Date, all
monies received by the Servicer with respect to any Defaulted Receivable during
the related Collection Period if such Collection Period follows the Collection
Period in which such Receivable became a Defaulted Receivable, net of the sum of
(i) any expenses incurred by the Servicer in connection with the collection of
such Receivable and the disposition of the Financed Vehicle (to the extent not
previously reimbursed) and (ii) any payments required by law to be remitted to
the Obligor, but, in any event, not less than zero.
"RELEVANT UCC" shall mean the Uniform Commercial Code as in effect
in the relevant jurisdiction, as amended from time to time.
"REQUIRED RATING" means a rating with respect to short-term
deposit obligations of at least P-1 by Moody's and at least A-1+ by S&P.
"RESERVE ACCOUNT" means the fund established pursuant to Section
4.1 and maintained as such pursuant to Section 4.6.
"RESERVE ACCOUNT FLOOR AMOUNT" means $_____________.
"RESERVE ACCOUNT INCREASE PERCENTAGE" means ___%.
"RESERVE ACCOUNT INITIAL DEPOSIT" means, with respect to the
Closing Date, $_____________.
"RESERVE ACCOUNT TRIGGER STARTING DATE" means _____________.
"REVISED ARTICLE 8" means Revised Article 8 (1994 Version) (and
corresponding amendments to Article 9) as promulgated in 1994 by the National
Conference of Commissioners on Uniform State Laws, in the form in which it has
been adopted in the State of New York.
"S&P" means Standard & Poor's Ratings Service, a Division of the
McGraw Hill Companies.
"SCHEDULE OF RECEIVABLES" means the list identifying the
Receivables attached hereto as Schedule A.
"SCHEDULED PAYMENT" means, for any Collection Period for any
Receivable, the 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 or any rescheduling in any insolvency or
similar proceedings).
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"SECURITY CERTIFICATE" has the meaning given such term in Revised
Article 8.
"SECURITY ENTITLEMENT" has the meaning given such term in Revised
Article 8.
"SELLER" means First Security Bank, N.A. (including all Persons
merged into or otherwise consolidated with, and all other predecessors thereto)
in its capacity as seller of the Receivables to the Trust under this Agreement,
and each successor thereto (in the same capacity) pursuant to Section 7.3.
"SERVICER" means First Security Bank, N.A., in its capacity as
servicer of the Receivables under this Agreement, each successor thereto (in the
same capacity) pursuant to Section 8.3, and each successor servicer appointed
and acting pursuant to Section 9.2.
"SERVICER'S CERTIFICATE" has the meaning specified in Section 3.9.
"SERVICING OFFICER" means any officer of the Servicer involved in,
or responsible for, the administration and servicing of the Receivables, whose
name appears on a list of servicing officers attached to an Officer's
Certificate furnished to the Trustee by the Servicer on the Closing Date, as
such list may be amended from time to time by the Servicer in writing.
"SIMPLE INTEREST METHOD" means the method of allocating a fixed
level payment between principal and interest, pursuant to which the portion of
such payment that is allocated to interest is equal to the product of the
Contract Rate multiplied by the unpaid principal balance multiplied by the
period of time elapsed since the preceding payment of interest was made and the
remainder of such payment is allocable to principal.
"SIMPLE INTEREST RECEIVABLE" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"SPECIFIED RESERVE ACCOUNT BALANCE" with respect to any
Distribution Date, means the Basic Reserve Account Percentage of the Pool
Balance as of the last day of the preceding Collection Period, but in any event
will not be less than the lesser of (i) the Reserve Account Floor Amount and
(ii) the Full Payoff Amount; PROVIDED that the Specified Reserve Account Balance
will be calculated using the Reserve Account Increase Percentage instead of the
Basic Reserve Account Percentage for any Distribution Date (beginning on the
Reserve Account Trigger Starting Date) on which the Average Net Loss Ratio
exceeds the Default Trigger or the Average Delinquency Ratio exceeds the
Delinquency Trigger. The Specified Reserve Account Balance may be reduced to a
lesser amount as determined by the Seller; PROVIDED that the Seller gives prior
written notice of such reduction to the Rating Agencies and such reduction does
not adversely affect the ratings of the Certificates by the Rating Agencies.
"SPECIFIED YIELD SUPPLEMENT BALANCE" means, with respect to any
Distribution Date, an amount equal to at least the sum of all projected Yield
Supplement Amounts for all future Distribution Dates, assuming that future
Scheduled Payments on the Receivables are made on their
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scheduled due dates; PROVIDED that if on any date the Seller shall fail to
pay the amount payable under the Yield Supplement Agreement in accordance
with the terms thereof, then, in such event, the Specified Yield Supplement
Balance shall not thereafter be reduced hereunder.
"SUPPLEMENTAL SERVICING FEE" shall have the meaning set forth in
Section 3.8.
"TRADES" means regulations promulgated by the U.S. Department of
the Treasury governing book-entry Treasury bonds, notes and bills, 31 C.F.R.
Part 357, which replace prior Treasury regulations and which designate Revised
Article 8 as the applicable governing law.
"TRADES EFFECTIVE DATE" means with respect to a Federal Book-Entry
Security, the date (which was January 1, 1997, in the case of securities issued
by the U.S. Treasury) on which TRADES or an equivalent set of regulations
becomes effective.
"TRUST" means the First Security Auto Grantor Trust 1998-A created
by this Agreement.
"TRUSTEE" means Bankers Trust Company, a New York banking
corporation, as Trustee under this Agreement, or any successor, and any
successor trustee appointed and acting pursuant to Sections 10.11 and 10.12.
"TRUST PROPERTY" means the Receivables; all monies due or received
under the Receivables after the close of business of the Servicer on the Cutoff
Date; the Certificate Account, the Class A Distribution Account and the Class B
Distribution Account and such amounts as from time to time may be held therein
(including the Account Property related thereto); security interests in the
Financed Vehicles; all rights of the Trust under the Yield Supplement Agreement;
the Seller's rights (if any) to receive proceeds from claims on Insurance
Policies covering the Financed Vehicles or the Obligors; the Seller's rights
relating to the Receivables under the Dealer Agreements and Dealer Assignments;
the Seller's rights to all documents and information contained in the Receivable
Files; the rights of the Trust under this Agreement (including the right to
receive payments under the circumstances specified herein from the Reserve
Account); and all proceeds (within the meaning of the Relevant UCC) of the
foregoing. Notwithstanding anything to the contrary contained herein, the Trust
Property shall not include, and the Trust shall not have any right to, the
Reserve Account, the Yield Supplement Account, any funds actually or deemed to
be deposited in such accounts or any investments therein or any amounts paid by
the Servicer for physical damage insurance pursuant to Section 3.4.
"UNCERTIFICATED SECURITY" as of any date, has the meaning given to
such term under the Relevant UCC as in effect on such date.
"YIELD SUPPLEMENT ACCOUNT" shall mean the account established,
maintained and designated as the "Yield Supplement Account" pursuant to Section
5.2.
"YIELD SUPPLEMENT ACCOUNT PROPERTY" shall have the meaning set
forth in Section 5.2.
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"YIELD SUPPLEMENT AGREEMENT" means the Yield Supplement Agreement
dated as of the Closing Date between the Seller and the Trustee, substantially
in the form attached hereto as EXHIBIT E.
"YIELD SUPPLEMENT AMOUNT" shall have the meaning specified in
Section 5.l.
"YIELD SUPPLEMENT INITIAL DEPOSIT" means cash or Eligible
Investments having a value of at least $________.
Section 1.2 USAGE OF TERMS. With respect to all terms used in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all subsequent amendments thereto or changes therein entered into in accordance
with their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
Section 1.3 CALCULATIONS. All calculations of the amount of
interest accrued on the Certificates during any Collection Period and all
calculations of the amount of the Basic Servicing Fee payable with respect to a
Collection Period shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
Section 1.4 REFERENCES. All references to the first day of a
Collection Period shall refer to the opening of business on such day. All
references to the last day of a Collection Period shall refer to the close of
business of the Servicer on such day.
Section 1.5 SECTION REFERENCES. All section references shall be
to Sections in this Agreement unless otherwise specified.
Section 1.6 ACTION BY OR CONSENT OF CERTIFICATEHOLDERS.
Whenever any provision of this Agreement refers to action to be taken, or
consented to, by Certificateholders, such provision shall be deemed to refer to
Certificateholders of record as of the Record Date immediately preceding the
date on which such action is to be taken, or consented to by Certificateholders.
ARTICLE II
THE TRUST PROPERTY
Section 2.1 CONVEYANCE OF TRUST PROPERTY. (a) In consideration
of the Trustee's delivery to, or upon the written order of, the Seller of
authenticated Certificates, in authorized denominations, in an aggregate amount
equal to the Original Certificate Balance and the rights to receive certain
amounts as specified herein, the Seller hereby sells, transfers, assigns and
conveys
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to the Trustee, on the behalf of the Trust, for the benefit of the
Certificateholders, upon the terms and conditions hereof, the Trust Property,
without recourse. The sale, transfer, assignment and conveyance made
hereunder shall not constitute and is not intended to result in an assumption
by the Trustee, any Certificateholder or any Certificate Owner of any
obligation of the Seller to the Obligors, the Dealers, or any other Person in
connection with the Receivables and the other Trust Property or any
agreement, document or instrument related thereto.
(b) The Seller intends that the transfer and conveyance of the
Trust Property to the Trust hereunder constitutes a complete sale and assignment
of all of the Seller's right, title and interest in, to and under the Trust
Property to the Trust and that the beneficial interest of the Seller in, and
title to, the Trust Property will not be a part of the Seller's estate in the
event of any liquidation, reorganization or similar insolvency proceeding with
respect to the Seller. In the event that the transfer hereunder is not
respected as a complete sale and assignment of the Trust Property to the Trust,
then, in such event, the Seller hereby grants to the Trustee on behalf of the
Certificateholders a security interest in the Trust Property. This Agreement
shall constitute a security agreement under applicable law.
Section 2.2 WARRANTIES OF THE SELLER AS TO EACH RECEIVABLE. The
Seller hereby makes the following warranties as to each Receivable conveyed by
it to the Trust hereunder on which the Trustee shall rely in accepting the Trust
Property in trust and authenticating the Certificates. Unless otherwise
indicated, such warranties shall speak as of the Closing Date, but shall survive
the sale, transfer, and assignment of the Receivables and the other Trust
Property to the Trust.
(i) CHARACTERISTICS OF RECEIVABLES. The
Receivable has been fully and properly executed by the parties thereto
and (a) (x) has been originated by the Seller or (y) has been originated
by a Dealer for the retail sale of a Motor Vehicle in the ordinary course
of such Dealer's business, and has been purchased by the Seller from such
Dealer in the ordinary course of the Seller's business and has been
validly assigned by such Dealer to the Seller, (b) is secured by a valid,
subsisting, and enforceable first priority security interest in favor of
the Seller in the Financed Vehicle (subject to administrative delays and
clerical errors on the part of the applicable government agency), which
security interest is assignable together with such Receivable, and has
been so assigned, by the Seller to the Trustee, (c) contains or is
accompanied by a security agreement which contains customary and
enforceable provisions such that the rights and remedies of the secured
party are adequate for realization of the benefits of the security
interest in the subject collateral, (d) provides at origination for level
monthly payments (PROVIDED that the first and the last payment may be
less than or minimally more than the level payment), which fully amortize
the Amount Financed over the original term and provides for interest at
the related Contract Rate and (e) provides for a payment that will fully
pay the Principal Balance of such Receivable as of the first day of the
Collection Period in which the Receivable is fully prepaid, together with
interest accrued at least to the date of prepayment at the related
Contract Rate.
(ii) SCHEDULE OF RECEIVABLES. The information set
forth in the Schedule of Receivables with respect to such Receivable has
been produced from the
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Electronic Ledger and was true and correct as of the close of business
of the Servicer on the Cutoff Date; and the Cutoff Date Principal Balance
and the Contract Rate of the Receivable have been accurately and
correctly calculated.
(iii) COMPLIANCE WITH LAWS. To the best
knowledge of the Seller, the Receivable, and the sale of the related
Financed Vehicle, complied at the time it was originated or made, and
will comply as of the Closing Date, in all material respects with all
requirements of applicable federal, state, and local laws, and
regulations thereunder, including, to the extent applicable, usury
laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity
Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, Federal Reserve Board Regulations
B and Z, and any other consumer credit, equal opportunity, and
disclosure laws; PROVIDED, HOWEVER, that if, notwithstanding the best
knowledge of the Seller, any Receivable, or the sale of the related
Financed Vehicle, fails to comply with applicable law in the manner
and to the extent set forth herein, the Seller shall repurchase such
Receivable in accordance with the terms and conditions set forth in
Section 2.4, but such failure to comply with such laws shall not
constitute a breach of this warranty except for purposes of Section
2.4.
(iv) BINDING OBLIGATION. The Receivable
constitutes the genuine, legal, valid, and binding payment obligation in
writing of the Obligor, enforceable by the holder thereof in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally.
(v) NO GOVERNMENT OBLIGOR. The Obligor on the
Receivable is not the United States of America or any State thereof or
any local government, or any agency, department, political subdivision or
instrumentality of the United States of America or any State thereof or
any local government.
(vi) RECEIVABLES IN FORCE. The Receivable has not
been satisfied, subordinated, or rescinded and the Financed Vehicle has
not been released from the lien granted by the Receivable in whole or in
part.
(vii) NO AMENDMENT OR WAIVER. No material
provision of the Receivable has been amended, waived, altered or modified
in any respect, except pursuant to a document, instrument or writing
included in the Receivable File and reflected in the Electronic Ledger
and no such amendment, waiver, alteration or modification causes such
Receivable not to conform to the other warranties contained in this
Section.
(viii) NO DEFENSES. The Receivable is not subject
to any right of rescission, setoff, counterclaim or defense, including
the defense of usury, and the operation of any of the terms of the
Receivable, or the exercise of any right thereunder, will not render the
Receivable unenforceable in whole or in part or subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and no such right of rescission, setoff, counterclaim or defense
has been asserted with respect thereto.
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(ix) NO LIENS. To the best knowledge of the
Seller, there are no liens or claims, including liens for work, labor,
materials or unpaid state or federal taxes relating to the Financed
Vehicle, that are or may be liens prior to, or equal to or coordinate
with, the lien granted by the Obligor.
(x) NO DEFAULT. Except for payment delinquencies
continuing for a period of not more than 30 days as of the Cutoff Date,
no default, breach, violation, or event permitting acceleration under the
terms of any Receivable exists and no continuing condition that with
notice or lapse of time, or both, would constitute a default, breach,
violation, or event permitting acceleration under the terms of any
Receivable has arisen; and the Seller has not waived any of the
foregoing.
(xi) INSURANCE. If the Principal Balance of the
Receivable exceeds $3,500 (or such other amount as the Servicer
determines, consistent with the standard of care required by
Section 3.1), the Financed Vehicle securing such Receivable is insured
under an Insurance Policy, the premiums for which have been paid in full,
and such Insurance Policy is in full force and effect.
(xii) GOOD TITLE. The Receivable has not been
sold, assigned, pledged or otherwise conveyed by the Seller to any Person
other than the Trust, and, immediately prior to the transfer and
assignment herein contemplated, the Seller had good and marketable title
to the Receivable free and clear of any encumbrance, equity, lien,
pledge, charge, claim, security interest or other right or interest of
any other Person, was the sole owner thereof and had full right and power
to transfer and assign the Receivable to the Trust. Immediately upon the
transfer and assignment of the Receivable to the Trust, the Trust shall
have good and marketable title to the Receivable, free and clear of any
encumbrance, equity, lien, pledge, charge, claim, security interest or
other right or interest of any other Person; and all filings and actions
required by the Relevant UCC with respect to the transfer of Receivables
associated with the sale of the same have been accomplished for the
purpose of complying with the Relevant UCC provisions governing the
relative priority of interests of parties in the Receivables.
(xiii) LAWFUL ASSIGNMENT. The Receivable has not
been originated in, and is not subject to the laws of, any jurisdiction
under which the sale, transfer, and assignment of such Receivable
hereunder or pursuant to transfers of the Certificates are unlawful,
void, or voidable.
(xiv) ALL FILINGS MADE. All filings have been
made, including filings under the Relevant UCC, which are necessary in
any jurisdiction to cause the ownership and title interests of the Trust
in the Receivables to be afforded priority over competing claims of the
holders of security interests or other claims against whom such filings
can assure priority.
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(xv) VALID SECURITY INTEREST. On the Closing
Date, there will exist a valid, subsisting and enforceable first priority
perfected security interest in the Financed Vehicle securing the
Receivable (subject to administrative delays and clerical errors on the
part of the applicable government agency and to any statutory or other
lien arising by operation of law after the Closing Date which is prior to
such security interest). With respect to the foregoing, the Seller
hereby covenants to take all action necessary such that, at such time as
enforcement of such security interest is sought, there shall exist a
valid, subsisting and enforceable first priority perfected security
interest in the Financed Vehicle for the benefit of the Trust (subject to
administrative delays and clerical errors on the part of the applicable
government agency and any statutory or other lien arising by operation of
law after the Closing Date which is prior to such interest).
(xvi) CAPACITY OF PARTIES. All parties to the
Receivable had capacity to execute the Receivable.
(xvii) CHATTEL PAPER. The Receivables are "chattel
paper" as defined by the Relevant UCC.
(xviii) ONE ORIGINAL. There is only one
executed original of each Receivable, which original has been delivered
by the Seller to the Trustee as provided in Section 2.5(i).
(xix) OBLIGATIONS; NO IMPAIRMENT. The Seller has
duly fulfilled all obligations on its part to be fulfilled under, or in
connection with, the Receivable and has done nothing to impair the rights
of the Trust, the Class A Certificateholders or the Class B
Certificateholders in the Receivable or the proceeds thereof.
(xx) NO FRAUD OR MISREPRESENTATION. To the best
knowledge of the Seller, in the case of a Receivable originated by a
Dealer, the Receivable was originated by a Dealer and sold by such Dealer
to the Seller without any conduct constituting fraud or misrepresentation
on the part of such Dealer; PROVIDED, HOWEVER, that if, notwithstanding
the best knowledge of the Seller, any Receivable was originated and sold
under conduct constituting fraud or misrepresentation on the part of such
Dealer, the Seller shall repurchase such Receivable in accordance with
the terms and conditions of Section 2.4, with the existence of such
conduct not constituting a breach of this warranty, except for purposes
of Section 2.4.
(xxi) POSSESSION. Immediately prior to the Closing
Date, the Seller (or an Affiliate thereof) will have possession of the
original Receivable and the related Receivable File, and there are and
there will be no custodial agreements in effect materially adversely
affecting the right or ability of the Seller to make, or cause to be
made, any delivery required hereunder.
(xxii) BULK TRANSFER LAWS. The transfer, assignment
and conveyance of the Receivable and Receivable Files by the Seller
pursuant to this Agreement
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is not subject to the bulk transfer or any similar statutory provisions
in effect in any applicable jurisdiction.
Section 2.3 WARRANTIES AS TO THE RECEIVABLES IN THE AGGREGATE
AND ACTIONS OF THE SELLER. The Seller hereby makes the following warranties as
to the Receivables conveyed by it to the Trust hereunder on which the Trustee
shall rely in accepting the Trust Property in trust and authenticating the
Certificates. Unless otherwise indicated, such warranties shall speak as of the
Closing Date, but shall survive the sale, transfer, and assignment of the
Receivables and the other Trust Property to the Trust.
(i) AMOUNTS. The aggregate Cutoff Date Principal
Balances of the Receivables are equal to the Original Pool Balance.
(ii) INDIVIDUAL CHARACTERISTICS. The Receivables
have the following individual characteristics as of the close of business
of the Servicer on the Cutoff Date: (a) the obligations of the Obligors
on the Receivables are secured by security interests in new or used
automobiles or light-duty trucks; (b) each Receivable has a Contract Rate
of at least ____% and not more than _____%; (c) each Receivable had a
remaining maturity, as of the Cutoff Date, of not less than 6 months and
not more than __ months; (d) each Receivable had a remaining Principal
Balance of not less than $___ and not more than $______ as of the Cutoff
Date; (e) no Receivable was more than __ days delinquent as of the Cutoff
Date; (f) no Financed Vehicle had been repossessed as of the Cutoff Date;
(g) each Receivable is a motor vehicle retail installment sale contract
or motor vehicle retail installment loan; (h) each Receivable provides
for allocation of payments between principal and interest by the Simple
Interest Method; (i) the Dealers of the Financed Vehicles, if any, have
no participation in, or other right to receive, any proceeds of the
Receivable; and (j) each Receivable was originated on or after
_________________. The Receivables were selected utilizing selection
procedures that were not adverse to the Certificateholders.
(iii) AGGREGATE CHARACTERISTICS. The Receivables
had the following characteristics in the aggregate as of the Cutoff Date:
(a) approximately _____% of the Original Pool Balance was attributable to
loans for purchases of new Financed Vehicles, and approximately _____% of
the Original Pool Balance was attributable to loans for purchases of used
Financed Vehicles; (b) approximately _____% of the Original Pool Balance
was attributable to Receivables the mailing addresses of the Obligors
with respect to which are located in the States of Utah and Idaho; (c)
the weighted average Contract Rate of the Receivables was ______%; (d)
approximately ____% of the Original Pool Balance was attributable to
Receivables originated by the Seller; (e) approximately _____% of the
Original Pool Balance was attributable to Receivables that are Dealer
Loans; and (f) approximately ____% of the Original Pool Balance was
attributable to Receivables that are subject to a repurchase obligation
by the originating Dealer upon default and repossession.
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(iv) COMPUTER TAPE. The Computer Tapes made
available by the Seller were complete and accurate as of the Cutoff Date
and include a description of the same Receivables that are described in
the Schedule of Receivables.
(v) MARKING RECORDS. By the Closing Date, the
Seller will have caused the portions of the Electronic Ledger relating to
the Receivables to be clearly and unambiguously marked to show that such
Receivables constitute part of the Trust Property and are owned by the
Trust in accordance with the terms of the trust created hereunder.
(vi) NO ASSIGNMENT. As of the Closing Date, the
Seller shall not have taken any action to convey any right to any Person
that would result in such Person having a right to payments received
under the Insurance Policies, the Dealer Agreements, the Dealer
Assignments or payments due under the Receivables that is senior to, or
equal with, that of the Trust.
Section 2.4 REPURCHASE UPON BREACH. The Seller, the Servicer,
or the Trustee, as the case may be, shall inform the other parties promptly, in
writing, upon the discovery of any breach or failure to be true of the
warranties (including in the case of Sections 2.2(iii), (ix) and (xix) any
breach or failure which would have occurred if such warranty had not been made
to the best knowledge of the Seller) made by the Seller pursuant to Section 2.2
or Section 2.3. Unless the breach or failure shall have been cured by the last
day of the Collection Period which includes the 60th day after the date on which
the Seller becomes aware of, or receives written notice from the Trustee or the
Servicer of, such breach or failure, the Seller shall repurchase from the Trust,
without recourse, representation or warranty, other than that the Trustee, on
behalf of the Trust, has not imposed any liens on the Receivable to be
repurchased, any Receivable, the interests of the Trust and the
Certificateholders in which is materially and adversely affected by such breach
or failure. Such purchase shall occur as of the last day of such Collection
Period. In consideration of the repurchase of a Receivable hereunder, the
Seller shall remit the Purchase Amount of such Receivable, no later than the
close of business (New York time) on the applicable Deposit Date, in the manner
specified in Section 4.3(b). Any breach of a representation relating to the
status of a Receivable as a Simple Interest Receivable or the Contract Rate of a
Receivable shall be deemed to materially and adversely affect the
Certificateholders. Except as provided in Section 7.2, the sole remedy of the
Trust, the Trustee, or the Certificateholders with respect to a breach or
failure to be true of the warranties made by the Seller pursuant to Section 2.2
or Section 2.3 shall be to require the Seller to repurchase Receivables pursuant
to this Section.
Section 2.5 CUSTODY OF RECEIVABLE FILES. To assure uniform
quality in servicing the Receivables and to reduce administrative costs, the
Trustee, on behalf of the Trust, upon the execution and delivery of this
Agreement, revocably appoints the Servicer, as agent, and the Servicer accepts
such appointment and revocably appoints First Security Service Company, to act
as custodian on behalf of the Trustee of the following documents or instruments,
which are hereby constructively delivered to the Trustee with respect to each
Receivable (collectively, a "RECEIVABLE FILE"):
(i) the original of the Receivable;
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(ii) any documents evidencing the existence of any
Insurance Policies;
(iii) copies of the original credit application,
fully executed by the Obligor;
(iv) either (x) the original certificate of title,
or such other documents as the Seller shall keep on file, in accordance
with its customary procedures, evidencing the security interest of the
Seller in the Financed Vehicle or the efforts (including the proof of
application for notice of lien or other evidence of such security
interest) made by the Seller to perfect such security interest; or (y)
with respect to jurisdictions in which the certificate of title or other
evidence of ownership is not issued to the holder of a lien, evidence of
the Seller's security interest in the Financed Vehicle (or the efforts
made by the Seller to perfect such security interest (including the proof
of application for notice of lien or other evidence of such security
interest)), in each case issued by the appropriate governmental agency of
the State in which such Financed Vehicle is registered;
(v) electronic entries and originals or true
copies of all documents, instruments or writings relating to extensions,
amendments or waivers of the Receivable;
(vi) in the case of a Dealer Loan, the Dealer
Assignment; and
(vii) any and all other documents or electronic
records that the Seller or the Servicer, as the case may be, shall keep
on file, in accordance with its customary procedures, relating to the
Receivable, the Obligor or the Financed Vehicle.
Section 2.6 DUTIES OF THE SERVICER AS CUSTODIAN.
(a)SAFEKEEPING. The Servicer, in its capacity as custodian, shall hold, or
cause an Affiliate to hold, the Receivable Files on behalf of the Trustee for
the benefit of all present and future Certificateholders, and maintain such
accurate and complete accounts, records, and computer systems pertaining to each
Receivable as shall enable the Servicer and the Trustee to comply with the terms
and provisions of this Agreement applicable to it. In performing its duties as
custodian hereunder, the Servicer shall act with reasonable care, exercising the
degree of skill and care that the Servicer exercises with respect to similar
motor vehicle retail installment sale contracts owned and/or serviced by it and
that is consistent with industry standards. The Servicer shall implement
written policies and procedures, signed by a Servicing Officer, with respect to
the handling and custody of the Receivable Files, so that the integrity and
physical possession of the Receivable Files shall be maintained, and, in
general, shall attend to all details in connection with maintaining custody of
the Receivable Files as agent of the Trustee, for the benefit of the Trust and
the Certificateholders. The Servicer shall also maintain a current inventory of
the Receivables and conduct, or cause to be conducted, periodic audits (to the
extent required by Section 3.11) of the Receivable Files held by it under this
Agreement and the related accounts, records, and computer systems, and shall
otherwise maintain the Receivable Files in such a manner as shall enable the
Trustee to verify, if the Trustee so elects, the accuracy of the
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record keeping of the Servicer. The Servicer shall promptly report to the
Trustee any failure on its part to hold the Receivable Files and maintain its
accounts, records, and computer systems as herein provided, and promptly take
appropriate action to remedy any such failure.
(b) MAINTENANCE OF AND ACCESS TO RECORDS. The Servicer shall
maintain each Receivable File at the location specified in Schedule B to this
Agreement, or at such other office of the Servicer or an Affiliate within the
State of Utah or Idaho (or, in the case of any successor servicer, within the
State in which its principal place of business is located) as shall be specified
to the Trustee by 30 days' prior written notice. The Servicer shall make
available to the Trustee or its Authorized Officers (or, when requested in
writing by the Trustee, to its attorneys or auditors) and to Certificateholders
(for legitimate business purposes relating to the Trust) the Receivable Files
and the related accounts, records, and computer systems maintained by the
Servicer at such times during the normal business hours of the Servicer as the
Trustee shall reasonably instruct.
(c) RELEASE OF DOCUMENTS. Upon written instructions from the
Trustee, the Servicer shall release any document in the Receivable Files to the
Trustee, the Trustee's agent, or the Trustee's designee, as the case may be, at
such place or places as the Trustee may designate, as soon thereafter as is
practicable. Any document so released shall be handled by the Trustee with due
care and returned to the Servicer for safekeeping as soon as the Trustee or its
agent or designee, as the case may be, shall have no further need therefor.
(d) TITLE TO RECEIVABLES. The Servicer agrees that, in respect
of any Receivable held by it as custodian hereunder, the Servicer will not at
any time have or in any way attempt to assert any interest in such Receivable or
the related Receivable File, other than solely for the purpose of collecting or
enforcing the Receivable for the benefit of the Trust and that the entire
equitable interest in such Receivable and the related Receivable File shall at
all times be vested in the Trust.
Section 2.7 INSTRUCTIONS; AUTHORITY TO ACT. The Servicer shall
be deemed to have received proper instructions with respect to the Receivable
Files upon its receipt of written instructions signed by an Authorized Officer
of the Trustee. A certified copy of excerpts of bylaws or certain resolutions
of the Board of Directors of the Trustee shall constitute conclusive evidence of
the authority of any such Authorized Officer to act and shall be considered in
full force and effect until receipt by the Servicer of written notice to the
contrary given by the Trustee.
Section 2.8 CUSTODIAN'S INDEMNIFICATION. The Servicer, in its
capacity as custodian, shall indemnify and hold harmless the Trustee, its
officers, directors, employees and agents and the Certificateholders from and
against any and all liabilities, obligations, losses, compensatory damages,
payments, costs or expenses (including legal fees if any) of any kind whatsoever
that may be imposed on, incurred, or asserted against the Trustee or the
Certificateholders as the result of any act or omission relating to the
maintenance and custody of the Receivable Files; PROVIDED, HOWEVER, that the
Servicer shall not be liable hereunder to the extent, but only to the extent,
that such liabilities, obligations, losses, compensatory damages, payments,
costs or expenses result from the willful misfeasance, bad faith, or negligence
of the Trustee. The obligations of the Servicer, in its capacity as custodian
under this Section 2.8, shall survive the resignation or removal of the Servicer
as custodian under Section 2.9 hereof.
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Section 2.9 EFFECTIVE PERIOD AND TERMINATION. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and
shall continue in full force and effect until terminated pursuant to this
Section 2.9. If the Servicer resigns as a Servicer under Section 8.5, or if
all of the rights and obligations of the Servicer shall have been terminated
under Section 9.1, the appointment of the Servicer as custodian hereunder may
be terminated by the Trustee or by the holders of Certificates evidencing not
less than a majority of the aggregate outstanding principal balance of the
Class A Certificates and the Class B Certificates taken together as a single
class, in the same manner as the Trustee or such holders may terminate the
rights and obligations of the Servicer under Section 9.1. The Trustee may
terminate the Servicer's appointment as a custodian hereunder at any time
with cause, or with 30 days' prior notice without cause, upon written
notification to the Servicer. As soon as practicable after any termination
of such appointment the Servicer shall deliver, or cause to be delivered, the
Receivable Files to the Trustee, the Trustee's agent or the Trustee's
designee at such place or places as the Trustee may reasonably designate.
Notwithstanding any termination of the Servicer as custodian hereunder (other
than in connection with a termination resulting from the termination of the
Servicer, as such, pursuant to Section 9.1), the Trustee agrees that, from
and after the date of such termination, and for so long as the Servicer is
acting as such pursuant to this Agreement, the Trustee shall provide, or
cause the successor custodian to provide, access to the Receivable Files to
the Servicer, at the times as the Servicer shall request, for the purpose of
carrying out its duties and responsibilities with respect to the servicing of
the Receivables hereunder.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST PROPERTY
Section 3.1 DUTIES OF THE SERVICER. (a) The Servicer, acting
alone and/or through subservicers as provided in this Section 3.1, shall
administer the Receivables with reasonable care. The Servicer's duties shall
include, but not be limited to, the collection and posting of all payments,
responding to inquiries by Obligors on the Receivables, or by federal, state, or
local governmental authorities, investigating delinquencies, reporting tax
information to Obligors, furnishing monthly and annual statements to the Trustee
with respect to distributions, monitoring the status of the Insurance Policies
with respect to Financed Vehicles and providing collection and repossession
services in the event of Obligor default. The Servicer shall also administer
and enforce all rights and responsibilities of the holder of the Receivables
provided for in the Dealer Agreements, the Dealer Assignments and the Insurance
Policies, to the extent that such Dealer Agreements, Dealer Assignments and
Insurance Policies relate to the Receivables, the Financed Vehicles or the
Obligors. In performing its duties as Servicer hereunder, the Servicer will
exercise that degree of skill and care that the Servicer exercises with respect
to similar motor vehicle retail installment sale contracts or motor vehicle
retail installment loans owned and/or serviced by the Servicer and that is
consistent with prudent industry standards. Without limiting the generality of
the foregoing, the Servicer is hereby authorized and empowered by the Trustee to
execute and deliver, on behalf of itself, the Trust, the Trustee, and the
Certificateholders, any and all instruments of satisfaction or cancellation, or
of partial or full release or discharge, and all other comparable instruments,
with respect to the
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Receivables or to the Financed Vehicles, all in accordance with this
Agreement; PROVIDED, HOWEVER, that notwithstanding the foregoing, the
Servicer shall not, except pursuant to an order from a court of competent
jurisdiction, release an Obligor from payment of any unpaid amount under any
Receivable or waive the right to collect the unpaid balance (including
accrued interest) of any Receivable from the Obligor, except in connection
with a DE MINIMIS deficiency which the Servicer would not attempt to collect
in accordance with its customary procedures. If the Servicer shall commence
a legal proceeding to enforce a Receivable, the Trustee shall thereupon be
deemed to have automatically assigned such Receivable to the Servicer, which
assignment shall be solely for purposes of collection. The Trustee shall
furnish the Servicer with any powers of attorney and other documents or
instruments necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
From time to time during the term of this Agreement, the Servicer
may enter into agreements with (i) one or more Affiliates for the servicing and
administration of certain of the Receivables; PROVIDED, HOWEVER, that any such
subservicer shall be and shall remain, for so long as it is acting as
subservicer, an Eligible Servicer, and any fees paid to such subservicer shall
be paid by the Servicer and not out of the proceeds of the Trust, and any such
subservicer shall agree to service the Receivables in a manner consistent with
the terms of this Agreement or (ii) subcontractors who are in the business of
performing specific duties delegated to it.
(b) References in this Agreement to actions taken, to be taken,
permitted to be taken, or restrictions on actions permitted to be taken by the
Servicer in servicing the Receivables and other actions taken, to be taken,
permitted to be taken, or restrictions on actions to be taken with respect to
the Trust Property shall include actions taken, to be taken, permitted to be
taken, or restrictions on actions permitted to be taken by a subservicer or
subcontractor on behalf of the Servicer and references herein to payments or
Recoveries received by the Servicer shall include payments or Recoveries
received by a subservicer or subcontractor, irrespective of whether such
payments or Recoveries are actually deposited in the Certificate Account by such
subservicer or subcontractor. Any subservicing agreement will contain terms and
provisions substantially identical to the terms and provisions of this Agreement
and such other terms and provisions as are not inconsistent with this Agreement
and as the Servicer and the subservicer have agreed.
(c) The Servicer shall be entitled to terminate any
subservicing or subcontracting agreement in accordance with the terms and
conditions of such subservicing or subcontracting agreement and without any
limitation by virtue of this Agreement; PROVIDED, HOWEVER, that, in the event of
termination of any subservicing or subcontracting agreement by the Servicer, the
Servicer shall either act directly as servicer of the related Receivable or
enter into a subservicing or subcontracting agreement with a successor
subservicer or subcontractor which will be bound by the terms of the related
subservicing or subcontracting agreement.
(d) As a condition to the appointment of any subservicer other
than an Affiliate of the Seller, the Servicer shall notify the Trustee in
writing and the Rating Agencies before such assignment becomes effective and
such subservicer shall be required to execute and deliver an instrument in which
it agrees that, for so long as it acts as subservicer of the Receivables and the
other Trust Property being serviced by it, the covenants, conditions,
indemnities, duties, obligations
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and other terms and provisions of this Agreement applicable to the Servicer
hereunder shall be applicable to it as subservicer, that it shall be required
to perform its obligations as subservicer for the benefit of the Trust as if
it were the Servicer hereunder (subject, however, to the right of the
Servicer to direct the performance of such obligations in accordance with
this Agreement) and that, notwithstanding any provision of a subservicing
agreement to the contrary, such subservicer shall be directly liable to the
Trustee and the Trust (notwithstanding any failure by the Servicer to perform
its duties and obligations hereunder) for the failure by such subservicer to
perform its obligations hereunder or under any subservicing agreement, and
that (notwithstanding any failure by the Servicer to perform its respective
duties and obligations hereunder) the Trustee may enforce the provisions of
this Agreement and any subservicing agreement against the subservicer for the
benefit of the Trust and the Certificateholders, without diminution of such
obligations or liabilities by virtue of any subservicing agreement, by virtue
of any indemnification provided thereunder or by virtue of the fact that the
Servicer is primarily responsible hereunder for the performance of such
duties and obligations, as if a subservicer alone were servicing and
administering, under this Agreement, the Receivables and the other Trust
Property being serviced by it under the subservicing agreement.
(e) Notwithstanding any subservicing or subcontracting
agreement, any of the provisions of this Agreement relating to agreements or
arrangements between the Servicer or a subservicer or subcontractor or reference
to actions taken through such Persons or otherwise, the Servicer shall remain
obligated and liable to the Trust, the Trustee and the Certificateholders for
the servicing and administering of the Receivables and the other Trust Property
in accordance with the provisions of this Agreement (including for the deposit
of payments and Recoveries received by a subservicer or subcontractor,
irrespective of whether such payments or Recoveries are actually remitted to the
Servicer or deposited in the Certificate Account by such subservicer or
subcontractor; PROVIDED that if such amounts are so deposited, the Servicer
shall have no further obligation to do so) without diminution of such obligation
or liability by virtue of such subservicing or subcontracting agreements or
arrangements or by virtue of indemnification from a subservicer or
subcontractor, to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Receivables and the
other Trust Property. The Servicer shall be entitled to enter into any
agreement with a subservicer or subcontractor for indemnification of the
Servicer, and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
(f) In the event the Servicer shall for any reason no longer be
acting as such (including by reason of the occurrence of an Event of Servicing
Termination), the successor servicer may, in its discretion, thereupon assume
all of the rights and obligations of the outgoing Servicer under a subservicing
agreement. In such event, the successor servicer shall be deemed to have
assumed all of the outgoing Servicer's interest therein and to have replaced the
outgoing Servicer as a party to such subservicing agreement to the same extent
as if such subservicing agreement had been assigned to the successor servicer,
except that the outgoing Servicer shall not thereby be relieved of any liability
or obligation on the part of the outgoing Servicer to the subservicer under such
subservicing agreement. The outgoing Servicer shall, upon request of the
Trustee, but at the expense of the outgoing Servicer, deliver to the successor
servicer all documents and records relating to each such subservicing agreement
and the Receivables and the other Trust Property then being serviced thereunder
and an accounting of amounts collected and held by it and otherwise use its best
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efforts to effect the orderly and efficient transfer of the subservicing
agreement to the successor servicer. In the event that the successor
servicer elects not to assume a subservicing agreement, the outgoing
Servicer, at its expense, shall cause the subservicer to deliver to the
successor servicer all documents and records relating to the Receivables and
the other Trust Property being serviced thereunder and all amounts held (or
thereafter received) by such subservicer (together with an accounting of such
amounts) and shall otherwise use its best efforts to effect the orderly and
efficient transfer of servicing of the Receivables and the other Trust
Property being serviced by such subservicer to the successor servicer. The
relationship of the Servicer (and of any successor to the Servicer as
servicers under this Agreement) to the Trustee under this Agreement is
intended by the parties to be that of independent contractors and not that of
joint venturers, partners or agents.
Section 3.2 COLLECTION OF RECEIVABLE PAYMENTS; CREDIT DEFERRALS;
OPTIONAL PAYMENT DEFERRALS. (a) The Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the
Receivables as and when the same shall become due, and otherwise act with
respect to the Receivables, the Dealer Agreements, the Dealer Assignments, the
Insurance Policies and the other Trust Property in such manner as will, in the
reasonable judgment of the Servicer, maximize the amount to be received by the
Trust with respect thereto, in accordance with the standard of care required by
Section 3.1. Other than as explicitly permitted in Section 3.2(b) or Section
3.2(c) below, the Servicer will not increase or decrease the number or amount of
any Scheduled Payment, or the Amount Financed under a Receivable or the Contract
Rate of a Receivable, or extend, rewrite or otherwise modify the payment terms
of a Receivable, release collateral securing a Receivable, or otherwise modify
or waive any material term of a Receivable.
(b) Notwithstanding the foregoing, the Servicer may grant to an
Obligor one or more payment deferrals (each, a "CREDIT DEFERRAL") if (i) the
Servicer determines that, absent such deferral, a payment default by the Obligor
is reasonably foreseeable; (ii) the Servicer would grant such Credit Deferral if
the Receivable were serviced by it for its own account and in accordance with
its customary standards; (iii) the cumulative extensions with respect to any
Receivable shall not cause the term of such Receivable to extend beyond the last
day of the Collection Period immediately preceding the Final Scheduled
Distribution Date; (iv) such extensions in the aggregate do not exceed two
months for each twelve months of the original term of the Receivable; and (v)
interest continues to accrue on the outstanding Principal Balance of the
Receivable during the term of such Credit Deferral. The Servicer may charge a
fee in connection with the grant of Credit Deferrals in accordance with its
customary practices and procedures, which fee shall be added to the Principal
Balance of the related Receivable. In the event that the Servicer fails to
comply with the provisions of the first sentence of this Section 3.2(b), the
Servicer shall be required to purchase the Receivable or Receivables affected
thereby in accordance with Section 3.7 hereof.
(c) On or after the Closing Date, the Servicer shall notify
each Obligor meeting the requirements set forth below, in writing, at least
three weeks prior to the first month with respect to which such Obligor would be
entitled to an optional extension pursuant to this Section 3.2(c), that such
qualifying Obligor, at such Obligor's option during the remaining term of the
Receivable, shall be entitled to a non-credit related extension of any regularly
scheduled payment due under a Receivable (each, an "OPTIONAL PAYMENT DEFERRAL")
if such qualifying Obligor satisfies the following conditions:
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(i) at the time of such extension, such
Receivable shall not have been the subject of two such Optional Payment
Deferrals in the related fiscal year of the Trust;
(ii) such Receivable shall (x) not have been the
subject of any Credit Deferral within 90 days of the related Optional
Payment Deferral, or (y) not have been the subject of more than two
Credit Deferrals since its date of origination;
(iii) at the time of such Optional Payment
Deferral, the Receivable shall not have been more than 30 days past due
twice or more;
(iv) at the time of such Optional Payment
Deferral, the Receivable shall not be more than 15 days or more
delinquent;
(v) at the time of such Optional Payment
Deferral, the remaining term of the Receivable at such time shall be
greater than 20%, but not more than 95%, of the original specified term
of such Receivable; and
(vi) in the reasonable judgment of the Servicer,
the Receivable is not likely to become a Defaulted Receivable following
such Optional Payment Deferral.
The Servicer may charge a fee in connection with the grant of
Optional Payment Deferrals in accordance with its customary practices and
procedures, which fee shall be added to the Principal Balance of the related
Receivable. If, as an inadvertent result of any extension granted pursuant to
this Section 3.2(e), such extension breached any of the terms of the preceding
criteria (i) through (vi) or caused the term of such Receivable to extend beyond
the last day of the Collection Period immediately preceding the Final Scheduled
Distribution Date, then the Servicer shall be obligated to purchase such
Receivable pursuant to Section 3.7.
Section 3.3 REALIZATION UPON RECEIVABLES. On behalf of the
Trust, the Servicer shall charge off a Receivable as a Defaulted Receivable in
accordance with its customary servicing procedures and shall use its best
efforts to repossess and liquidate the Financed Vehicle securing any Defaulted
Receivable as soon as feasible after default, in accordance with the standard of
care required by Section 3.1. In taking such action, the Servicer shall follow
such customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of motor vehicle retail installment sale contracts,
and as are otherwise consistent with the standard of care required under Section
3.1, which shall include the exercise of any rights of recourse to Dealers under
the Dealer Agreements and Dealer Assignments (or rights to compel repurchase
against third Persons) and selling the Financed Vehicle at public or private
sale. The Servicer shall be entitled to recover all reasonable expenses
incurred by it in the course of repossessing and liquidating a Financed Vehicle
into cash proceeds, but only out of the cash proceeds of such Financed Vehicle,
any deficiency obtained from the Obligor or any amounts received from the
related Dealer. The foregoing shall be subject to the provision that, in any
case in which a Financed Vehicle shall have suffered damage, the Servicer shall
not be obligated to expend funds in connection with the repair
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or the repossession of such Financed Vehicle unless it shall determine in its
discretion that such repair and/or repossession will increase the Liquidation
Proceeds or Recoveries of the related Receivable by an amount equal to or
greater than the amount of such expenses (which, in any event, shall not be
unreasonable).
If the Servicer elects to commence a legal proceeding to enforce a
Dealer Agreement or Dealer Assignment, the act of commencement shall be deemed
to be an automatic assignment from the Trustee to the Servicer of the rights of
recourse under such Dealer Agreement and Dealer Assignment. If, however, in any
enforcement suit or legal proceeding, it is held that the Servicer may not
enforce a Dealer Agreement or Dealer Assignment on the grounds that it is not a
real party in interest or a Person entitled to enforce the Dealer Agreement or
Dealer Assignment, the Trustee, at the Servicer's expense, or the Seller, at the
Seller's expense, shall take such steps as the Servicer deems necessary to
enforce the Dealer Agreement or Dealer Assignment, including bringing suit in
its name or the names of the Certificateholders.
Section 3.4 PHYSICAL DAMAGE INSURANCE. (a) The Servicer shall
require that each Financed Vehicle be insured under an Insurance Policy naming
the Seller as loss payee and in the event that an Insurance Policy shall lapse
or shall be otherwise terminated and the Principal Balance of the Receivable
related thereto is in excess of $3,500 (or such other amount as the Servicer
determines, consistent with the standard of care required by Section 3.1), the
Servicer, at its expense (and not at the expense of the Trust), shall procure a
substitute policy of insurance, issued by an insurer having a claims-paying
ability the same as, or better than, that of the insurer under the terminated
Insurance Policy and naming the Servicer or the Seller as loss payee. Any
substitute Insurance Policy procured hereunder shall provide coverage against
similar risks, shall be subject to the same, or a lower, deductible and shall
contain loss payable clauses and other provisions no less favorable to the named
insured than those contained in the terminated Insurance Policy. The cost of
such Insurance Policy may, to the extent consistent with applicable law and the
terms of the applicable Receivable, be added to the amount owing by an Obligor,
but shall be treated as a separate receivable not owned by the Trust for all
purposes hereunder and, in furtherance of the foregoing, shall not be included
in the definition of Principal Balance or Pool Balance and collections with
respect thereto shall not be part of Available Interest or Available Principal.
In the event that any payment by an Obligor is insufficient to pay the payment
currently due on the Receivable and the amount due on the receivable arising
from the cost of such Insurance Policy, the payment shall be divided PRO RATA
based on the amount currently due on each.
(b) The Servicer may xxx to enforce or collect upon the
Insurance Policies, in its own name, if possible, or as agent for the Trust. If
the Servicer elects to commence a legal proceeding to enforce an Insurance
Policy, the act of commencement shall be deemed to be an automatic assignment of
the rights of the Trust under such Insurance Policy to the Servicer for purposes
of collection only. If, however, in any enforcement suit or legal proceeding it
is held that the Servicer may not enforce an Insurance Policy on the grounds
that it is not a real party in interest or a holder entitled to enforce the
Insurance Policy, the Trustee, on behalf of the Trust, at the Servicer's
expense, or the Seller, at Servicer's expense, shall take such steps as the
Servicer deems necessary to enforce such Insurance Policy, including bringing
suit in its name or the names of the Certificateholders.
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Section 3.5 MAINTENANCE OF SECURITY INTERESTS IN FINANCED
VEHICLES. The Servicer, in accordance with the standard of care required under
Section 3.1, shall take such steps as are necessary to maintain perfection of
the security interest created by each Receivable in the related Financed Vehicle
for the benefit of the Trust. The Trustee, on behalf of the Trust, hereby
authorizes the Servicer, and the Servicer hereby agrees, to take such steps as
are necessary to re-perfect such security interest on behalf of the Trust in the
event the Servicer receives notice of the relocation of a Financed Vehicle. If
there has been an Event of Servicing Termination (or the occurrence of an event
specified in clause (iii) or (iv) of Section 9.1(a) with respect to the Seller),
upon the request of the Trustee, the Servicer, at its expense, shall promptly
and duly execute and deliver such documents and instruments, and take such other
actions as may be necessary, as evidenced by an Opinion of Counsel delivered to
the Trustee, to perfect the Trust's interest in the Trust Property against all
other Persons, including the delivery of the Receivables and the Receivable
Files to the Trustee, its agent, or its designee, the endorsement and delivery
of the Insurance Policies or the notification of the insurers thereunder, the
execution of transfer instruments, and the endorsement to the Trustee and the
delivery of the certificates of title to the Financed Vehicles to the
appropriate department or departments of motor vehicles (or other appropriate
governmental agency).
Section 3.6 COVENANTS OF THE SERVICER. The Servicer makes the
following covenants upon which the Trustee relies in accepting the Trust
Property in trust and in executing (on behalf of the Trust) and authenticating
the Certificates:
(i) SECURITY INTEREST TO REMAIN IN FORCE. The Financed
Vehicle securing each Receivable will not be released from the security
interest granted by the Receivable in whole or in part, except as
contemplated herein.
(ii) NO IMPAIRMENT. The Servicer will not (nor will it
permit any subservicer to) impair in any material respect the rights of
the Certificateholders in the Receivables, the Dealer Agreements, the
Dealer Assignments or the Insurance Policies or, subject to clause (iii)
below, otherwise amend or alter the terms thereof if, as a result of such
amendment or alteration, the interests of the Trust and the
Certificateholders hereunder would be materially adversely affected.
(iii) AMENDMENTS. The Servicer will not increase or
decrease the number or amount of Scheduled Payments or the Amount
Financed or the Contract Rate under a Receivable, or extend, rewrite or
otherwise waive, amend, or modify any material term of a Receivable,
except in accordance with Section 3.2.
Section 3.7 PURCHASES BY THE SERVICER. The Seller, the Servicer
or the Trustee, as the case may be, shall inform the other parties promptly, in
writing, upon the discovery (which, in the case of the Trustee, shall occur only
upon the actual knowledge of an Authorized Officer of the Trustee) of any breach
by the Servicer of its covenants under Section 3.6. Unless the breach shall have
been cured by the last day of the Collection Period which includes the 60th day
after the date on which the Servicer becomes aware of, or receives written
notice of, such breach, the Servicer shall purchase the Receivable or
Receivables from the Trust, without recourse, representation or warranty,
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other than that the Trustee, on behalf of the Trust, has not imposed any
liens on the Receivable or Receivables to be repurchased materially and
adversely affected thereby on the last day of such Collection Period;
PROVIDED, HOWEVER, that in the case of a breach of the covenant contained in
Section 3.6(iii), the Servicer shall be obligated to purchase the affected
Receivable or Receivables on the last day of the Collection Period during
which the Servicer becomes aware of, or receives written notice of, such
breach (which in all cases shall be deemed to have a material adverse effect
on the Certificateholders). If the Servicer grants an Optional Payment
Deferral pursuant to Section 3.2(c) and such deferral causes the term of the
applicable Receivable to extend beyond the last day of the Collection Period
immediately preceding the Final Scheduled Distribution Date, the Servicer
shall be obligated to purchase the applicable Receivable on the last day of
the Collection Period during which the Servicer grants such Optional Payment
Deferral. In consideration of the purchase of a Receivable hereunder, the
Servicer shall remit the Purchase Amount of such Receivable in the manner
specified in Section 4.3 on the related Deposit Date. Except as provided in
Section 8.2, the sole remedy of the Trust, the Trustee, or the
Certificateholders against the Servicer with respect to a breach pursuant to
Section 3.6 shall be to require the Servicer to purchase Receivables pursuant
to this Section 3.7.
Section 3.8 SERVICING COMPENSATION. On each Distribution Date,
the Servicer shall be paid the Basic Servicing Fee for such Distribution Date
and any unpaid Basic Servicing Fees from prior Distribution Dates to the extent
of funds available therefor in accordance with the provisions of Section 4.5,
but solely from Interest Collections. If it is acceptable to each Rating Agency
without a reduction in the rating of the Certificates, the Basic Servicing Fee
in respect of a Collection Period (together with any portion of a Basic
Servicing Fee that remains unpaid from prior Distribution Dates) at the option
of the Servicer may be paid at or as soon as possible after the beginning of
such Collection Period out of the first collections of interest received on the
Receivables serviced by the Servicer for such Collection Period. In addition,
the Servicer shall retain any late fees, prepayment charges or other fees and
charges (other than Deferral Fees) collected during the Collection Period and
the Servicer shall be paid any interest earned during the Collection Period on
deposits in the Accounts (collectively, the "SUPPLEMENTAL SERVICING FEE"). The
Servicer shall be required to pay all expenses incurred by it in connection with
its activities hereunder (including fees and expenses of the Trustee (and any
custodian appointed by the Trustee) and independent accountants, any
subservicer, taxes imposed on the Servicer or any subservicer, and expenses
incurred in connection with distributions and reports to Certificateholders)
except expenses incurred in connection with realizing upon Receivables under
Section 3.3. No transfer, sale, pledge or other disposition of the Servicer's
right to receive all or any portion of the Basic Servicing Fee shall be made,
and any such attempted transfer, sale, pledge or other disposition shall be
void, unless such transfer is made to one or more successor servicers in
connection with the assumption by any such successor servicer of the duties
hereunder pursuant to Section 9.2 and all (and not a portion) of the Basic
Servicing Fee is transferred to any such successor servicer.
Section 3.9 SERVICER'S CERTIFICATE. On or before the
Determination Date immediately preceding each Distribution Date, the Servicer
shall deliver to the Trustee and Collateral Agent a report of a Servicing
Officer substantially in the form of EXHIBIT C hereto, as certified by such
officer (each, a "SERVICER'S CERTIFICATE") containing all information necessary
to make the distributions pursuant to Section 4.5, and all information necessary
for the Trustee to send
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statements to Certificateholders pursuant to Section 4.7. The Servicer also
shall separately identify (by account number of the Receivable as it appears
in the related Schedule of Receivables) in a written notice to the Trustee
the Receivables to be repurchased by the Seller or to be purchased by the
Servicer, as the case may be, on the related Deposit Date, and each
Receivable which became a Defaulted Receivable during the related Collection
Period.
Section 3.10 ANNUAL STATEMENT AS TO COMPLIANCE. (a) The Servicer
shall deliver to the Trustee, on or before March 15 of each year, commencing
______________, an Officer's Certificate, stating that (i) a review of the
activities of the Servicer during the preceding calendar year (or shorter
period, in the case of the first such Officer's Certificate) and of its
performance of its obligations under this Agreement has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based on
such review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year (or shorter period, in the case of the first such
certificate), or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof.
(b) The Servicer shall deliver to the Trustee, promptly upon
having knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an Officer's Certificate of any event which
constitutes or, with the giving of notice or lapse of time, or both, would
become, an Event of Servicing Termination under Section 9.1.
Section 3.11 INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REPORTS.
The Servicer shall cause a firm of independent certified public accountants (who
may also render audit and other services to the Servicer and the Seller) to
deliver to the Trustee on or before March 15 of each year, commencing
______________, a report of examination addressed to the Board of Directors of
the Servicer and to the Trustee to the effect that such firm has examined the
automobile and light-duty truck receivable servicing functions of the Servicer
over the previous calendar year (or shorter period, in the case of the first
such report) and that such examination (i) included tests relating to automobile
and light-duty truck loans serviced for others and such other auditing
procedures as such firm considered necessary under the circumstances and (ii)
except as described in such report, disclosed no exceptions or errors in the
records relating to automobile and light-duty truck loans serviced for others
that in such firm's opinion, requires such firm to report. In the event such
firm requires the Trustee to agree to the procedures performed by such firm, the
Servicer shall direct the Trustee in writing to so agree; it being understood
and agreed that the Trustee will deliver such letter of agreement in conclusive
reliance upon the written direction of the Servicer, and the Trustee makes no
independent inquiry or investigation as to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures.
Section 3.12 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING RECEIVABLES. The Servicer shall provide the Trustee and the
Certificateholders with access to the Receivable Files (in the case of the
Certificateholders, where the Certificateholder shall be required by applicable
statutes or regulations to have access to such documentation). Such access
shall be afforded without charge, but only upon reasonable request and during
normal business hours at the office of the Servicer. Nothing in this Section
3.12 shall affect the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors, and the
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failure of the Servicer to provide access to information as a result of such
obligation shall not constitute a breach of this Section. Any
Certificateholder, by its acceptance of a Certificate, shall be deemed to
have agreed to keep any information obtained by it pursuant to this Section
confidential, except as may be required by applicable law.
Section 3.13 REPORTS TO THE COMMISSION. The Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
Section 3.14 REPORTS TO THE RATING AGENCIES. The Servicer shall
deliver to each Rating Agency, at such address as each Rating Agency may
request, a copy of all reports or notices furnished or delivered pursuant to
this Article and a copy of any amendments, supplements or modifications to this
Agreement and, if any subservicer is not an Affiliate of the Seller, any
subservicing agreement and any other information reasonably requested by such
Rating Agency to monitor this transaction.
ARTICLE IV
DISTRIBUTIONS; RESERVE ACCOUNT;
STATEMENTS TO CERTIFICATEHOLDERS
Section 4.1 ESTABLISHMENT OF ACCOUNTS. (a) (i) The Trustee, on
behalf of the Trust and for the benefit of the Certificateholders, shall
establish and maintain in the name of the Trustee one or more Eligible
Deposit Accounts (the "CERTIFICATE ACCOUNT"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Certificateholders. The Trustee, on behalf of the Trust
and for the benefit of the Class A Certificateholders, shall establish
and maintain in the name of the Trustee an Eligible Deposit Account (the
"CLASS A DISTRIBUTION ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Class A
Certificateholders. The Trustee, on behalf of the Trust and for the
benefit of the Class B Certificateholders, shall establish and maintain
in the name of the Trustee an Eligible Deposit Account (the "CLASS B
DISTRIBUTION ACCOUNT"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Class B
Certificateholders.
(ii) Funds on deposit in the Accounts shall be invested
by the Trustee in Eligible Investments selected by the Servicer (as
provided in a writing signed by it); PROVIDED, HOWEVER, it is understood
and agreed that the Trustee shall not be liable for any loss arising from
such investment in Eligible Investments or incurred as a result of the
liquidation of any investment prior to its stated maturity or the failure
of the Servicer to provide timely written investment direction. In no
event shall the Trustee be liable for the selection of Eligible
Investments. The Trustee shall have no obligation to invest or reinvest
any amounts held hereunder in the absence of written investment
direction. All such Eligible Investments shall be held by the Trustee
for the benefit of the beneficiaries of the applicable
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Account; PROVIDED that, on each Distribution Date, all interest and
other investment income (net of losses and investment expenses) on
funds on deposit therein shall be withdrawn from the Accounts at the
direction of the Servicer and shall be paid to the Seller. Funds on
deposit in the Accounts shall be invested in Eligible Investments that
will mature so that such funds will be available at the close of
business (New York time) on the Deposit Date preceding the following
Distribution Date. Funds deposited in an Account on a Deposit Date
which immediately precedes a Distribution Date upon the maturity of
any Eligible Investments are not required to be (but may be) invested
overnight.
(iii) The Accounts shall initially be established at
Bankers Trust Company. The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Accounts and in
all proceeds thereof (other than income thereon which shall be paid to
the Seller) and all such funds, investments and proceeds shall be part of
the Trust Property. The Accounts shall be under the sole dominion and
control of the Trustee. If, at any time, any of the Accounts ceases to
be an Eligible Deposit Account, the Trustee (or the Servicer on its
behalf) shall within 10 Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency shall consent)
establish a new Account as an Eligible Deposit Account and shall transfer
any cash and/or any investments that are in the existing Account which is
no longer an Eligible Deposit Account to such new Account.
(iv) With respect to the Account Property in respect of
any Account:
(A) any Account Property that is held in deposit
accounts shall be held solely in an Eligible Deposit Account; and
each such Eligible Deposit Account shall be subject to the
exclusive custody and control of the Trustee, and the Trustee
shall have sole signature authority with respect thereto;
(B) the Trustee shall maintain Control over each
Account in which any Account Property that constitutes a Security
Entitlement, an Uncertificated Security or a Federal Book-Entry
Security is held; and
(C) any Account Property that constitutes either
a Security Certificate or any other Account Property that
constitutes Physical Property and that is not a Security
Entitlement shall be transferred to the Trustee or its nominee or
custodian by physical delivery to the Trustee or its nominee or
custodian endorsed to, or registered in the name of, the Trustee
or its nominee or custodian or endorsed in blank.
(v) The Servicer shall have the power, revocable by the
Trustee, to instruct the Trustee to make withdrawals and payments from
the Accounts for the purpose of permitting the Servicer to carry out its
duties hereunder or permitting the Trustee to carry out its duties.
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(b) (i) The Servicer, for the benefit of the
Certificateholders, shall establish and maintain in the name of Bankers
Trust Company, as Collateral Agent, an Eligible Deposit Account (the
"RESERVE ACCOUNT"), which account shall bear a designation clearly
indicating that such account has been pledged to the Collateral Agent for
the benefit of the Certificateholders. The Reserve Account and any
amounts therein shall not be property of the Trust, but will be pledged
to and held by the Collateral Agent, as secured party for the benefit of
the Certificateholders.
(ii) Funds on deposit in the Reserve Account shall be
invested by the Collateral Agent in Eligible Investments selected by the
Servicer (as provided in writing signed by it); PROVIDED, HOWEVER, it is
understood and agreed that the Collateral Agent shall not be liable for
any loss arising from such investment in Eligible Investments or incurred
as a result of the liquidation of any investment prior to its stated
maturity or the failure of the Servicer to provide timely, written
investment direction. In no event shall the Collateral Agent be liable
for the selection of Eligible Investments. The Collateral Agent shall
have no obligation to invest or reinvest any amounts held hereunder in
the absence of written investment direction. All such Eligible
Investments shall be held by the Collateral Agent for the benefit of the
Certificateholders; PROVIDED that on each Distribution Date all interest
and other investment income (net of losses and investment expenses) on
funds on deposit therein shall be withdrawn from the Reserve Account at
the direction of the Servicer and shall be paid to the Seller. Funds on
deposit in the Reserve Account shall be invested in Eligible Investments
that will mature so that such funds will be available at the opening of
business on the next following Deposit Date; PROVIDED, HOWEVER, that to
the extent permitted by the Rating Agencies, funds on deposit in the
Reserve Account may be invested in Eligible Investments that mature later
than the next Deposit Date.
(iii) The Reserve Account shall be under the sole dominion
and control of the Collateral Agent. If, at any time, the Reserve
Account ceases to be an Eligible Deposit Account, the Servicer shall
within 10 Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency may consent) establish a new Reserve
Account as an Eligible Deposit Account and shall transfer any cash and/or
any investments that are in the existing Account which is no longer an
Eligible Deposit Account to such new Reserve Account.
(iv) With respect to the Account Property in respect of
the Reserve Account:
(A) any Account Property that is held in deposit
accounts shall be held solely in an Eligible Deposit Account; and
each such Eligible Deposit Account shall be subject to the
exclusive custody and control of the Collateral Agent and the
Collateral Agent shall have sole signature authority with respect
thereto;
(B) the Collateral Agent shall maintain Control
over each Account in which any Account Property that constitutes a
Security Entitlement, an Uncertificated Security or a Federal
Book-Entry Security is held; and
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(C) any Account Property that constitutes either
a Security Certificate or any other Account Property that
constitutes Physical Property and that is not a Security
Entitlement shall be transferred to the Collateral Agent or its
nominee or custodian by physical delivery to the Collateral Agent
or its nominee or custodian endorsed to, or registered in the name
of, the Collateral Agent or its nominee or custodian or endorsed
in blank.
(v) The Servicer shall have the power, revocable by the
Collateral Agent, to instruct the Collateral Agent to make withdrawals
and payments from the Reserve Account for the purpose of permitting the
Servicer to carry out its duties hereunder or permitting the Collateral
Agent to carry out its duties.
(vi) The Seller (and any successor to the Seller in
accordance with Section 7.3) and the Servicer agree to take or cause to
be taken such further actions, to execute, deliver and file or cause to
be executed, delivered and filed such further documents and instruments
(including, without limitation, any financing statements under the
Relevant UCC or this Agreement) as may be determined to be necessary, in
order to perfect the interests created by this Section 4.1 and otherwise
fully to effectuate the purposes, terms and conditions of this Section
4.1(b). The Seller (and any successor to the Seller in accordance with
Section 7.3) and the Servicer shall:
(A) promptly execute, deliver and file any
financing statements, amendments, continuation statements,
assignments, certificates and other documents with respect to such
interests and perform all such other acts as may be necessary in
order to perfect or to maintain the perfection of the Collateral
Agent's security interest; and
(B) make the necessary filings of financing
statements or amendments thereto within five days after the
occurrence of any of the following: (1) any change in their
respective names or any trade names; (2) any change in the
location of their respective chief executive offices or principal
places of business and (3) any merger or consolidation or other
change in their respective identities or corporate structures; and
shall promptly notify the Collateral Agent of any such filings.
Section 4.2 COLLECTIONS. (a) Subject to the provisions of
subsections (b) and (c) below, the Servicer shall remit to the Certificate
Account all payments by or on behalf of the Obligors on the Receivables,
including all Liquidation Proceeds and Recoveries received by the Servicer
during any Collection Period, as soon as practicable, but in no event after the
close of business (New York time) on the second Business Day after receipt
thereof. Subject to the provisions of subsection (c) hereof, on the Closing
Date, the Servicer shall deposit in the Certificate Account all payments by or
on behalf of the Obligors received by the Servicer representing monies due or
received under the Receivables after the close of business of the Servicer on
the Cutoff Date and on or prior to the second Business Day immediately preceding
the Closing Date.
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(b) Notwithstanding the provisions of Section 4.2(a), if (i)
the Servicer shall have the Required Rating or (ii) (a) the Servicer shall have
obtained a letter of credit or surety bond (or similar form of performance
guaranty) in favor of the Trustee, on behalf of the Trust for the benefit of the
Certificateholders, providing that the Trustee may demand payment (up to the
amount then available thereunder) in the event that the Servicer fails to make
any payment or deposit required hereunder (other than with respect to Advances)
and (b) the Trustee shall have received written notice from each of the Rating
Agencies that the then outstanding rating on the Class A Certificates and the
Class B Certificates would not be lowered or withdrawn as a result, the Servicer
may deposit the amounts referred to in subsection (a) above for any Collection
Period into the Certificate Account not later than the close of business on the
related Deposit Date, for so long as the Servicer shall have the Required Rating
or such letter of credit, surety bond or similar form of performance guaranty is
in full force and effect, as the case may be; PROVIDED, HOWEVER, that (i) if an
Event of Servicing Termination has occurred and is continuing, (ii) the Servicer
has been terminated as such pursuant to Section 9.1 or (iii) the Servicer ceases
to have the Required Rating (and the Servicer has not obtained a letter of
credit (or similar form of performance guaranty) satisfying the conditions
specified above), the Servicer shall deposit such amounts (including any amounts
then being held by the Servicer) into the Certificate Account as provided in
Section 4.2(a). Notwithstanding the foregoing, the provisions of the proviso to
the preceding sentence shall not be applicable to a successor servicer solely by
reason of the occurrence of an event specified in clauses (i), (ii) and (iii) of
such proviso with respect to the outgoing Servicer. Following the occurrence of
an event specified in clauses (i), (ii) or (iii) in the preceding proviso, on a
monthly basis, all Collections shall be segregated by book-entry or similar form
of identification on the Servicer's books and records and identified as the
property of the Trust. The Servicer shall promptly notify the Trustee in
writing if it shall obtain or lose the Required Rating or the benefit of such
letter of credit, surety bond, or similar form of performance guaranty.
(c) Notwithstanding the provisions of subsections (a) and (b)
hereof, the Servicer may retain, or will be entitled to be reimbursed, from
amounts otherwise payable into, or on deposit in, the Certificate Account with
respect to a Collection Period and the Receivables originated by it any amounts
previously deposited in the Certificate Account but later determined to have
resulted from mistaken deposits or postings or checks returned for insufficient
funds, in each case, with respect to which the Servicer has not been previously
reimbursed hereunder. The amount to be retained or reimbursed hereunder shall
not be included in Collections with respect to the related Distribution Date.
(d) In those cases where a subservicer is servicing a
Receivable, the Servicer shall cause the subservicer to remit to the Certificate
Account as soon as practicable, but in no event later than the close of business
(New York time) on the second Business Day after receipt thereof by the
subservicer (but subject to the provisions of Section 4.2 (b) and the
limitations contained in Section 4.2(c) of this Agreement) the amounts referred
to in Section 4.2(a) in respect of a Receivable being serviced by the
subservicer.
Section 4.3 ADVANCES. (a) On each Deposit Date, the Servicer may
make a payment with respect to each Receivable serviced by it (other than a
Defaulted Receivable) equal
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to the excess, if any, of (i) the product of the Principal Balance of such
Receivable as of the first day of the related Collection Period and one
twelfth of its Contract Rate (calculated on the basis of a 360-day year
comprised of twelve 30-day months) over (ii) Interest Collections actually
received by the Servicer as of the last day of such Collection Period with
respect to such Receivable (each such payment, an "ADVANCE"). With respect
to each Receivable, the Advance shall increase Outstanding Advances. If such
calculation results in a negative number, (i) Outstanding Advances shall be
reduced by such amount or (ii) if Outstanding Advances is equal to zero, such
amount shall be paid to the Servicer. The Servicer may elect not to make any
Advance of due and unpaid interest with respect to a Receivable to the extent
that the Servicer, in its sole discretion, determines that such Advance is
not recoverable from subsequent payments on such Receivable or from funds in
the Reserve Account. The Servicer shall not make any advance with respect to
principal of Receivables.
(b) The Servicer shall deposit in the Certificate Account the
aggregate Advances on Receivables serviced by the Servicer pursuant to Section
4.3(a). To the extent that the Servicer does not make an Advance pursuant to
Section 4.3(a) on the date required, the Servicer shall so notify the Collateral
Agent, and the Collateral Agent shall withdraw such amount (or, if determinable,
such portion of such amount as does not represent advances for delinquent
interest) from the Reserve Account and deposit such amount in the Certificate
Account. The Servicer and the Seller shall deposit or cause to be deposited in
the Certificate Account the aggregate Purchase Amount with respect to Purchased
Receivables. All such deposits shall be made in immediately available funds on
the Deposit Date. The Trustee shall deposit in the Certificate Account the
aggregate of any amounts received pursuant to the Yield Supplement Agreement on
the date of receipt thereof.
(c) On each Distribution Date, prior to making any of the
distributions set forth in Section 4.5, the Servicer shall be reimbursed for all
Outstanding Advances with respect to prior Distribution Dates to the extent of
the Interest Collections for such Distribution Date and, to the extent such
Interest Collections are insufficient, to the extent of the funds in the Reserve
Account. If it is acceptable to each Rating Agency without reduction in the
rating of the Certificates, the Outstanding Advances at the option of the
Servicer may be paid at or as soon as possible after the beginning of the
related Collection Period out of the first collections of interest received on
the Receivables for such Collection Period.
Section 4.4 ADDITIONAL DEPOSITS; NET DEPOSITS. The Servicer may
make the remittances to be made by it pursuant to Section 4.2 net of amounts to
be distributed to it pursuant to Section 4.5 (but subject to the priorities set
forth therein), for so long as (i) no Event of Servicing Termination has
occurred and is continuing and (ii) the Servicer has not been terminated as such
pursuant to Section 9.1 hereof; PROVIDED, HOWEVER, that the Servicer shall
account for all of such amounts in the related Servicer's Certificate as if such
amounts were deposited and distributed separately; and PROVIDED FURTHER that, if
an error is made by the Servicer in calculating the amount to be deposited or
retained by it and a shortfall in the amount deposited into the Certificate
Account results, the Servicer shall make a payment of the deficiency to the
Certificate Account, immediately upon becoming aware, or receiving notice from
the Trustee, of such shortfall.
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Section 4.5 DISTRIBUTIONS. (a) On or before each Determination
Date, the Servicer shall calculate all amounts to be deposited in the Class A
Distribution Account and the Class B Distribution Account, which calculations
shall be set forth in the Servicer's Certificate delivered to the Trustee on or
before such Determination Date.
(b) On each Distribution Date, after making the reimbursements
to the Servicer of Outstanding Advances to the extent provided in Section
4.3(c), the Trustee will make the following deposits and distributions from the
Certificate Account to the extent of the sum of Available Interest and any
Available Reserve Amount remaining after such reimbursements (and, in the case
of shortfalls occurring under clause (ii) below in the Class A Interest
Distribution, the Class B Percentage of Available Principal to the extent of
such shortfalls), in the following priority, all in accordance with the
direction contained in the Servicer's Certificate:
(i) to the Servicer, any unpaid Basic Servicing Fee
owing to the Servicer for the related Collection Period and all unpaid
Basic Servicing Fees from prior Collection Periods, but only from
Interest Collections;
(ii) to the Class A Distribution Account, the Class A
Interest Distribution for such Distribution Date; and
(iii) to the Class B Distribution Account, the Class B
Interest Distribution for such Distribution Date.
On each Distribution Date, the Trustee will make the following deposits and
distributions, to the extent of the portion of Available Principal, Available
Interest and Available Reserve Amount remaining after the application of clauses
(i), (ii) and (iii) above, in the following priority:
(iv) to the Class A Distribution Account, the Class A
Principal Distribution for such Distribution Date;
(v) to the Class B Distribution Account, the Class B
Principal Distribution for such Distribution Date;
(vi) to the Collateral Agent for deposit in the Reserve
Account, any amounts remaining, until the amount on deposit in the
Reserve Account equals the Specified Reserve Account Balance; and
(vii) to the Collateral Agent for distribution to the
Seller, any amounts remaining.
(c) On each Distribution Date, all amounts on deposit in the
Class A Distribution Account will be distributed to the Class A
Certificateholders by the Trustee, all amounts on deposit in the Class B
Distribution Account will be distributed to the Class B Certificateholders by
the Trustee and all amounts on deposit in the Reserve Account in excess of the
Specified Reserve Account Balance will be distributed to the Seller by the
Collateral Agent; provided however that
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upon distribution with respect to the Class A Certificates of an amount,
together with all prior distributions with respect to the Class A
Certificates, equal to the Original Class A Certificate Balance plus interest
thereon, the Class A Certificateholders shall have no right to any additional
distribution and the Trustee shall make no distributions with respect to the
Class A Certificates, and upon distribution with respect to the Class B
Certificates of an amount, together with all prior distributions with respect
to the Class B Certificates, equal to the Original Class B Certificate
Balance plus interest thereon, the Class B Certificateholders shall have no
right to any additional distributions and the Trustee shall make no
distributions with respect to the Class B Certificates. Except as provided
in Section 11.1, payments under this subsection (c) shall be made to the
Certificateholders by check mailed by the Trustee to each Certificateholder's
respective address of record (or, in the case of Certificates registered in
the name of a Clearing Agency or its nominee, by wire transfer of immediately
available funds). To the extent that the Trustee is required to wire funds
to the Certificateholders from the Class A Distribution Account or the Class
B Distribution Account, as applicable, it shall request the bank maintaining
the Class A Distribution Account or the Class B Distribution Account, as
applicable, to make a wire transfer of the amount to be distributed and the
bank maintaining the Class A Distribution Account or the Class B Distribution
Account, as applicable, shall promptly deliver to the Trustee a confirmation
of such wire transfer. To the extent that the Trustee is required to make
payments to Certificateholders by check hereunder, it shall request the bank
maintaining the Class A Distribution Account or the Class B Distribution
Account, as applicable, to provide it with a supply of checks to make such
payments. The bank shall, if a request is made by the Trustee for a wire
transfer by 9:00 a.m. (New York time) on any Distribution Date, wire such
funds to the Trustee in accordance with such instructions by 10:00 a.m. (New
York time) on such Distribution Date, and it will otherwise act in compliance
with the provisions of this Section and the other provisions of this
Agreement applicable to it as the bank maintaining the Class A Distribution
Account or the Class B Distribution Account, as applicable. The Servicer
shall take all necessary action (including requiring an agreement to such
effect) to ensure that any bank maintaining the Class A Distribution Account
or the Class B Distribution Account, as applicable, agrees to comply, and
complies, with the provisions of this Section and the other provisions of
this Agreement applicable to it as the bank maintaining the Class A
Distribution Account or the Class B Distribution Account, as applicable.
Section 4.6 RESERVE ACCOUNT. On the Closing Date, the Seller
shall deposit the Reserve Account Initial Deposit into the Reserve Account. The
Seller hereby grants to the Collateral Agent for the benefit of the
Certificateholders a security interest in and to the Reserve Account and any and
all property credited thereto from time to time, including, but not limited to,
Eligible Investments, to secure payment of the Certificates according to their
terms. Amounts held from time to time in the Reserve Account will continue to
be held by the Collateral Agent for the benefit of Class A Certificateholders
and the Class B Certificateholders, but the Reserve Account shall not be an
asset of the Trust and upon any distribution to the Seller of amounts from the
Reserve Account, the Certificateholders will not have any rights in, or claims
to, such amounts. By acceptance of their Certificates, Certificateholders shall
be deemed to have appointed Bankers Trust Company as Collateral Agent. Bankers
Trust Company hereby accepts such appointment as Collateral Agent.
Section 4.7 STATEMENTS TO CERTIFICATEHOLDERS. (a) On each
Distribution Date, the Servicer shall provide to the Trustee (with a copy to the
Rating Agencies) for the Trustee to forward
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on such date to each Certificateholder of record a statement substantially in
the form of EXHIBIT C setting forth at least the following information as to
the Certificates for the related Collection Period, to the extent applicable:
(i) the amount of the distribution allocable to
principal on the Class A Certificates and the Class B Certificates;
(ii) the amount of the distribution allocable to interest
on the Class A Certificates and the Class B Certificates;
(iii) the Yield Supplement Amount;
(iv) the amount of the Basic Servicing Fee paid to the
Servicer with respect to the related Collection Period;
(v) the Class A Certificate Balance, the Class A Pool
Factor, the Class B Certificate Balance and the Class B Pool Factor as of
such Distribution Date, after giving effect to payments allocated to
principal reported pursuant to clause (i) above;
(vi) the Pool Balance as of the close of business of the
Servicer on the last day of the related Collection Period;
(vii) the amount of the aggregate Realized Losses, if any,
for such Collection Period;
(viii) the amount of the aggregate Defaulted Receivables,
if any, for such Collection Period;
(ix) the amount otherwise distributable to the Class B
Certificateholders that is distributed to the Class A Certificateholders
for the related Collection Period;
(x) the aggregate Purchase Amount of Receivables
repurchased by the Seller or purchased by the Servicer during the related
Collection Period;
(xi) the amount of Advances made in respect of such
Collection Period and the amount of unreimbursed Advances on such
Distribution Date;
(xii) the balance of the Reserve Account on such
Distribution Date, after giving effect to changes therein on such
Distribution Date;
(xiii) (x) the excess, if any, of the Class A Certificate
Balance over the Pool Balance and (y) the excess, if any, of the Class B
Certificate Balance over the amount by which the Pool Balance exceeds the
Class A Certificate Balance; and
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(xiv) the aggregate outstanding balances of the
Receivables which were delinquent 30-59 days, 60-89 days, 90 or more
days, respectively, as of the close of business on the last day of the
related Collection Period.
Each amount set forth pursuant to clauses (i) through (iv) above shall be
expressed in the aggregate and as a dollar amount per $1,000 of original
denomination of the Certificates.
(b) Within a reasonable period of time after the end of each
calendar year, but not later than the latest date permitted by law, the Servicer
shall furnish a report to the Trust and the Trustee shall furnish, or cause to
be furnished, to each Person who at any time during such calendar year shall
have been a Certificateholder, a statement based upon such report as to the sum
of the amounts determined in clauses (i) through (iv) above for such calendar
year, or, in the event such Person shall have been a Certificateholder during a
portion of such calendar year, for the applicable portion of such year, and such
other information as is available to the Servicer as the Servicer deems
necessary or desirable to enable the Certificateholders to prepare their federal
income tax returns.
ARTICLE V
YIELD SUPPLEMENT ACCOUNT
Section 5.1 YIELD SUPPLEMENT AGREEMENT. Simultaneously with
the execution of this Agreement, the Seller conveyed the Yield Supplement
Agreement to the Trust as part of the Trust Property and has deposited the
Yield Supplement Initial Deposit into the Yield Supplement Account. The
Yield Supplement Agreement, with respect to each Receivable (other than
Purchased Receivables and Defaulted Receivables), provides for the payment by
the Seller on or prior to each Deposit Date of an amount (if positive)
calculated by the Servicer equal to one-twelfth of the difference between (i)
the sum of interest on the Class A Percentage of such Receivable's Principal
Balance as of the first day of the related Collection Period at a rate equal
to the sum of the Class A Pass-Through Rate and the Basic Servicing Fee Rate
and interest on the Class B Percentage of such Receivable's Principal Balance
as of the first day of the related Collection Period at a rate equal to the
sum of the Class B Pass-Through Rate and the Basic Servicing Fee Rate and
(ii) interest on such Receivable's Principal Balance as of the first day of
the related Collection Period at a rate equal to the Contract Rate (in the
aggregate for all Receivables with respect to any Distribution Date, the
"YIELD SUPPLEMENT AMOUNT").
Section 5.2 YIELD SUPPLEMENT ACCOUNT. (a) The Seller shall
establish and maintain in the name of the Collateral Agent an Eligible Deposit
Account to secure the Seller's obligations under the Yield Supplement Agreement
(the "YIELD SUPPLEMENT ACCOUNT"). The Yield Supplement Account and any amounts
therein shall not be property of the Trust, but shall be pledged to the
Collateral Agent for the benefit of Certificateholders. The Yield Supplement
Account shall initially be maintained at Bankers Trust Company.
(b) In order to provide for the prompt payment by the Seller of
the Yield Supplement Amount, to assure availability of the amounts maintained in
the Yield Supplement
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Account and as security for the performance by the Seller of its obligations
under the Yield Supplement Agreement the Seller, on behalf of itself and its
successors and assigns, hereby pledges to the Collateral Agent and its
successors and assigns for the benefit of the Certificateholders, all of its
right, title and interest in and to the Yield Supplement Account, and all
proceeds of the foregoing, including, without limitation, all other amounts
and investments held from time to time in the Yield Supplement Account
(whether in the form of deposit accounts, Physical Property, Book-Entry
Securities, Uncertificated Securities or otherwise) including, without
limitation, the Yield Supplement Initial Deposit, subject, however, to the
limitations set forth below, and solely for the purpose of securing payment
of the Yield Supplement Amount (all of the foregoing, subject to the
limitations set forth in this Section, the "YIELD SUPPLEMENT ACCOUNT
PROPERTY"), to have and to hold all the aforesaid property, rights and
privileges unto the Collateral Agent, its successors and assigns, in trust
for the uses and purposes, and subject to the terms and provisions, set forth
in this Section. The Collateral Agent hereby acknowledges such transfer and
accepts in trust hereunder and shall hold and distribute the Yield Supplement
Account Property in accordance with the terms and provisions of this Section.
(c) Funds on deposit in the Yield Supplement Account shall be
invested by the Collateral Agent in Eligible Investments selected by the Seller
and designated in writing by the Seller to the Collateral Agent; PROVIDED,
HOWEVER, it is understood and agreed that the Collateral Agent shall not be
liable for any loss arising from such investment in Eligible Investments or
incurred as a result of the liquidation of any investment prior to its stated
maturity or the failure of the Servicer to provide timely, written direction.
In no event shall the Collateral Agent be liable for the selection of Eligible
Investments. The Collateral Agent shall have no obligation to invest or
reinvest any amounts held hereunder in the absence of written investment
direction. Funds on deposit in the Yield Supplement Account shall be invested
in Eligible Investments that will mature so that all such funds will be
available at the opening of business on each Deposit Date; PROVIDED, HOWEVER,
that to the extent permitted by the Rating Agencies, funds on deposit in the
Yield Supplement Account may be invested in Eligible Investments that mature
later than the next Deposit Date. Funds deposited in the Yield Supplement
Account on a Deposit Date upon the maturity of any Eligible Investments are not
required to be (but may be) invested overnight. The Seller will treat the
funds, Eligible Investments and other assets in the Yield Supplement Account as
its own for Federal, state and local income tax and franchise tax purposes and
will report on its tax returns all income, gain and loss from the Yield
Supplement Account.
(d) No later than 11:00 a.m. (New York time) on each Deposit
Date, the Seller shall deposit to the Certificate Account an amount equal to the
Yield Supplement Amount for the related Collection Period; PROVIDED that if, on
any Distribution Date, the Seller fails to pay the Yield Supplement Amount,
then, in such event, the Trustee shall direct the Collateral Agent to withdraw
from the Yield Supplement Account an amount equal to such deficiency and deposit
such amount into the Certificate Account.
(e) The Yield Supplement Account shall be under the sole
custody and control of the Collateral Agent. If, at any time, the Yield
Supplement Account ceases to be an Eligible Deposit Account, the Collateral
Agent shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new Yield
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Supplement Account as an Eligible Deposit Account and shall transfer any cash
and/or any investments that are in the existing Yield Supplement Account which
is no longer an Eligible Deposit Account to such new Yield Supplement Account.
(f) Amounts on deposit in the Yield Supplement Account will be
released to the Seller on each Distribution Date to the extent that the amount
on deposit in the Yield Supplement Account would exceed the Specified Yield
Supplement Balance. Upon a distribution to the Seller of amounts from the Yield
Supplement Account, the Certificateholders will not have any rights in, or
claims to, such amounts. Amounts properly distributed to the Seller from the
Yield Supplement Account or otherwise shall not be available under any
circumstances to the Trust, the Trustee, the Collateral Agent or the
Certificateholders and the Seller shall in no event thereafter be required to
refund any such distributed amounts.
(g) With respect to the Yield Supplement Account Property:
(i) any Yield Supplement Account Property that is held
in deposit accounts shall be held solely in the name of the Collateral
Agent at one or more depository institutions having the Required Rating;
each such deposit account shall be subject to the exclusive custody and
control of the Collateral Agent, and the Collateral Agent shall have sole
signature authority with respect thereto;
(ii) the Collateral Agent shall maintain Control over
each deposit account in which any Account Property that constitutes a
Security Entitlement, an Uncertificated Security or a Federal Book-Entry
Security is held; and
(iii) any Yield Supplement Account Property that
constitutes either a Security Certificate or any other Yield Supplement
Account Property that constitutes Physical Property and that is not a
Security Entitlement shall be transferred to the Collateral Agent or its
nominee or custodian by physical delivery to the Collateral Agent or its
nominee or custodian endorsed to, or registered in the name of, the
Collateral Agent or its nominee or custodian endorsed in blank.
Effective upon delivery of any Yield Supplement Account Property in the form of
Physical Property, Book-Entry Securities or Uncertificated Securities, the
Collateral Agent shall be deemed to have represented that it has purchased such
Yield Supplement Account Property for value, in good faith and without notice of
any adverse claim thereto.
(h) The Seller (and any successor to the Seller in accordance
with Section 7.3) and the Servicer agree to take or cause to be taken such
further actions, to execute, deliver and file or cause to be executed, delivered
and filed such further documents and instruments (including, without limitation,
any financing statements under the Relevant UCC or this Agreement) as may be
determined to be necessary, in order to perfect the interests created by this
Section 5.2 and otherwise fully to effectuate the purposes, terms and conditions
of this Section 5.2. The Seller (and any successor to the Seller in accordance
with Section 7.3) and the Servicer shall:
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(i) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or to
maintain the perfection of the Collateral Agent's security interest; and
(ii) make the necessary filings of financing statements
or amendments thereto within five days after the occurrence of any of the
following: (A) any change in their respective names or any trade names,
(B) any change in the location of their respective chief executive
offices or principal places of business and (C) any merger or
consolidation or other change in their respective identities or corporate
structures; and shall promptly notify the Collateral Agent of any such
filings.
(i) Investment earnings attributable to the Yield Supplement
Account Property and proceeds therefrom shall be held by the Collateral Agent
for the benefit of the Seller. Investment earnings attributable to the Yield
Supplement Account Property shall not be available to pay the Yield Supplement
Amount and shall not otherwise be subject to any claims or rights of the
Certificateholders or the Servicer. The Collateral Agent shall cause all
investment earnings attributable to the Yield Supplement Account to be
distributed on each Distribution Date to the Seller.
ARTICLE VI
THE CERTIFICATES
Section 6.1 THE CERTIFICATES. The Trustee shall, upon written
order or request signed in the name of the Seller by one of its officers
authorized to do so and delivered to an Authorized Officer of the Trustee,
execute on behalf of the Trust, authenticate and deliver the Certificates to or
upon the order of the Seller in the aggregate principal amount and denominations
as set forth in such written order or request. The Certificates shall be
issuable in denominations of $1,000 and integral multiples thereof; PROVIDED,
HOWEVER, that one Class A Certificate and one Class B Certificate may be issued
in a denomination that represents the residual amount of the Original Class A
Certificate Balance and the Original Class B Certificate Balance, respectively.
Upon initial issuance, the Class A Certificates and the Class B Certificates
shall be in the form of EXHIBIT A and EXHIBIT B, respectively, which are
incorporated by reference herein, and shall be issued as provided in Section
6.8, in an aggregate amount equal to the Original Class A Certificate Balance
and the Original Class B Certificate Balance, respectively. The Certificates
shall be executed by the Trustee on behalf of the Trust by manual signature of
an Authorized Officer of the Trustee. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
valid and binding obligations of the Trust, notwithstanding that such
individuals shall have ceased to be so authorized prior to the authentication
and delivery of such Certificates or did not hold such offices at the date of
such Certificates.
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Section 6.2 AUTHENTICATION OF CERTIFICATES. No Certificate
shall entitle the Certificateholders thereof to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication, substantially in the form set forth
in the form of Certificates attached hereto as EXHIBIT A and EXHIBIT B, executed
by the Trustee by manual signature. Such authentication shall constitute
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
Section 6.3 REGISTRATION OF TRANSFER AND EXCHANGE OF
CERTIFICATES. The Trustee shall maintain, or cause to be maintained, at the
office or agency to be maintained by it in accordance with Section 6.7, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Class A Certificate or Class B Certificate at
such office or agency, the Trustee shall execute, authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Class A
Certificates or Class B Certificates, as the case may be, in authorized
denominations of a like aggregate amount. At the option of a Certificateholder,
Class A Certificates or Class B Certificates may be exchanged for other Class A
Certificates or Class B Certificates, as the case may be, of authorized
denominations of a like aggregate amount at the office or agency maintained by
the Trustee in accordance with Section 6.7. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer duly executed by the Certificateholder and in a
form satisfactory to the Trustee. No service charge shall be made for any
registration of transfer or exchange of Certificates, but the Trustee may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and disposed of in a commercially reasonable manner approved by the
Trustee.
The Class B Certificates and any beneficial interest in such Class
B Certificates may not be acquired by (a) an employee benefit plan (as defined
in Section 3(3) of ERISA) that is subject to the provisions of Title 1 of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity (each, a "BENEFIT PLAN"). By accepting and holding a Class B Certificate
or an interest therein, the Certificateholder thereof or Class B Certificate
Owner thereof shall be deemed to have represented and warranted that it is not a
Benefit Plan.
Section 6.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Class A Certificate or Class B Certificate shall be
surrendered to the Trustee, or if the Trustee shall receive evidence to its
satisfaction of the destruction, loss, or theft of any Class A Certificate or
Class B Certificate and (b) there shall be delivered to the Trustee such
security or indemnity as it may require to save it harmless, then in the absence
of notice that such Class A Certificate or Class B Certificate shall have been
acquired by a bona fide purchaser, the Trustee shall execute on behalf of the
Trust, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost, or stolen Class A Certificate or Class B
Certificate, a new Class A Certificate or Class B Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under this
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Section 6.4, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection herewith.
Any replacement Certificate issued pursuant to this Section 6.4 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen, or destroyed Certificate shall be found at any time.
Section 6.5 PERSONS DEEMED OWNERS. Prior to due presentation of
a Certificate for registration of transfer, the Trustee may treat the Person in
whose name any Certificate shall be registered as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 4.5 and for all
other purposes, and the Trustee shall not be bound by any notice to the
contrary.
Section 6.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee shall furnish or cause to be furnished to the Servicer,
within 15 days after receipt by the Trustee of a request therefor from the
Servicer in writing, a list of the names and addresses of the Certificateholders
as of the most recent Record Date. If Definitive Certificates have been issued,
the Trustee, upon written request of the holders of Class A Certificates or
Class B Certificates evidencing not less than 25% of the aggregate outstanding
principal balance of either the Class A Certificates or the Class B
Certificates, as the case may be, will, within five Business Days after the
receipt of such request, afford such Class A Certificateholders or Class B
Certificateholders access during normal business hours to the most current list
of Certificateholders for purposes of communicating with other
Certificateholders with respect to their rights under the Agreement. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed to hold neither the Seller, the Servicer nor the Trustee accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
Section 6.7 MAINTENANCE OF OFFICE OR AGENCY. The Trustee shall
maintain, or cause to be maintained, at its expense, in New York, New York, an
office or agency where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustee in
respect of the Certificates and this Agreement may be served. The Trustee
initially designates the Corporate Trust Office as its office for such purposes.
The Trustee shall give prompt written notice to the Servicer and to
Certificateholders of any change in the location of any such office or agency.
Section 6.8 BOOK-ENTRY CERTIFICATES. Upon original issuance,
the Class A Certificates and the Class B Certificates, other than the Class A
Certificate and the Class B Certificate representing the residual amount of the
Original Class A Certificate Balance and the Original Class B Certificate
Balance, respectively, which shall be issued upon the written order of the
Seller, shall be issued in the form of one or more typewritten Certificates
representing the Book-Entry Certificates, to be delivered to the initial
Clearing Agency, by, or on behalf of, the Seller. Such Certificates shall
initially be registered on the Certificate Register in the name of CEDE & Co.,
the nominee of the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Class A Certificates or the Class B Certificates, as the case may be,
except as provided in Section 6.10. Unless and until definitive, fully
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registered Certificates (collectively, "DEFINITIVE CERTIFICATES") have been
issued to Class A Certificate Owners or Class B Certificate Owners, as the case
may be, pursuant to Section 6.10:
(i) the provisions of this Section 6.8 shall be in full
force and effect;
(ii) the Seller, the Servicer, the Trustee and their
officers, directors, employees and agents may deal with the Clearing
Agency for all purposes (including the making of distributions on the
Certificates and the taking of actions by the Certificateholders) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section
6.8 conflict with any other provisions of this Agreement, the provisions
of this Section 6.8 shall control;
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law, the rules, regulations and procedures of the Clearing
Agency and agreements between such Certificate Owners and the Clearing
Agency and all references in this Agreement to actions by
Certificateholders shall refer to actions taken by the Clearing Agency
upon instructions from the Clearing Agency Participants, and all
references in this Agreement to distributions, notices, reports and
statements to Certificateholders shall refer to distributions, notices,
reports and statements to the Clearing Agency or its nominee, as
registered holder of the Certificates, as the case may be, for
distribution to Certificate Owners in accordance with the rules,
regulations and procedures of the Clearing Agency; and
(v) pursuant to the Depository Agreement, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the Certificates to the Clearing Agency Participants, for
distribution by such Clearing Agency Participants to the Certificate
Owners or their nominees.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, holders of
Certificates evidencing specified percentages of the aggregate outstanding
principal balance of such Certificates, such direction or consent may be given
by Certificate Owners having interests in the requisite percentage, acting
through the Clearing Agency.
Section 6.9 NOTICES TO CLEARING AGENCY. Whenever notice or
other communication to the Certificateholders is required under this Agreement
unless and until Definitive Certificates shall have been issued to Certificate
Owners pursuant to Section 6.10, the Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency.
Section 6.10 DEFINITIVE CERTIFICATES. If (i) (A) the Seller
advises the Trustee in writing that the Clearing Agency is no longer willing or
able to discharge properly its responsibilities under the Depository Agreement
and (B) the Trustee or the Seller is unable to locate a qualified successor,
(ii) the Seller, at its option, advises the Trustee in writing that it elects to
terminate
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the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Servicing Termination, with respect to the Class A
Certificates, Class A Certificate Owners representing in the aggregate not
less than a majority of the aggregate outstanding principal balance of the
Class A Certificates or, with respect to the Class B Certificates, Class B
Certificate Owners representing in the aggregate not less than a majority of
the aggregate outstanding principal balance of the Class B Certificates,
advise the Trustee and the Clearing Agency through the Clearing Agency
Participants in writing, and the Clearing Agency shall so notify the Trustee,
that the continuation of a book-entry system through the Clearing Agency is
no longer in the Class A Certificate Owners' or the Class B Certificate
Owners', as the case may be, best interests, the Trustee shall notify the
Clearing Agency, which shall be responsible to notify the Class A Certificate
Owners or the Class B Certificate Owners or both, as the case may be, of the
occurrence of any such event and of the availability of Definitive
Certificates to Class A Certificate Owners or Class B Certificate Owners or
both, as the case may be, requesting the same. Upon surrender to the Trustee
by the Clearing Agency of the Class A Certificates or the Class B
Certificates or both, as the case may be, registered in the name of the
nominee of the Clearing Agency, accompanied by re-registration instructions
from the Clearing Agency for registration, the Trustee shall execute, on
behalf of the Trust, authenticate and deliver Definitive Certificates in
accordance with such instructions. The Seller shall arrange for, and will
bear all costs of, the printing and issuance of such Definitive Certificates.
Neither the Seller, the Servicer nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee shall recognize the holders of the
Definitive Certificates as Certificateholders hereunder.
ARTICLE VII
THE SELLER
Section 7.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The
Seller makes the following representations and warranties, on which the Trustee
relies in accepting the Receivables and the other Trust Property in trust and
executing and authenticating the Certificates. These representations are made
as of the Closing Date, but shall survive the sale, transfer and assignment of
the Receivables and the other Trust Property to the Trust.
(i) ORGANIZATION AND GOOD STANDING. The Seller has been
duly incorporated and is validly existing as a national banking
association, with the power and authority to own its properties and to
conduct its business as such properties are presently owned and such
business is presently conducted, and had at all relevant times, and has,
full power, authority and legal right to acquire, own and sell its
Receivables.
(ii) DUE QUALIFICATION. The Seller is duly qualified to
do business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals, in all jurisdictions where the
failure to do so would materially and adversely affect the ownership or
servicing of the Receivables or render any of the Receivables
unenforceable.
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(iii) POWER AND AUTHORITY. The Seller has the power,
authority and legal right to execute and deliver this Agreement and to
carry out its terms and to sell and assign the property to be sold and
assigned to and deposited with the Trustee as Trust Property; and the
execution, delivery, and performance of this Agreement and all of the
documents required pursuant hereto have been duly authorized by the
Seller by all necessary action.
(iv) NO CONSENT REQUIRED. The Seller is not required to
obtain the consent of any other Person, or any consent, license, approval
or authorization or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery or
performance of this Agreement, other than as may be required under the
blue sky or securities laws of any State or the Securities Act of 1933,
as amended, under state laws governing the perfection of the interests
created under this Agreement and under ERISA.
(v) VALID SALE; BINDING OBLIGATION. This Agreement
effects a valid sale, transfer and assignment of the Receivables and the
other Trust Property conveyed by the Seller to the Trust hereunder,
enforceable against creditors of and purchasers from the Seller; and this
Agreement constitutes a legal, valid, and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms,
subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity).
(vi) NO VIOLATION. The execution, delivery and
performance by the Seller of this Agreement, the consummation of the
transactions contemplated hereby and the fulfillment of the terms hereof
will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the certificate of incorporation or bylaws of the Seller,
or conflict with, or breach any of the terms or provisions of, or
constitute (with or without notice or lapse of time) a default under, any
indenture, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which the Seller is bound or any of its
properties are subject, or result in the creation or imposition of any
lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than this Agreement), or violate any law, order, rule, or regulation,
applicable to the Seller or its properties, of any federal or state
regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or any of its
properties.
(vii) NO PROCEEDINGS. There are no proceedings or
investigations pending, or, to the knowledge of the Seller, threatened,
before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality having jurisdiction over the
Seller or its properties: (a) asserting the invalidity of this Agreement
or the Certificates, (b) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated
by this Agreement, (c) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of its
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obligations under, or the validity or enforceability of, this Agreement
or the Certificates, or (d) that may adversely affect the federal or
state income, excise, franchise or similar tax attributes of the
Certificates.
Section 7.2 LIABILITY OF THE SELLER; INDEMNITIES. (a) The
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under this Agreement and
shall have no other obligations or liabilities hereunder.
(b) The Seller shall indemnify, defend and hold harmless the
Trustee, its directors, officers, employees and agents, the Trust and the
Certificateholders from and against any taxes that may at any time be asserted
against the Trustee, its directors, officers, employees and agents, the Trust or
a Certificateholder with respect to, and as of the date of, the sale, transfer
and assignment of the Trust Property to the Trust or the issuance and original
sale of the Certificates, including any sales, gross receipts, general
corporation, tangible or intangible personal property, privilege, or license
taxes (but not, except as provided below, including any taxes asserted with
respect to ownership of the Trust Property or federal or other income taxes,
including franchise taxes measured by net income, arising out of the
transactions contemplated by this Agreement or transfer taxes arising in
connection with the transfer of the Certificates), and reasonable costs and
expenses in defending against the same.
(c) The Seller shall indemnify, defend and hold harmless the
Trustee, its directors, officers, employees and agents, the Trust and the
Certificateholders from and against any loss, liability or expense incurred by
reason of (i) the Seller's willful misfeasance, bad faith, or negligence in the
performance of its duties hereunder, or by reason of reckless disregard of the
obligations and duties hereunder; or (ii) any action taken, or failed to be
taken, by the Seller in respect of any portion of the Trust Property.
(d) The Seller shall indemnify, defend and hold harmless the
Trustee, its directors, officers, employees and agents, the Trust and the
Certificateholders from and against any loss, liability or expense incurred by
reason of the violation by the Seller of federal or state securities laws in
connection with the registration or the sale of the Certificates.
(e) The Seller shall indemnify, defend and hold harmless the
Trustee, its directors, officers, employees and agents, the Trust and the
Certificateholders from and against any loss, liability or expense imposed upon,
or incurred by, the Trustee, the Trust or the Certificateholders as the result
of the failure of any Receivable conveyed by it to the Trust hereunder, or the
sale of the related Financed Vehicle, to comply with all requirements of
applicable law.
(f) Indemnification under this Section 7.2 shall include
reasonable fees and expenses of counsel and expenses of litigation and shall
survive termination of the Trust or the earlier resignation or removal of the
Trustee. If the Seller shall have made any indemnity payments to the Trustee
pursuant to this Section 7.2 and the Trustee thereafter shall collect any of
such amounts from Persons other than the Seller, the Trustee shall immediately
upon receipt thereof repay such amounts to the Seller, without interest.
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Section 7.3 MERGER OR CONSOLIDATION OF THE SELLER. Any
corporation or other entity (i) into which the Seller may be merged or
consolidated, (ii) that may result from any merger, conversion, or consolidation
to which the Seller is a party, or (iii) that may succeed by purchase and
assumption to all or substantially all of the business of the Seller, where the
Seller is not the surviving entity, which corporation or other entity shall
execute an agreement of assumption to perform every obligation of the Seller
under this Agreement, shall be the successor to the Seller hereunder without the
execution or filing of any document or any further act by any of the parties to
this Agreement. The Seller shall promptly inform the Trustee and the Rating
Agency of any such merger, conversion, consolidation or purchase and assumption,
where the Seller is not the surviving entity.
Section 7.4 LIMITATION ON LIABILITY OF THE SELLER AND OTHERS.
The Seller, and any of its directors, officers, employees or agents may rely in
good faith on any document of any kind, believed by it to be genuine and
properly executed and submitted by any Person respecting any matters arising
hereunder. The Seller shall be under no obligation under this Agreement to
appear in, prosecute or defend any legal action that shall be unrelated to its
obligations under this Agreement and that in its opinion may involve it in any
expense or liability.
Section 7.5 SELLER MAY OWN CERTIFICATES. The Seller, and any
Affiliate of the Seller, may in its individual or any other capacity become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Seller or an Affiliate thereof, except as otherwise provided in the
definition of "Certificateholder," "Class A Certificateholder" and "Class B
Certificateholder" in Section 1.1. Certificates so owned by or pledged to the
Seller or such controlling, controlled or commonly controlled Person shall have
an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority, or distinction as among all of the Certificates.
ARTICLE VIII
THE SERVICER
Section 8.1 REPRESENTATIONS AND WARRANTIES OF THE SERVICER. The
Servicer makes the following representations and warranties on which the Trustee
relies in accepting the Receivables and the other Trust Property in trust and in
authenticating the Certificates. These representations are made as of the
Closing Date, but shall survive the sale, transfer and assignment of the
Receivables and the other Trust Property to the Trust.
(i) ORGANIZATION AND GOOD STANDING. The Servicer has
been duly incorporated and is validly existing as a national banking
association, with the power and authority to own its properties and to
conduct its business as such properties are presently owned and such
business is presently conducted, and had at all relevant times, and shall
have, the power, authority and legal right to service the Receivables.
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(ii) DUE QUALIFICATION. The Servicer is duly qualified
to do business as a foreign corporation in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions where
the failure to do so would materially and adversely affect the ability of
the Servicer to service, or the enforceability of, the Receivables.
(iii) POWER AND AUTHORITY. The Servicer has the power,
authority and legal right to execute and deliver this Agreement and to
carry out its terms; and the execution, delivery and performance of this
Agreement has been duly authorized by the Servicer by all necessary
corporate action.
(iv) NO CONSENT REQUIRED. The Servicer is not required
to obtain the consent of any other Person, or any consent, license,
approval or authorization or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery or performance of this Agreement other than as may be
required under ERISA.
(v) BINDING OBLIGATION. This Agreement constitutes a
legal, valid, and binding obligation of the Servicer, enforceable against
the Servicer in accordance with its terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity).
(vi) NO VIOLATION. The execution, delivery and
performance of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof will not
conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time) a default
under, the certificate of incorporation or bylaws of the Servicer, or
conflict with or breach any of the terms or provisions of, or constitute
(with or without notice or lapse of time) a default under, any indenture,
agreement, mortgage, deed of trust or other instrument to which the
Servicer is a party or by which the Servicer is bound or to which any of
its properties are subject, or result in the creation or imposition of
any lien upon any of its properties pursuant to the terms of any such
indenture, agreement, mortgage, deed of trust or other instrument (other
than this Agreement), or violate any law, order, rule, or regulation
applicable to the Servicer or its properties of any federal or state
regulatory body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over the Servicer or any of its
properties.
(vii) NO PROCEEDINGS. There are no proceedings or
investigations pending, or, to the Servicer's knowledge, threatened,
before any court, regulatory body, administrative agency, or tribunal or
other governmental instrumentality having jurisdiction over the Servicer
or its properties: (a) asserting the invalidity of this Agreement or the
Certificates, (b) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this
Agreement, (c) seeking any determination or ruling that might materially
and adversely affect the performance by the Servicer of its obligations
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under, or the validity or enforceability of, this Agreement or the
Certificates, or (d) that may adversely affect the federal or state
income, excise, franchise or similar tax attributes of the Certificates.
Section 8.2 LIABILITY OF THE SERVICER; INDEMNITIES. (a) The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer under this Agreement and
shall have no other obligations or liabilities hereunder.
(b) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Collateral Agent, their directors, officers, employees and agents,
the Trust, and the Certificateholders from and against any and all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel and expenses of litigation, arising out of or resulting from
the use, ownership, or operation by the Servicer or any Affiliate thereof of any
Financed Vehicle or in respect of any action taken, or failed to be taken, by
the Servicer with respect to any Receivable or other portion of the Trust
Property.
(c) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Collateral Agent, their directors, officers, employees and agents,
the Trust and the Certificateholders from and against any taxes that may at any
time be asserted against the Trustee, the Trust or the Certificateholders with
respect to the transactions contemplated hereby, including any sales, gross
receipts, general corporation, tangible or intangible personal property,
privilege, or license taxes (but not including any taxes asserted with respect
to, and as of the date of, the sale, transfer and assignment of the Trust
Property to the Trust or the issuance and original sale of the Certificates, or
asserted with respect to ownership of the Receivables or other Trust Property,
federal or other income taxes, including franchise taxes measured by net income,
arising out of distributions on the Certificates or any other transactions
contemplated by this Agreement or transfer taxes arising in connection with
transfers of the Certificates) and reasonable costs and expenses in defending
against the same.
(d) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Collateral Agent, their directors, officers, employees and agents,
the Trust and the Certificateholders from and against any and all costs,
expenses, losses, claims, damages, and liabilities, to the extent that such
cost, expense, loss, claim, damage, or liability arose out of, or was imposed
upon, or incurred by, the Trust, the Trustee or the Certificateholders as a
result of the willful misfeasance, negligence, or bad faith of the Servicer in
the performance of its duties under this Agreement.
(e) The Servicer, or, in the event that the Trustee is also a
servicer, a predecessor Servicer, shall indemnify, defend and hold harmless the
Trustee, the Collateral Agent and their directors, officers, employees and
agents, from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the Trust and the duties herein contained, except to the extent
that such costs, expenses, losses, claims, damages or liabilities: (i) shall be
due to the willful misfeasance, negligence or bad faith of the Trustee; (ii)
relates to any tax other than the taxes with respect to which either the Seller
or the Servicer shall be required to indemnify the Trustee; (iii) shall arise
from the Trustee's breach of any of its representations or warranties set forth
in Section 10.15; (iv) shall be one as to which the Seller
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is required to indemnify the Trustee; or (v) shall arise out of, or be
incurred in connection with, the acceptance or performance by the Trustee of
its duties as a successor servicer hereunder.
(f) Indemnification under this Section 8.2 shall include
reasonable fees and expenses of counsel and expenses of litigation. The
indemnity obligations of the Servicer hereunder shall survive any termination of
the Servicer pursuant to Section 9.1, but only with respect to obligations
arising prior thereto, and any payment of the amount owing under, or the
Purchase Amount with respect to, any Receivable and shall survive the
termination of the Trust or the earlier removal or resignation of the Trustee.
If the Servicer shall have made any indemnity payments pursuant to this Section
8.2 and the Trustee thereafter collects any of such amounts from others, the
Trustee shall, as soon as practicable upon receipt thereof, repay such amounts
to the Servicer, without interest.
Section 8.3 MERGER OR CONSOLIDATION OF THE SERVICER. Any
corporation or other entity (i) into which the Servicer may be merged or
consolidated, (ii) that may result from any merger, conversion, or consolidation
to which the Servicer is a party, or (iii) that may succeed by purchase and
assumption to all or substantially all of the business of the Servicer, where
the Servicer is not the surviving entity, which corporation or other entity
shall be an Eligible Servicer and shall execute an agreement of assumption to
perform every obligation of the Servicer under this Agreement, shall be the
successor to the Servicer under this Agreement (without relieving the outgoing
Servicer of its responsibilities hereunder, if it survives such merger,
conversion or consolidation) without any further act on the part of any of the
parties to this Agreement. The Servicer shall promptly inform the Trustee and
the Rating Agencies of any such merger, conversion, consolidation or purchase
and assumption where the Servicer is not the surviving entity.
Section 8.4 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS.
(a) Except as provided in this Agreement, the Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its duties to service the Receivables in accordance with this
Agreement and that in its opinion may cause it to incur any expense or
liability; PROVIDED, HOWEVER, that the Servicer may undertake, at its expense,
any reasonable action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties to this Agreement and the
interests of the Certificateholders under this Agreement.
(b) The Servicer, and any director or officer or employee or
agent of the Servicer, may rely in good faith on any document of any kind,
believed by it to be genuine and properly executed and submitted by any Person
respecting any matters arising hereunder.
Section 8.5 SERVICER NOT TO RESIGN. The Servicer shall not
resign from its obligations and duties under this Agreement except upon a
determination that the performance of its duties is no longer permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel (which counsel shall be
outside counsel to the Servicer) to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the responsibilities and obligations of the outgoing
Servicer in accordance with Section 9.2.
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Section 8.6 SERVICER MAY OWN CERTIFICATES. The Servicer, and
any Affiliate of the Servicer, may, in its individual or any other capacity,
become the owner or pledgee of Certificates with the same rights as it would
have if it were not the Servicer or an Affiliate thereof, except as otherwise
provided in the definition of "Certificateholder," "Class A Certificateholder"
and "Class B Certificateholder" in Section 1.1. Certificates so owned by or
pledged to the Servicer or such Affiliate shall have an equal and proportionate
benefit under the provisions of this Agreement, without preference, priority or
distinction as among all of the Certificates.
ARTICLE IX
SERVICING TERMINATION
Section 9.1 EVENTS OF SERVICING TERMINATION. (a) If any one of
the following events ("EVENTS OF SERVICING TERMINATION") shall occur and be
continuing:
(i) Any failure by the Servicer to deliver to the
Trustee the Servicer's Certificate for any Collection Period, which shall
continue beyond the earlier of three Business Days from the date the
Servicer's Certificate was due to be delivered and the related Deposit
Date, or any failure by the Servicer to deliver to any of the Accounts,
the Reserve Account or the Yield Supplement Account any proceeds or
payment required to be so delivered under the terms of the Certificates
and this Agreement, which shall continue unremedied for a period of five
Business Days following the due date therefor (or, in the case of a
payment or deposit to be made no later than a Deposit Date immediately
preceding a Distribution Date, the failure to make such payment or
deposit by such Distribution Date); or
(ii) Any failure on the part of the Servicer duly to
observe or to perform in any material respect any other covenants or
agreements set forth in the Certificates or in this Agreement (which
determination shall be made without regard to whether funds are available
to the Certificateholders pursuant to the Reserve Account), which failure
shall (a) materially and adversely affect the rights of
Certificateholders and (b) continue unremedied for a period of 90 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given (1) to the Servicer by the
Trustee, or (2) to the Trustee and the Servicer by the holders of
Certificates evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates and the Class B
Certificates taken together as a single class; or
(iii) The entry of a decree or order by a court or agency
or supervisory authority of competent jurisdiction for the appointment of
a conservator, receiver, liquidator or trustee for the Servicer in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities, or similar proceedings, or for the winding up or liquidation
of its affairs, and any such decree or order continues unstayed and in
effect for a period of 60 consecutive days; or
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(iv) The consent by the Servicer to the appointment of a
conservator, receiver, liquidator or trustee in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and liabilities,
or similar proceedings of or relating to the Servicer or relating to
substantially all of its property, the admission in writing by the
Servicer of its inability to pay its debts generally as they become due,
the filing by the Servicer of a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, the making
by the Servicer of an assignment for the benefit of its creditors or the
voluntary suspension by the Servicer of payment of its obligations; or
(v) The failure by the Servicer to be an Eligible
Servicer;
then, and in each and every case and so long as an Event of Servicing
Termination shall not have been cured or waived, either the Trustee, or, for so
long as Class A Certificates are outstanding, the holders of Certificates
evidencing not less than a majority of the aggregate outstanding principal
balance of the Class A Certificates or, if no Class A Certificates are
outstanding, the holders of Certificates evidencing not less than a majority of
the aggregate outstanding principal balance of the Class B Certificates, by
notice then given in writing to the Servicer, may terminate all of the rights
and obligations of the Servicer under this Agreement. On or after the receipt
by the Servicer of such written notice, all authority and power of the Servicer
under this Agreement, whether with respect to the Certificates or the Trust
Property or otherwise, shall pass to and be vested in the Trustee or successor
servicer appointed by the Trustee pursuant to Section 9.2; and thereupon the
Trustee shall be authorized and empowered to execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Receivable Files or the Insurance
Policies, the certificates of title to the Financed Vehicles, or otherwise. The
Servicer shall cooperate with the Trustee or such successor servicer in
effecting the termination of the Servicer's responsibilities and rights as
Servicer under this Agreement, including the transfer to the Trustee or such
successor servicer for administration of all cash amounts that are at the time
held by the Servicer for deposit, shall have been deposited by the Servicer in
the Certificate Account, or thereafter shall be received with respect to a
Receivable, all Receivable Files and all information or documents that the
Trustee or such successor servicer may require. In addition, the Servicer shall
transfer its electronic records relating to the Receivables to the successor
servicer in such electronic form as the successor servicer may reasonably
request. All reasonable costs and expenses incurred by the successor servicer,
including allowable compensation of employees and overhead costs, in connection
with the transfer of servicing shall be paid by the outgoing Servicer upon
presentation of reasonable documentation of such costs and expenses.
(b) If any of the foregoing Events of Servicing Termination
occur, the Trustee shall have no obligation to notify Certificateholders or any
other Person of such occurrence prior to the continuance of such event through
the end of any cure period specified in Section 9.1(a).
Section 9.2 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR SERVICER.
Upon the Servicer's resignation pursuant to Section 8.5, or upon the Servicer's
receipt of notice of termination as Servicer pursuant to Section 9.1, the
Trustee shall be the successor in all respects to the Servicer
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in its capacity as Servicer under this Agreement, and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions of this Agreement, except that the
Trustee, when acting as a successor servicer, shall not be obligated to
purchase Receivables pursuant to Section 3.7 unless the obligation to
purchase arose after the date of the notice of termination given to the
Servicer pursuant to Section 9.1, and the Trustee shall not be liable for any
acts or omissions of such terminated Servicer or for any breach by the
terminated Servicer of any of its representations or warranties contained
herein or in any related documents or agreements. As compensation therefor,
the Trustee shall be entitled to such compensation (whether payable out of
the Certificate Account or otherwise) as the Servicer would have been
entitled to under this Agreement if no such notice of termination or
resignation had been given. Notwithstanding the above, the Trustee may, if
it shall be unwilling or legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, an Eligible Servicer as the
successor to the terminated Servicer under this Agreement. In connection
with such appointment, the Trustee may make such arrangements for the
compensation of such successor servicer out of payments on Receivables as it
and such successor shall agree, which, in no event, shall be greater than
that payable to First Security Bank, N.A. in its capacity as the Servicer
hereunder. The Trustee or such successor servicer shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. No Servicer shall resign or be relieved of its duties under this
Agreement until a newly appointed servicer shall have assumed the
responsibilities and obligations of the terminated Servicer under this
Agreement.
Section 9.3 EFFECT OF SERVICING TRANSFER.(a) After the transfer
of servicing hereunder, the Trustee or the successor servicer shall notify
Obligors to make directly to the successor servicer payments that are due under
the Receivables after the effective date of such transfer.
(b) Except as provided in Sections 8.2 and 10.8 after the
transfer of servicing hereunder, the outgoing Servicer shall have no further
obligations with respect to the management, administration, servicing, custody
or collection of the Receivables and the successor servicer shall have all of
such obligations, except that the outgoing Servicer will transmit or cause to be
transmitted directly to the successor servicer for its own account, promptly on
receipt and in the same form in which received, any amounts held by the outgoing
Servicer (properly endorsed where required for the successor servicer to collect
any such items) received as payments upon or otherwise in connection with the
Receivables and the outgoing Servicer shall continue to cooperate with the
successor servicer by providing information and in the enforcement of the Dealer
Agreements, the Dealer Assignments and the Insurance Policies.
(c) A transfer of servicing hereunder shall not affect the
rights and duties of the parties hereunder (including the obligations and
indemnities of the Seller pursuant to Sections 2.4, 3.3, 7.1 and 7.2 or, with
respect to obligations and indemnities arising prior to, or concurrently with, a
transfer of servicing hereunder, the outgoing Servicer pursuant to Section 3.7,
8.1 or 8.2) other than those relating to the management, administration,
servicing, custody or collection of the Receivables and the other Trust
Property. The successor servicer shall, upon its appointment pursuant to
Section 9.2 and as part of its duties and responsibilities under this Agreement,
promptly take all action it deems necessary or appropriate so that the outgoing
Servicer (in whatever capacity) is paid or
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reimbursed all amounts it is entitled to receive under this Agreement on each
Distribution Date subsequent to the date on which it is terminated as
Servicer hereunder.
(d) Any successor servicer shall provide the Seller with access
to the Receivable Files and to the successor servicer's records (whether written
or automated) with respect to the Receivable Files. Such access shall be
afforded without charge, but only upon reasonable request and during normal
business hours at the offices of the successor servicer. Nothing in this
Section 9.3 shall affect the obligation of the successor servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors, and
the failure of the successor servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section 9.3.
Section 9.4 NOTIFICATION TO CERTIFICATEHOLDERS. Upon any notice
of an Event of Servicing Termination or upon any termination of, or appointment
of a successor to, the Servicer pursuant to this Article IX, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses of record, and to the Rating Agencies at the following addresses:
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ABS Xxxxxxxxxx Xxxxxxxxxx, 0xx Xxxxx; Standard & Poor's Ratings
Group, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Asset Backed
Surveillance Group.
Section 9.5 WAIVER OF PAST EVENTS OF SERVICING TERMINATION. The
holders of Certificates evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates and the Class B
Certificates taken together as a single class, may, on behalf of all holders of
Certificates waive any Event of Servicing Termination hereunder and its
consequences, except an event resulting from the failure to make any required
deposits to, or payments from, any of the Accounts or the Reserve Account in
accordance with this Agreement. Upon any such waiver of a past Event of
Servicing Termination, such event shall cease to exist, and shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other event or impair any right arising therefrom,
except to the extent expressly so waived.
Section 9.6 TRANSFER OF ACCOUNTS. Notwithstanding the
provisions of Section 9.1, if any of the Accounts, the Yield Supplement Account
or the Reserve Account is maintained with the Servicer or any Affiliate of the
Servicer and an Event of Servicing Termination shall occur and be continuing,
the Servicer shall promptly, and in any event within five Business Days, give
notice to the Trustee and the Seller of such Event of Servicing Termination, and
the Trustee or the Seller, as the case may be, within five days after the
receipt of such notice, shall establish new Eligible Deposit Accounts conforming
with the requirements of this Agreement and promptly shall transfer all funds in
any such Accounts, the Yield Supplement Account or the Reserve Account to such
new Eligible Deposit Accounts.
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ARTICLE X
THE TRUSTEE
Section 10.1 ACCEPTANCE BY TRUSTEE. The Trustee, by its
execution of this Agreement, accepts all consideration conveyed by the Seller
pursuant to Section 2.1 and the Trust created hereunder and declares that it
shall hold such consideration in trust upon the terms hereof set forth for the
benefit of the Certificateholders.
Section 10.2 DUTIES OF TRUSTEE. (a) The Trustee, both prior to
and after the curing or waiver of an Event of Servicing Termination, undertakes
to perform only such duties as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this Agreement against
the Trustee. If an Event of Servicing Termination shall have occurred and shall
not have been cured (the appointment of a successor servicer (including the
Trustee) to constitute a cure for the purposes of this Article X) or otherwise
waived, the Trustee shall exercise such of the rights and powers vested in it by
this Agreement, and shall use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs; PROVIDED, HOWEVER, that if the Trustee assumes the
duties of the Servicer pursuant to Section 9.2, the Trustee in performing such
duties shall use the degree of skill and attention required by Section 3.1.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders, or other instruments furnished
to the Trustee that are required specifically to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, its own willful misconduct or its own bad faith;
PROVIDED, HOWEVER, that:
(i) prior to the occurrence of an Event of Servicing
Termination, and after the curing or waiver of all such Events of
Servicing Termination that may have occurred, the duties and obligations
of the Trustee shall be determined solely by the express provisions of
this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth
in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, the permissible right of the Trustee
(solely in its capacity as such) to do things enumerated in this
Agreement shall not be construed as a duty and, in the absence of bad
faith on the part of the Trustee, or manifest error, the Trustee (solely
in its capacity as such) may conclusively rely on the truth of the
statements and the correctness of the computations and opinions expressed
upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement;
(ii) the Trustee shall not be liable for an error of
judgment made in good faith by an officer of the Trustee, unless it shall
be proved that the Trustee shall have been negligent in performing its
duties in accordance with the terms of this Agreement; and
(iii) the Trustee shall not be liable with respect to any
action taken, suffered, or omitted to be taken in good faith in
accordance with the direction of the holders
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of Certificates evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates and the
Class B Certificates taken together as a single class, as set forth in
Section 9.1, relating to the time, method and place of conducting any
proceeding or any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that the repayment of such funds or
indemnity satisfactory to it against such risk or liability shall not be assured
to it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under this Agreement except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Servicer in accordance with
the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or Financed Vehicle or to
impair the value of any Receivable or Financed Vehicle.
(f) The Trustee shall have no power to vary the corpus of the
Trust including (i) accepting any substitute obligation for a Receivable
initially assigned to the Trustee under this Agreement, (ii) adding any other
investment, obligation or security, or (iii) withdrawing any Receivable, except
for a withdrawal permitted under this Agreement.
Section 10.3 TRUSTEE'S CERTIFICATE. As soon as practicable after
each Deposit Date on which Receivables shall be assigned to the Seller pursuant
to Section 2.4 or to the Servicer pursuant to Section 3.7 or 11.2, as
applicable, the Trustee shall execute a certificate, prepared by the Servicer,
including its date and the date of the Agreement, and accompanied by a copy of
the Servicer's Certificate for the related Collection Period. The Trustee's
certificate shall operate, as of such Deposit Date, as an assignment pursuant to
Section 10.4.
Section 10.4 TRUSTEE'S ASSIGNMENT OF PURCHASED RECEIVABLES. With
respect to all Receivables repurchased by the Seller pursuant to Section 2.4, or
purchased by the Servicer pursuant to Section 3.7 or 11.2, the Trustee shall
assign, without recourse, representation, or warranty, other than that the
Trustee, on behalf of the Trust, has not imposed any liens on the Receivables to
be repurchased, to the Seller or the Servicer, as the case may be, all the
Trustee's right, title, and interest in, to and under such Receivables, and all
security and documents and all other Trust Property conveyed pursuant to Section
2.1 with respect to such Receivables. Such assignment shall be a sale and
assignment outright, and not for security. If, in any enforcement suit or legal
proceeding, it is held that the Seller or the Servicer, as the case may be, may
not enforce any such Receivable on the ground that it shall not be a real party
in interest or a holder entitled to enforce the Receivable, the Trustee shall,
at the expense of the Seller or the Servicer, as the case may be, take such
steps as the Seller or the Servicer, as the case may be, deems necessary to
enforce the Receivable, including bringing suit in the Trustee's name or the
names of the Certificateholders.
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Section 10.5 CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as
otherwise provided in Section 10.2:
(i) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate of auditors or accountants or any other certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, note or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties.
(ii) The Trustee may consult with counsel and any Opinion
of Counsel or any advice of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it under this Agreement in good faith and in accordance
with such Opinion of Counsel or any advice of such counsel.
(iii) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or in
relation to this Agreement, at the request, order or direction of any of
the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses, and
liabilities that may be incurred therein or thereby. Nothing contained
in this Agreement, however, shall relieve the Trustee of the obligations,
upon the occurrence of an Event of Servicing Termination that is not
timely cured or waived pursuant to Section 9.5, to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(iv) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred
upon it by this Agreement.
(v) Prior to the occurrence of an Event of Servicing
Termination and after the curing or waiver of all Events of Servicing
Termination that may have occurred, the Trustee shall not be bound to
make any investigation into the facts of any matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, direction, order, approval, bond, note or other paper
or document, unless requested in writing so to do by holders of Class A
Certificates evidencing not less than a majority of the aggregate
outstanding principal balance of the Class A Certificates or, in the
event there are no Class A Certificates outstanding, by the holders of
Class B Certificates evidencing not less than a majority of the
outstanding principal balance of the Class B Certificates; PROVIDED,
HOWEVER, that if the payment within a reasonable time to the Trustee of
the costs, expenses, or liabilities likely to be incurred by it in the
making of an investigation requested by the Certificateholders is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may
require indemnity satisfactory to it against such cost, expense, or
liability as a condition to so
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proceeding. The reasonable expense of every such examination shall be
paid by the Servicer, or, if paid by the Trustee, shall be reimbursed
by the Servicer upon demand. Nothing in this clause (v) shall affect
the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors;
provided, further, that the Trustee shall be entitled to make such
further inquiry or investigation into such facts or matters as it may
reasonably see fit, and if the Trustee shall determine to make such
further inquiry or investigation it shall be entitled to examine the
books and records of the Servicer or the Seller, personally or by
agent or attorney, at the sole cost and expense of the Servicer or the
Seller, as the case may be.
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either directly or
by or through agents, attorneys, nominees or a custodian, and shall not
be liable for the acts of, or for the supervision of, such agents,
attorneys, nominees or custodians, PROVIDED that they have been appointed
with due care.
(vii) The Trustee shall not be required to make any
initial or periodic examination of any documents or records related to
the Receivables or Financed Vehicles for the purpose of establishing the
presence or absence of defects, the compliance by the Seller with their
representations and warranties or for any other purpose.
Section 10.6 TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES.
The Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as expressly provided herein, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates (other than the Trustee's execution of, and the
certificate of authentication on, the Certificates), or of any Receivable or
related document, or for the validity of the execution by the Seller and the
Servicer of this Agreement or of any supplements hereto or instruments of
further assurance, or for the sufficiency of the Trust Property hereunder, and
the Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreements on the part of the Seller
or the Servicer under this Agreement except as herein set forth; but the Trustee
may require the Seller or the Servicer to provide full information and advice as
to the performance of the aforesaid covenants, conditions and agreements. The
Trustee (solely in its capacity as such) shall have no obligation under any
circumstance to perform any of the duties of the Seller or of the Servicer
except as explicitly set forth in this Agreement. The Trustee shall have no
liability in connection with compliance of the Servicer or the Seller with
statutory or regulatory requirements related to the Receivables. The Trustee
shall not make or be deemed to have made any representations or warranties with
respect to the Receivables or the validity or sufficiency of any assignment of
the Receivables to the Trust or the Trustee. The Trustee (solely in its
capacity as such) shall at no time have any responsibility or liability for, or
with respect to, the legality, validity or enforceability of any security
interest in any Financed Vehicle or (prior to the time, if any, that the
Servicer is terminated as custodian hereunder) any Receivable, or the perfection
and priority of such a security interest or the maintenance of any such
perfection and priority, the efficacy of the Trust or its ability to generate
funds sufficient to provide for the payments to be distributed to
Certificateholders under this Agreement, the existence, condition, location, and
ownership of any
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Financed Vehicle, the existence and enforceability of any Insurance Policy,
the existence and contents of any Receivable or any computer or other record
thereof, the validity of the assignment of any Receivable to the Trust or of
any intervening assignment, the completeness of any Receivable, the
performance or enforcement of any Receivable, the compliance by the Seller
with any warranty or representation made by it under this Agreement or in any
related document and the accuracy of any such warranty or representation,
prior to the Trustee's receipt of notice or other discovery of any
noncompliance therewith or any breach thereof, any investment of monies by
the Servicer or any loss resulting therefrom (it being understood that the
Trustee shall remain responsible for any Trust Property that it may hold),
the acts or omissions of the Seller, the Servicer, or any Obligor, any action
of the Servicer taken in the name of the Trustee, or any action by the
Trustee taken at the instruction of the Servicer in the absence of bad faith
on the part of the Trustee or manifest error in such instruction; PROVIDED,
HOWEVER, that the foregoing shall not relieve the Trustee of its obligation
to perform its duties under this Agreement. Except with respect to a claim
based on the failure of the Trustee to perform its duties under this
Agreement (whether in its capacity as Trustee or as successor servicer) or
based on the Trustee's willful misconduct, negligence, or bad faith, or based
on the Trustee's breach of a representation and warranty contained in Section
10.15, no recourse shall be had to the Trustee (whether in its individual
capacity or as a Trustee) for any claim based on any provision of this
Agreement, the Certificates, or any Receivable or assignment thereof against
the Trustee in its individual capacity; the Trustee shall not have any
personal obligation, liability, or duty whatsoever to any Certificateholder
or any other Person with respect to any such claim. The Trustee shall not be
accountable for the use or application by the Seller of the proceeds of such
Certificates, or for the use or application of any funds paid to the Servicer
in respect of the Receivables prior to the time such amounts are deposited in
the Certificate Account (whether or not the Certificate Account is maintained
with the Trustee). The Trustee shall have no liability for any losses from
the investment or reinvestment in Eligible Investments made in accordance
with Section 4.1.
Section 10.7 TRUSTEE MAY OWN CERTIFICATES. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may transact banking business with the Seller, the Servicer and their
respective Affiliates with the same rights as it would have if it were not
Trustee.
Section 10.8 TRUSTEE'S AND COLLATERAL AGENT'S FEES AND EXPENSES.
The Servicer agrees to pay to the Trustee and the Collateral Agent, and the
Trustee and the Collateral Agent shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts created by this Agreement and in the exercise and
performance of any of the powers and duties under this Agreement as the Trustee
or the Collateral Agent, as applicable, and the Servicer shall pay or reimburse
the Trustee or the Collateral Agent, as applicable, upon its request for all
reasonable expenses (including, without limitation, expenses incurred in
connection with notices or other communications to Certificateholders),
disbursements, and advances (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and of all persons not
regularly in its employ) incurred or made by the Trustee or the Collateral Agent
in accordance with any of the provisions of this Agreement (including the
reasonable fees and expenses of its agents, any co-trustee and counsel) or in
defense of any action brought against it in connection with this Agreement
except any such expense, disbursement, or advance as may arise from its
negligence,
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willful misfeasance, or bad faith. The Servicer's covenant to pay the
expenses, disbursements and advances provided for in the preceding sentence
shall survive the termination of this Agreement or the earlier resignation or
removal of the Trustee or the Collateral Agent, as applicable. When the
Trustee incurs expenses or renders services in connection with an Event or
Servicing Termination described in Sections 9.1(a)(iii) or 9.1(a)(iv), such
expenses (including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditor's rights
generally.
Section 10.9 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
CERTIFICATES. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
Section 10.10 ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee
under this Agreement shall at all times have an office in the same state as the
Corporate Trust Office is located on the date of this Agreement or which is
otherwise consented to by the Seller. The Trustee shall be organized and doing
business under the banking laws of such state or of the United States, shall be
authorized under such laws to exercise corporate trust powers, shall have a
consolidated net worth of at least $50,000,000, shall have a credit rating of at
least Baa3 from Xxxxx'x and shall be subject to supervision or examination by
federal or state banking authorities. If such corporation shall publish reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 10.10, the consolidated net worth of such corporation shall be deemed to
be its consolidated capital and surplus as set forth in its most recent
consolidated report of condition so published. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
10.10, the Trustee shall resign immediately in the manner and with the effect
specified in Section 10.11.
Section 10.11 RESIGNATION OR REMOVAL OF TRUSTEE AND COLLATERAL
AGENT. (a) The Trustee may at any time resign and be discharged from the Trust
hereby created by giving 30 days' prior written notice thereof to the Servicer.
Upon receiving such notice of resignation, the Servicer shall promptly appoint a
successor trustee, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.10 and shall fail to resign after
written request therefor by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver, conservator or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose
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of rehabilitation, conservation or liquidation, then the Servicer may remove
the Trustee. If the Trustee is removed under the authority of the
immediately preceding sentence, the Servicer shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed, the successor
trustee, the Certificateholders at their respective addresses of record and
the Rating Agencies.
(c) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 10.11
shall not become effective until acceptance of appointment by the successor
trustee pursuant to Section 10.12.
(d) The respective obligations of the Seller and the Servicer
described in this Agreement shall survive the removal or resignation of the
Trustee as provided in this Agreement.
(e) Upon the removal or termination of the Trustee for any
reason, the Collateral Agent shall also be removed or terminated and the
successor trustee appointed pursuant to Section 10.12 shall be appointed and
become the successor collateral agent so that the Trustee and the Collateral
Agent remain the same Person.
Section 10.12 SUCCESSOR TRUSTEE. (a) Any successor Trustee
appointed pursuant to Section 10.11 shall execute, acknowledge, and deliver to
the Servicer and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
rights, powers, duties, and obligations of its predecessor under this Agreement,
with like effect as if originally named as Trustee. The predecessor Trustee
shall deliver to the successor Trustee all documents and statements held by it
under this Agreement, and the Servicer and the predecessor Trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor Trustee
all such rights, powers, duties, and obligations.
(b) No successor trustee shall accept appointment as provided
in this Section 10.12 unless at the time of such acceptance such successor
trustee shall be eligible pursuant to Section 10.10.
(c) Upon acceptance of appointment by a successor trustee
pursuant to this Section 10.12, the Servicer shall mail notice of such
acceptance by the successor trustee under this Agreement to all
Certificateholders at their respective addresses of record and to the Rating
Agencies. If the Servicer shall fail to mail such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Servicer. No Trustee
hereunder shall be liable for the acts or omissions of any successor trustee.
Section 10.13 MERGER OR CONSOLIDATION OF TRUSTEE. Any corporation
or banking association which is eligible to be a successor trustee under Section
10.10 (i) into which the Trustee may be merged or consolidated, (ii) that may
result from any merger, conversion, or consolidation
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to which the Trustee shall be a party, or (iii) that may succeed by purchase
and assumption to the business of the Trustee, where the Trustee is not the
surviving entity, which corporation or banking association executes an
agreement of assumption to perform every obligation of the Trustee under this
Agreement, shall be the successor of the Trustee hereunder, without the
execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. The
Trustee shall promptly notify the Servicer and the Rating Agencies of any
such merger, conversion, consolidation or purchase and assumption where the
Trustee is not the surviving entity.
Section 10.14 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Property or any Financed Vehicle may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and
to vest in such Person, in such capacity and for the benefit of the
Certificateholders, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section 10.14, such powers, duties,
obligations, rights, and trusts as the Servicer and the Trustee may consider
necessary or desirable. If the Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, or
in case an Event of Servicing Termination shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to
meet the terms of eligibility as a successor trustee pursuant to Section
10.10 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.12.
Notwithstanding the appointment of a co-trustee or separate trustee
hereunder, the Trustee shall not be relieved of any of its obligations under
this Agreement.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties, and obligations
conferred or imposed upon the Trustee shall be conferred upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee under this Agreement or as successor to the
Servicer under this Agreement), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust Property or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee.
(ii) No co-trustee or separate trustee under this Article
shall be personally liable by reason of any act or omission of any other
trustee under this Agreement.
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(iii) The Servicer and the Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee
or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and in particular to the provisions of this Article X. 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 Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Each such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer.
(d) Any separate trustee or co-trustee may, at any time,
appoint the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of the Trustee as a new or successor trustee. The
Trustee shall promptly notify the Servicer and the Rating Agencies of any
appointment made pursuant to this Section 10.14.
Section 10.15 REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The
Trustee makes the following representations and warranties on which the Seller,
the Servicer, and Certificateholders may rely:
(i) ORGANIZATION AND GOOD STANDING. The Trustee is a
banking corporation duly organized, validly existing, and in good
standing under the laws of the State of New York;
(ii) POWER AND AUTHORITY. The Trustee has full power,
authority and legal right to execute, deliver, and perform this Agreement
and has taken all necessary action to authorize the execution, delivery,
and performance by it of this Agreement; and
(iii) ENFORCEABILITY. This Agreement has been duly
executed and delivered by the Trustee and this Agreement constitutes a
legal, valid and binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms, subject as to enforceability,
to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity).
Section 10.16 REPORTS BY TRUSTEE. The Trustee shall provide to
any Certificateholder or Certificate Owner who so requests in writing (addressed
to the Corporate Trust Office) a copy of any Servicer's Certificate, the annual
statement described in Section 3.10, and the
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annual accountant's examination described in Section 3.11. The Trustee may
require any Certificateholder or Certificate Owner requesting such report to
pay a reasonable sum to cover the cost of the Trustee's complying with such
request.
Section 10.17 TAX ACCOUNTING. The Servicer shall prepare or shall
cause to be prepared any tax returns required to be filed by the Trust and shall
remit such returns to the Trustee for signature at least five days before such
returns are due to be filed. The Trustee, upon request, will furnish the
Servicer with all such information known to the Trustee as may be reasonably
required in connection with the preparation of all tax returns of the Trust, and
shall, upon request, execute such returns. The Servicer shall prepare the tax
returns of the Trust in accordance with (i) the Code and any regulations
(including, to the extent applicable by their terms, proposed regulations)
thereunder or (ii) any applicable state or local statute or regulation.
ARTICLE XI
TERMINATION
Section 11.1 TERMINATION OF THE TRUST. (a) The Trust, and the
respective obligations and responsibilities of the Seller, the Servicer, and the
Trustee hereunder shall terminate (except as otherwise expressly provided
herein) upon the earliest of: (i) the Distribution Date next succeeding the
purchase by the Servicer at its option, pursuant to Section 11.2, of the
Receivables (other than Defaulted Receivables) remaining in the Trust, (ii) the
payment to Certificateholders, the Trustee and the Collateral Agent of all
amounts required to be paid to them pursuant to this Agreement or (iii) the
Distribution Date next succeeding the month which is six months after the
maturity or the liquidation of the last Receivable held in the Trust and the
disposition of any amounts received upon liquidation of any property remaining
in the Trust; PROVIDED, HOWEVER, that in no event shall the Trust created by
this Agreement continue beyond the expiration of 21 years from the date hereof.
The Servicer shall promptly notify the Trustee of any prospective termination
pursuant to this Section 11.1, which notice shall contain the information
required by the Trustee to give its notice thereunder.
(b) Notice of any termination, specifying the Distribution Date
upon which the Certificateholders may surrender the Certificates to the Trustee
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders of record and the Rating Agencies
mailed not earlier than the 15th day and not later than the 25th day of the
month next preceding the specified Distribution Date stating the amount of any
such final payment and that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Trustee therein
specified. Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Certificateholders amounts distributable on
such Distribution Date pursuant to Section 4.5. Amounts remaining after
distribution, or providing for distribution, to the Certificateholders shall be
distributed to the Seller.
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(c) In the event that all of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. The Trustee shall after giving such notice deliver or cause to be
delivered to the Servicer a list of those Certificateholders who have not
surrendered Certificates for cancellation. If, within one year after the second
notice, all the Certificates shall not have been surrendered for cancellation,
the Servicer may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Agreement. Any funds
remaining in the Trust after exhaustion of such remedies shall be distributed by
the Trustee to the Seller and the Certificateholders shall thereafter look
solely to the Seller for such payment.
Section 11.2 OPTIONAL PURCHASE OF ALL RECEIVABLES. In the event
that (i) the Pool Balance shall be 10% or less of the Original Pool Balance as
of the last day of any Collection Period and (ii) the aggregate Purchase Amount
for the Receivables (other than the Defaulted Receivables) is greater than or
equal to the sum of the Class A Certificate Balance and the Class B Certificate
Balance, the Servicer shall have the option to purchase the corpus of the Trust
on any Distribution Date occurring in a subsequent Collection Period. To
exercise such option, the Servicer shall notify the Trustee no later than the
10th day of the month in which such purchase is to be effected and deposit the
aggregate Purchase Amount for the Receivables (other than Defaulted Receivables)
into the Certificate Account on the Deposit Date occurring in the month in which
such purchase is to be effected. The payment shall be made in the manner
specified in Section 4.3, and shall be distributed pursuant to Section 4.5. Upon
such payment the Servicer shall succeed to and own all interests in and to the
Trust and the Trust Property.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 AMENDMENT. (a) This Agreement may be amended by the
Seller, the Servicer and the Trustee, without the consent of any of the
Certificateholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or modifying
in any manner the rights of the Certificateholders; PROVIDED, HOWEVER, that such
action shall not, as evidenced by an Opinion of Counsel to the Seller delivered
to the Trustee, materially and adversely affect the interests of any
Certificateholder or cause the Trust to be classified for federal tax purposes
as an association taxable as a corporation.
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Trustee, with the consent of the holders of
Certificates evidencing not less than a majority of the aggregate outstanding
principal balance of the Class A Certificates and the Class B Certificates taken
together as a single class, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement,
or of modifying in any manner the rights of the Certificateholders; PROVIDED,
HOWEVER, that no such amendment shall (i) increase
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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 on any Certificate,
without the consent of all adversely affected Certificateholders, (ii) reduce
the percentage of the aggregate outstanding principal balance of the
Certificates, the holders of which are required to consent to any such
amendment, without the consent of all Certificateholders, (iii) materially
and adversely affect the interests of either the Class A Certificateholders
or the Class B Certificateholders without the consent of the holders of Class
A Certificates or Class B Certificates, as the case may be, evidencing not
less than a majority of the aggregate outstanding principal balance of the
Class A Certificates or the Class B Certificates, as the case may be, (iv)
adversely affect the rating of the Class A Certificates or the Class B
Certificates by the Rating Agencies without the consent of holders of Class A
Certificates or Class B Certificates, as the case may be, evidencing not less
than two-thirds of the aggregate outstanding principal balance of the Class A
Certificates or the Class B Certificates, as the case may be, or (v) cause
the Trust to be classified as an association taxable as a corporation.
Promptly after the execution of any such amendment or consent, the Trustee
shall furnish written notification of the substance of such amendment or
consent to each Certificateholder.
(c) It shall not be necessary for the consent of
Certificateholders pursuant to this Section 12.1 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
of evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Trustee may prescribe.
(d) Notice of any amendment of this Agreement shall be sent by
the Servicer to the Rating Agencies, at such address as the Rating Agencies may
from time to time specify in writing.
(e) The Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's own rights, duties, indemnities
or immunities under this Agreement or otherwise.
(f) In connection with any amendment pursuant to this Section
12.1, the Trustee shall be entitled to receive an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the Agreement.
Section 12.2 PROTECTION OF TITLE TO TRUST. (a) The Servicer shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain and protect the interest of the
Certificateholders and the Trustee under this Agreement in the Trust Property
and in the proceeds thereof. The Servicer shall deliver (or cause to be
delivered) to the Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
In the event the Servicer fails to perform its obligations under this
subsection, the Trustee may (but shall not be obligated to) do so, at the
expense of the Servicer.
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(b) Neither the Seller nor the Servicer shall change its
name, identity, or corporate structure in any manner that would, could, or
might make any financing statement or continuation statement filed by the
Servicer in accordance with paragraph (a) above seriously misleading within
the meaning of Section 9-402(7) of the Relevant UCC, unless it shall have
given the Trustee at least 60 days' prior written notice thereof.
(c) The Seller and the Servicer shall give the Trustee at
least 60 days' prior written notice of any relocation of their principal
executive offices if, as a result of such relocation, the applicable
provisions of the Relevant UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement. The Seller and the Servicer shall at all times maintain
each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
(d) The Servicer shall maintain accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know, as of the most recent monthly calculation, the status of
such Receivable, including payments, Liquidation Proceeds and Recoveries made
and payments owing (and the nature of each), and (ii) reconciliation between
payments or Recoveries on (or with respect to) each Receivable and the
amounts from time to time deposited in the Certificate Account in respect of
such Receivable.
(e) The Servicer shall maintain its computer systems so
that, from and after the time of sale under this Agreement of the Receivables
to the Trustee, the Servicer's master computer records (including archives)
that shall refer to a Receivable indicate clearly that such Receivable is
owned by the Trust. Indication of the Trust's ownership of a Receivable
shall be deleted from or modified on the Servicer's computer systems when,
and only when, the Receivable shall be paid or shall become a Purchased
Receivable.
(f) If at any time the Seller or the Servicer shall propose
to sell, grant a security interest in, or otherwise transfer any interest in
motor vehicle retail installment sale contracts to any prospective purchaser,
lender or other transferee, the Seller or the Servicer, as the case may be,
shall give to such prospective purchaser, lender, or other transferee
computer tapes, records, or print-outs (including any restored from archives)
that, if they shall refer in any manner whatsoever to any Receivable, shall
indicate clearly that such Receivable has been sold and is owned by the Trust.
(g) Upon request, the Servicer, at its expense, shall
furnish to the Trustee, within 10 Business Days, a list of all Receivables
then held as part of the Trust, together with a reconciliation of such list
to each Schedule of Receivables and to the Servicer's Certificate furnished
pursuant to Section 3.9 indicating removal of Receivables from the Trust.
The Trustee shall hold any such list and the Schedule of Receivables, as well
as a copy of this Agreement, available for inspection during normal business
hours at the Corporate Trust Office.
(h) The Servicer shall deliver to the Trustee upon the
Closing Date, upon the date which is 60 months after the initial filings
required hereunder to perfect the security interest of the Trustee and upon
the execution and delivery of each amendment, if any, of this Agreement, an
Opinion of Counsel to the Servicer either (x) stating that, in the opinion of
such counsel, no filings or other action, other than the filings required in
the appropriate filing offices as described in such
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opinion, are necessary to perfect and maintain (i) the security interest of
the Trustee in the Financed Vehicles, subject to certain exceptions stated
therein, and (ii) the interest of the Trustee in the Receivables, the Dealer
Agreements or the Dealer Assignments and in each case the proceeds thereof
against third parties, subject to certain exceptions stated therein, and
reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (y) stating that, in the opinion
of such counsel, no such action shall be necessary to perfect or continue the
perfected status of such interest.
Section 12.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. (a)
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, or entitle the Certificateholder's
legal representatives or heirs to claim an accounting or to take any action
or commence any proceeding in any court for a partition or winding up of the
Trust, or otherwise affect the rights, obligations, and liabilities of the
parties to this Agreement or any of them.
(b) No Certificateholder shall have any right to vote
(except as expressly provided herein) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties to
this Agreement, nor shall anything set forth in this Agreement, or contained
in the terms of the Certificates, be construed so as to constitute the
holders as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken pursuant to any provision of this Agreement.
(c) No Certificateholder shall have any right by virtue or
by availing itself of any provisions of this Agreement to institute any suit,
action, or proceeding in equity or at law upon or under or with respect to
this Agreement, unless such holder previously shall have given to the Trustee
a written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the holders of the Certificates evidencing not less than
a majority of the aggregate outstanding principal balance of the Class A
Certificates and the Class B Certificates taken together as a single class
shall have made written request upon the Trustee to institute such action,
suit, or proceeding in its own name as Trustee under this Agreement and shall
have offered to the Trustee such indemnity as it may require against the
costs, expenses, and liabilities to be incurred therein or thereby, and the
Trustee, for 30 days after its receipt of such notice, request, and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding; no one or more holders of Certificates shall have any right in
any manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or prejudice the rights of
the holders of any other Certificates, or to obtain or seek to obtain
priority over or preference to any other such holder or to enforce any right,
under this Agreement, except in the manner provided in this Agreement and for
the equal, ratable, and common benefit of all Class A Certificateholders or
Class B Certificateholders, as the case may be. For the protection and
enforcement of the provisions of this Section 12.3, each Certificateholder
and the Trustee shall be entitled to such relief as can be given either at
law or in equity.
SECTION 12.4 GOVERNING LAW. ALL ISSUES AND QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF NEW YORK
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OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 12.5 NOTICES. All demands, notices, directions and
communications under this Agreement shall be in writing, personally
delivered, or sent by telecopier, overnight courier or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given
upon receipt (a) in the case of the Seller or the Servicer, to First Security
Bank, N.A. at Office of the General Counsel, 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx
Xxxx, Xxxx 00000, Attention: Executive Vice President and General Counsel,
Facsimile No.: 000-000-0000, or at such other address as shall be designated
by the Seller or the Servicer in a written notice to the Trustee, with a copy
to Xxxxx Xxxxxx, Vice President, Corporate Finance, First Security Bank, 41
East 000 Xxxxx, 0xx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Facsimile No.:
000-000-0000 and (b) in the case of the Trustee, at the Corporate Trust
Office, Facsimile No.: 000-000-0000. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of record of such holder. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder shall receive such
notice.
Section 12.6 SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, provisions or terms
shall be deemed severable from the remaining covenants, provisions or terms
of this Agreement, and shall in no way affect the validity or enforceability
of the other provisions of this Agreement or of the Certificates or the
rights of the holders thereof.
Section 12.7 ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.3, this Agreement
may not be assigned by the Servicer. This Agreement may not be assigned by
the Trustee except as provided by Sections 10.11 through 10.14 hereof.
Section 12.8 CERTIFICATES NONASSESSABLE AND FULLY PAID. The
interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon
authentication thereof by the Trustee pursuant to Section 6.1, each
Certificate shall be deemed fully paid.
Section 12.9 INTENTION OF PARTIES. (a) The execution and
delivery of this Agreement shall constitute an acknowledgment by the Seller
and the Trustee, on behalf of the Certificateholders, that it is intended
that the assignment and transfer herein contemplated constitute a sale and
assignment outright, and not for security, of the Receivables and the other
Trust Property, conveying good title thereto free and clear of any liens,
from the Seller to the Trust, and that the Receivables and the other Trust
Property shall not be a part of the Seller's estate in the event of the
bankruptcy, insolvency, receivership, conservatorship or the occurrence of
another similar event of, or with respect to, the Seller. In the event that
such conveyance is determined to be made as security for a loan made by the
Trust or the Certificateholders to the Seller, the parties intend that the
Seller shall have granted to the Trustee a security interest in all of the
Seller's right, title and interest in, to and under the Trust Property
conveyed to the Trust pursuant to Section 2.1 in order to secure the
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obligations under the Certificates, and that this Agreement shall constitute
a security agreement under applicable law.
(b) The execution and delivery of this Agreement shall
constitute an acknowledgment by the Seller and the Trustee on behalf of the
Certificateholders that they intend that the Trust be classified (for Federal
tax purposes) as a grantor trust under Subpart E, Part I of Subchapter J of
the Code of which the Certificateholders are owners, rather than as an
association taxable as a corporation. The powers granted and obligations
undertaken in this Agreement shall be construed so as to further such intent.
The Seller, the Trustee and the Certificateholders shall take no action that
is inconsistent with treating the Trust as a grantor trust for federal income
tax purposes.
Section 12.10 COUNTERPARTS. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed in one or more counterparts, and by different parties hereto on
separate counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute one and the same
instrument.
Section 12.11 LIMITATION OF LIABILITY OF THE TRUSTEE AND THE
COLLATERAL AGENT. Notwithstanding anything contained herein to the contrary
(i) this Agreement has been accepted by Bankers Trust Company, not in its
individual capacity but solely as Trustee and as Collateral Agent with
respect to the Reserve Account and the Yield Supplement Account and in no
event shall Bankers Trust Company have any liability for the representations,
warranties, covenants, agreements or other obligations of the Seller
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto, as to all of which recourse shall be had solely to the
assets of the Seller and (ii) under no circumstances shall Bankers Trust
Company be personally liable for the payment of any indebtedness or expenses
of the Trust; PROVIDED, HOWEVER, nothing contained herein shall relieve
Bankers Trust Company of its obligations contained herein in its capacity as
successor servicer. Notwithstanding anything to the contrary contained
herein, the Collateral Agent shall have the same rights, protections,
immunities and indemnities afforded to the Trustee hereunder.
* * * * *
-78-
IN WITNESS WHEREOF, the parties hereto have caused this Pooling
and Servicing Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
FIRST SECURITY BANK, N.A.,
as Seller and Servicer
By:
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Officer
BANKERS TRUST COMPANY,
not in its individual
capacity but solely as
Trustee
By:
------------------------------------
Name:
--------------------------
Title:
-------------------------
BANKERS TRUST COMPANY,
not in its individual
capacity but solely as
Collateral Agent
By:
------------------------------------
Name:
--------------------------
Title:
-------------------------
-79-
EXHIBIT A
FORM OF CLASS A CERTIFICATE
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF FIRST SECURITY BANK, N.A.
OR ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE RECEIVABLES ARE NOT
DEPOSITS AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
FIRST SECURITY AUTO GRANTOR TRUST ____-_
____% ASSET BACKED CERTIFICATE, CLASS A
Evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of
motor vehicle retail installment sale contracts and motor
vehicle retail installment loans secured by the new and
used automobiles and light-duty trucks financed thereby and
sold to the Trust by First Security Bank, N.A.
NUMBER CUSIP
------------
$
------ ----------------
Original Principal Amount
THIS CERTIFIES THAT CEDE & Co. is the registered owner of a
$_________, nonassessable, fully paid, fractional undivided interest in the
First Security Auto Grantor Trust ____-_ (the "Trust") formed by First
Security Bank, N.A., a national banking association, as seller (the
"Seller"). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of ______________ (as
amended, supplemented or otherwise modified and in effect from time to time,
the "Agreement"), by and among the Seller, First Security Bank, N.A. as
servicer (the "Servicer"), and Bankers Trust Company, as trustee (the
"Trustee") and as collateral agent, a summary of certain of the provisions of
which is set forth on the reverse hereof.
To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "____%
Asset Backed Certificates, Class A" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement, to which the holder of this Certificate by
virtue of the acceptance hereof assents and by which such holder is bound.
The Trust Property includes (as more fully described in the Agreement) a pool
of retail installment sale contracts and retail installment loans (the
"Receivables") for the purchase of the new and used automobiles and
light-duty trucks financed thereby (the "Financed Vehicles"), certain monies
owing or received thereunder after the close of business of the Servicer on
______________ (the "Cutoff Date"), the Seller's security interests in the
Financed Vehicles, certain of the Seller's rights relating to the Receivables
under certain agreements between the Seller and the motor vehicle dealers,
certain rights of the Trust under the related Yield Supplement Agreement and
all proceeds of the foregoing.
Subject to the terms and conditions of the Agreement (including
the availability of funds for distributions) and until the obligations
created by the Agreement shall have terminated in accordance therewith, there
will be distributed, but only from funds on deposit in the Class A
Distribution Account, on the 15th day of each month or, if such 15th day is
not a Business Day, the next succeeding Business Day (each such date, a
"Distribution Date"), commencing ____________ to the Person in whose name
this Certificate is registered at the close of business of the Trustee on the
day immediately preceding such Distribution Date (or, if Definitive
Certificates are issued, the last day of the Collection Period immediately
preceding such Distribution Date) (the "Record Date"), such
Certificateholder's fractional undivided interest in the amounts to be
distributed to Class A Certificateholders pursuant to the Agreement on such
Distribution Date.
Distributions on this Certificate will be made by the Trustee
by check mailed to the Certificateholder of record at its address as it
appears in the Certificate Register without the presentation or surrender of
this Certificate or the making of any notation hereon, except that with
respect to a Certificate registered in the name of a Clearing Agency or its
nominee, distributions will be made by wire transfer of immediately available
funds. Except as otherwise provided in the
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
This Certificate does not purport to summarize the Agreement
and reference is hereby made to the Agreement for information with respect to
the rights, benefits, obligations and duties evidenced thereby. A copy of
the Agreement may be examined during normal business hours at the Corporate
Trust Office of the Trustee, located at Bankers Trust Company, Four Albany
Street, 10th Floor, New York, New York 10006 Attention: Corporate Trust and
Agency Group-Structured Finance, and at such other places, if any, designated
by the Trustee, by any Certificateholder upon request.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and
not in its individual capacity, has caused this Certificate to be duly
executed.
FIRST SECURITY AUTO GRANTOR TRUST
By: Bankers Trust Company,
not in its individual capacity, but
solely as Trustee
By:
------------------------------------
Authorized Officer
DATED:
---------------
Trustee's Certificate of
Authentication:
A-4
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
----------------------------------
Authorized Officer
A-5
REVERSE OF CERTIFICATE
FIRST SECURITY AUTO GRANTOR TRUST ____-_
____% ASSET BACKED CERTIFICATE, CLASS A
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights of the
Certificateholders under the Agreement at any time by the Seller, the Servicer
and the Trustee with the consent of the holders of Certificates evidencing not
less than a majority of the aggregate outstanding principal balance of the Class
A Certificates and the Class B Certificates taken together as a single class.
Any such consent by the holder of this Certificate shall be conclusive and
binding on such holder and on all future holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
without the consent of the holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee 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.
As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate interest in the Trust, as
requested by the holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
The Seller, the Servicer, the Trustee, and any agent of the
Seller, the Servicer or the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Seller, the Servicer, the Trustee, or any such agent shall be affected by any
notice to the contrary.
A-6
The obligations and responsibilities created by the Agreement and
the Trust created thereby will terminate upon the earliest of (i) the
Distribution Date immediately succeeding the purchase by the Servicer, at its
option, of the Receivables (other than Defaulted Receivables) remaining in the
Trust, as described below, (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to the Agreement, or (iii) the Distribution
Date which is six months after the maturity or the liquidation of the last
Receivable held in the Trust and the disposition of any amounts received upon
liquidation of any property remaining in the Trust; provided, however, that in
no event shall the Trust created by the Agreement continue beyond the expiration
of 21 years from the date hereof. The Agreement provides that the Servicer may,
at its option, purchase the Receivables remaining in the Trust (other than
Defaulted Receivables) at a price equal to the aggregate Purchase Amounts
thereof, and such purchase of the Receivables will effect early retirement of
the Certificates; however, such right of purchase is exercisable only after the
first day of a Collection Period as of which the Pool Balance is 10% or less of
the original Pool Balance and the aggregate Purchase Amount for the Receivables
is greater than or equal to the sum of the Class A Certificate Balance and the
Class B Certificate Balance.
Notwithstanding anything contained in the Agreement to the
contrary (i) the Agreement has been accepted and this Certificate has been
executed by Bankers Trust Company not in its individual capacity but solely as
Trustee and as Collateral Agent with respect to the Reserve Account and the
Yield Supplement Account and in no event shall Bankers Trust Company have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Seller thereunder or in any of the certificates, notices or
agreements delivered pursuant thereto, as to all of which recourse shall be had
solely to the assets of the Seller and (ii) except in its capacity as successor
Servicer, under no circumstances shall Bankers Trust Company be personally
liable for the payment of any indebtedness or expenses of the Trust.
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
(Please print or typewrite name and address, including postal zip code, of
assignee)
the within 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. The signature must be
guaranteed by an institution which is a member of one of the following
recognized
A-8
Signature Guaranty Programs: (i) The Securities Transfer Agent Medallion
Program; (ii) The New York Stock Exchange Medallion Program; (iii) The Stock
Exchange Medallion Program; or (iv) in such other guarantee program
acceptable to the Trustee.
A-9
EXHIBIT B
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE REPRESENTS A FRACTIONAL UNDIVIDED INTEREST IN THE TRUST AND
DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF FIRST SECURITY BANK, N.A. OR
ANY AFFILIATE THEREOF. THIS CERTIFICATE AND THE RECEIVABLES ARE NOT DEPOSITS
AND ARE NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
OR ANY OTHER GOVERNMENTAL AGENCY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE AND ANY BENEFICIAL INTEREST IN THIS CERTIFICATE MAY NOT BE
ACQUIRED BY (a) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")), THAT IS
SUBJECT TO THE PROVISIONS OF TITLE 1 OF ERISA, (b) A PLAN DESCRIBED IN SECTION
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (c) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY (EACH A "BENEFIT PLAN"). BY ACCEPTING AND HOLDING THIS CERTIFICATE
OR AN INTEREST HEREIN, THE HOLDER HEREOF OR OWNER HEREOF SHALL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT IS NOT A BENEFIT PLAN.
FIRST SECURITY AUTO GRANTOR TRUST ____-_
____% ASSET BACKED CERTIFICATE, CLASS B
Evidencing a fractional undivided interest in the Trust, as
defined below, the property of which includes a pool of
motor vehicle retail installment sale contracts and motor
vehicle retail installment loans secured by the new and
used automobiles and light-duty trucks financed thereby and
sold to the Trust by First Security Bank, N.A.
NUMBER CUSIP
-----------
$
------- ----------------------------
Original Principal Amount
THIS CERTIFIES THAT CEDE & CO. is the registered owner of a
$ , nonassessable, fully paid, fractional undivided interest in the First
Security Auto Grantor Trust ____-_ (the "Trust") formed by First Security Bank,
N.A., a national banking association, as seller (the "Seller"). The Trust was
created pursuant to a Pooling and Servicing Agreement dated as of ______________
(as amended, supplemented or otherwise modified and in effect from time to time,
the "Agreement") by and among the Seller, First Security Bank, N.A., as servicer
(in such capacity, the "Servicer"), and Bankers Trust Company, as trustee (the
"Trustee") and as collateral agent, a summary of certain of the provisions of
which is set forth an the reverse hereof.
To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Agreement. This
Certificate is one of the duly authorized Certificates designated as "____%
Asset Backed Certificates, Class B" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions, and
conditions of the Agreement, to which the holder of this Certificate by virtue
of the acceptance hereof assents and by which such holder is bound. The Trust
Property includes (as more fully described in the Agreement) a pool of retail
installment sale contracts and retail installment loans (the "Receivables") for
the purchase of the new and used automobiles and light-duty trucks financed
thereby (the "Financed Vehicles"), certain monies owing or received thereunder
after the close of business of the Servicer on ______________ (the "Cutoff
Date"), the Seller's security interests in the Financed Vehicles, certain of the
Seller's rights relating to the Receivables under certain agreements between the
Seller and the motor vehicle dealers, certain rights of the Trust under the
related Yield Supplement Agreement and all proceeds of the foregoing.
Subject to the terms and conditions of the Agreement (including
the availability of funds for distributions) and until the obligations created
by the Agreement shall have terminated in accordance therewith, there will be
distributed, but only from funds on deposit in the Class B Distribution Account,
on the 15th day of each month or, if such 15th day is not a Business Day, the
next succeeding Business Day (each such date, a "Distribution Date"), commencing
____________, to the Person in whose name this Certificate is registered at the
close of business of the Trustee on the day immediately preceding such
Distribution Date (or, if Definitive Certificates are issued, the last day of
the Collection Period immediately preceding such Distribution Date) (the "Record
Date"), such Certificateholder's fractional undivided interest in the amounts to
be distributed to Class B Certificateholders pursuant to the Agreement on such
Distribution Date.
Pursuant to the Agreement distributions of interest and principal
on the Class B Certificates will be subordinated in priority of payment to
interest and principal due on the Class A Certificates in the event of defaults
and delinquencies on the Receivables. The Class B Certificateholders will not
receive any distributions of interest with respect to a Collection Period until
the full amount of interest on the Class A Certificates relating to such
Collection Period has been deposited in the Class A Distribution Account, and
the Class B Certificateholders will not receive any distributions of principal
with respect to such Collection Period until the full amount of
interest on and principal of the Class A Certificates relating to such
Collection Period has been deposited in the Class A Distribution Account as
set forth in the Agreement.
Distributions on this Certificate will be made by the Trustee by
check mailed to the Certificateholder of record at its address as it appears in
the Certificate Register without the presentation or surrender of this
Certificate or the making of any notation hereon, except that with respect to a
Certificate registered in the name of a Clearing Agency or its nominee,
distributions will be made by wire transfer of immediately available funds.
Except as otherwise provided in the Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for that
purpose by the Trustee in the Borough of Manhattan, The City of New York.
This Certificate does not purport to summarize the Agreement and
reference is hereby made to the Agreement for information with respect to the
rights, benefits, obligations and duties evidenced thereby. A copy of the
Agreement may be examined during normal business hours at the Corporate Trust
Office of the Trustee, located at Bankers Trust Company, Four Albany Street,
10th Floor, New York, New York 10006, Attention: Corporate Trust and Agency
Group-Structured Finance, and at such other places, if any, designated by the
Trustee, by any Certificateholder upon request.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Agreement or be valid for any purpose.
B-3
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust, and not
in its individual capacity, has caused this Certificate to be duly executed.
FIRST SECURITY AUTO GRANTOR
TRUST ____-_
By: Bankers Trust Company,
not in its individual capacity, but
solely as Trustee
By:
--------------------------
Authorized Officer
DATED:
--------------
Trustee's Certificate of
Authentication:
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Officer
B-4
REVERSE OF CERTIFICATE
FIRST SECURITY AUTO GRANTOR TRUST ____-_
____% ASSET BACKED CERTIFICATE, CLASS B
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights of the
Certificateholders under the Agreement at any time by the Seller, the Servicer
and the Trustee with the consent of the holders of Certificates evidencing not
less than a majority of the aggregate outstanding principal balance of the Class
A Certificates and the Class B Certificates taken together as a single class.
Any such consent by the holder of this Certificate shall be conclusive and
binding on such Holder and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
without the consent of the holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the office or agency maintained by the Trustee in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee 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.
As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denominations evidencing the same aggregate interest in the Trust, as
requested by the holder surrendering the same. No service charge will be made
for any such registration of transfer or exchange, but the Trustee may require
payment of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
The Seller, the Servicer, the Trustee, and any agent of the
Seller, the Servicer or the Trustee may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Seller, the Servicer, the Trustee, or any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Agreement and
the Trust created thereby will terminate upon the earliest of (i) the
Distribution Date immediately succeeding the purchase by the Servicer, at its
option, of the Receivables (other than Defaulted Receivables) remaining in the
Trust, as described below, (ii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to the Agreement, or (iii) the Distribution
Date which is six months after the maturity or the liquidation of the last
Receivable held in the Trust and the disposition of any amounts received upon
liquidation of any property remaining in the Trust; provided, however, that in
no event shall the Trust created by the Agreement continue beyond the expiration
of 21 years from the date hereof. The Agreement provides that the Servicer may,
at its
B-5
option, purchase the Receivables remaining in the Trust (other than Defaulted
Receivables) at a price equal to the aggregate Purchase Amounts thereof, and
such purchase of the Receivables will effect early retirement of the
Certificates; however, such right of purchase is exercisable only after the
first day of a Collection Period as of which the Pool Balance is 10% or less
of the Original Pool Balance and the aggregate Purchase Amount for the
Receivables is greater than or equal to the sum of the Class A Certificate
Balance and the Class B Certificate Balance.
Notwithstanding anything contained in the Agreement to the
contrary (i) the Agreement has been accepted and this Certificate has been
executed by Bankers Trust Company not in its individual capacity but solely as
Trustee and as Collateral Agent with respect to the Reserve Account and the
Yield Supplement Account, and in no event shall Bankers Trust Company have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Seller thereunder or in any of the certificates, notices or
agreements delivered pursuant thereto, as to all of which recourse shall be had
solely to the assets of the Seller and (ii) except in its capacity as successor
Servicer, under no circumstances shall Bankers Trust Company be personally
liable for the payment of any indebtedness or expenses of the Trust.
B-6
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
Please print or typewrite 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. The signature must be
guaranteed by an institution which is a member of one of the following
recognized Signature Guaranty Programs: (i) The Securities Transfer Agent
Medallion Program; (ii) The New York Stock Exchange Medallion Program; (iii) The
Stock Exchange Medallion Program; or (iv) in such other guarantee program
acceptable to the Trustee.
B-7
EXHIBIT C
FORM OF SERVICER'S CERTIFICATE
The undersigned certifies that he is a duly authorized officer of
First Security Bank, N.A., a national banking association organized under the
laws of the United States (the "BANK"), and that he is duly authorized to
execute and deliver this certificate on behalf of the Bank pursuant to Section
3.9 of the Pooling and Servicing Agreement, dated as of ______________, by and
between the Bank, as seller and servicer, and Bankers Trust Company, as trustee
(the "POOLING AND SERVICING AGREEMENT"), and he further HEREBY CERTIFIES that:
1. the report for the period from ___________________ to
___________ attached to this certificate is complete and accurate and contains
all information required by Section 3.9 of the Pooling and Servicing Agreement;
and
2. as of the date hereof, no Event of Servicing Termination or
event that with notice or lapse of time or both would become an Event of
Servicing Termination, has occurred.
Any capitalized terms used herein but not defined shall have the
meanings assigned to such term in the Pooling and Servicing Agreement.
IN WITNESS HEREOF, the undersigned has affixed hereunto his
signature and the corporate seal of the Bank as of this ___ day of
______________.
FIRST SECURITY BANK, N.A.
By:____________________________
Name:
Title: Authorized Officer
EXHIBIT D
FORM OF DEPOSITORY AGREEMENT
(See attached)
EXHIBIT E
FORM OF YIELD SUPPLEMENT AGREEMENT
(See attached)
FORM OF
YIELD SUPPLEMENT AGREEMENT
First Security Auto Grantor Trust ____-_
c/o Bankers Trust Company, as Trustee
and as Collateral Agent
Four Albany Street, 10th Floor
New York, New York 10006
Attn: Corporate Trust and Agency Group-Structured Finance
______________
Ladies and Gentlemen:
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, we (the "SELLER") hereby confirm arrangements
made as of the date hereof with you (the "TRUST") to be effective upon receipt
by the Seller of the enclosed copy of this letter agreement (as amended,
supplemented or otherwise modified and in effect from time to time, the "YIELD
SUPPLEMENT AGREEMENT").
1. On or prior to the Determination Date preceding each
Distribution Date, the Servicer shall notify the Trust and the Seller of the
Yield Supplement Amount for such Distribution Date.
2. The Seller agrees to establish a Yield Supplement Account
pursuant to Article V of the Pooling and Servicing Agreement, dated as of
______________ (as amended, supplemented or otherwise modified and in effect
from time to time, the "POOLING AND SERVICING AGREEMENT") by and among the
Seller, in its individual capacity and as a servicer (the "SERVICER"), and
Bankers Trust Company, a New York banking corporation, as trustee thereunder
(the "TRUSTEE") and as collateral agent thereunder with respect to the Reserve
Account and the Yield Supplement Account (in such capacity, the "COLLATERAL
AGENT"), and the Seller hereby agrees to deposit to the Certificate Account an
amount equal to the Yield Supplement Amount prior to 11:00 a.m. New York time on
each Deposit Date. If and to the extent that such amounts shall not have been
paid by the Seller in full on the Distribution Date, then, in such event,
pursuant to Section 5.2(d) of the Pooling and Servicing Agreement, the Trustee
shall instruct the Collateral Agent to withdraw the amount of any such
insufficiency from the Yield Supplement Account and deposit such funds into the
Certificate Account.
3. All payments pursuant hereto shall be made by federal wire
transfer (same day funds) or in immediately available funds, to the Certificate
Account (as the Trustee on behalf of the Trust designates in writing to the
Seller prior to the relevant Distribution Date).
4. Our agreements set forth in this Yield Supplement Agreement
are our primary obligations and such obligations are irrevocable, absolute and
unconditional, shall not be subject to any counterclaim, setoff or defense
(other than full and strict compliance by us with our obligations hereunder) and
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by, any circumstances or condition
whatsoever.
5. This Yield Supplement Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
6. All demands, notices and communications under this Yield
Supplement Agreement shall be in writing, personally delivered, sent by
telecopier, Federal Express or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt. All
notices shall be directed as set forth below, or to such other address or to the
attention of such other Person as the relevant party shall have designated for
such purpose in a written notice.
The Trust:
First Security Auto Grantor Trust ____-_
c/o Bankers Trust Company, as Trustee
Four Albany Street, 10th Floor
New York, New York 10006
Attention: Corporate Trust and Agency Group-Structured Finance
Telecopy: 000-000-0000
The Seller:
First Security Bank, N.A.
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Executive Vice President and General Counsel
Telecopy: (000) 000-0000
7. This Yield Supplement Agreement may be executed in one or
more counterparts and by the different parties hereto on separate counterparts,
each of which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute one and the same document.
8. Capitalized terms used herein but not otherwise defined
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
-2-
If the foregoing satisfactorily sets forth the terms and
conditions of our agreement, please indicate your acceptance thereof by signing
in the space provided below and returning to us the enclosed duplicate original
of this letter.
Very truly yours,
FIRST SECURITY BANK, N.A.
By:__________________________________
Name: Xxxxx X. Xxxxxxx
Title: Authorized Officer
Agreed and accepted as of
the date first above written:
FIRST SECURITY AUTO GRANTOR TRUST ____-_
By: Bankers Trust Company,
not in its individual capacity, but solely
as Trustee and as Collateral Agent
By: __________________________________
Authorized Signatory
SCHEDULE A
SCHEDULE OF RECEIVABLES
(See attached)
SCHEDULE B
RECEIVABLE FILE LOCATIONS
On the date hereof, the Receivables and Receivable Files for the Servicer
are held by the Consumer Loan Servicing Department of First Security Service
Company, an affiliate of the Servicer, located at 0000 Xxxxx Xxxxxx, Xxxxx,
Xxxxx 00000.
